1
EXHIBIT 2.4
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement"),
dated as of June 6, 1997, is entered into by and between VIASYSTEMS GROUP,
INC., a Delaware corporation (the "Company") and CHIPS HOLDINGS, INC., a
Delaware Corporation ("Holdings").
RECITALS:
WHEREAS, the Company and Holdings deem it advisable and to the
advantage of such entities that Holdings merge with and into the Company (the
"Merger") upon the terms and conditions herein provided in a transaction
intended to qualify as a "reorganization" within the meaning of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, the parties do hereby adopt this Merger Agreement
and do hereby agree that Holdings shall merge with and into the Company on the
following terms, conditions, and other provisions:
ARTICLE I
THE MERGER
1.1 Merger. Upon the terms and subject to the conditions set
forth in this Merger Agreement, Holdings shall be merged with and into the
Company at the Effective Time (as hereinafter defined), with the Company
surviving the Merger (the "Surviving Corporation"). At the Effective Time, the
separate existence of Holdings shall cease and the Company shall continue as
the Surviving Corporation. The Surviving Corporation shall be governed by the
laws of the State of Delaware.
1.2 Effective Time of the Merger. Subject to the provisions
of this Agreement, the Company and Holdings shall cause the Merger to be
consummated by filing a certificate of merger ("Certificate of Merger") with
the Secretary of State of the State of Delaware, as soon as practicable on or
after the date the Closing occurs. The Merger shall become effective upon the
date when the Certificate of Merger is filed with the Secretary of State of
Delaware or at such later time as may be specified in the Certificate of Merger
(the "Effective Time").
2
1.3 Effects of Merger. (a) The Merger shall have the effects
as set forth in the applicable provisions of the General Corporation Law of the
State of Delaware (the "DGCL").
(b) Subject to clause (i) below, from and after the Effective
Time, the Certificate of Incorporation of the Company (the "Certificate of
Incorporation") shall be the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the terms thereof and the
DGCL.
(i) At the Effective Time of the Merger, the first paragraph
of Article Fourth of the Certificate of Incorporation of the Company shall be
amended to read in its entirety as follows:
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is
500,000,000 shares consisting of (a) 30,000,000 shares of a class
designated as Preferred Stock, par value $.01 per share
("Preferred Stock"), of which 8,000,000 shares have been
designated as Series A Preferred Stock (the "Series A Preferred
Stock"), 6,000,000 shares have been designated as Series B
Preferred Stock (the "Series B Preferred Stock"), and 8,000,000
shares have been designated as Series C Preferred Stock, (b)
423,000,000 shares of a class designated Common Stock, par value
$.01 per share ("Common Stock"), and (c) 47,000,000 shares of a
class designated Class A Common Stock, par value $.01 per share
("Class A Common Stock").
(c) From and after the Effective Time, the Bylaws of the
Company shall be the Bylaws of the Surviving Corporation until duly amended in
accordance with the terms thereof and the DGCL.
(d) The directors and officers of the Company immediately
prior to the Effective Time shall, from and after the Effective Time, continue
to serve as the directors and officers of the Surviving Corporation until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and Bylaws.
3
ARTICLE II
CONVERSION OF SECURITIES
2.1 Common Stock of Holdings. At the Effective Time, by virtue of the
Merger and without any action on the part of the stockholders of Company or the
stockholders of Holdings, the common stock of Holdings shall be converted into
the right to receive an aggregate of 140,000,000 shares of Common Stock of the
Company, to be allocated among the stockholders of Holdings pro rata in
accordance with their respective ownership of Holdings Common Stock.
2.2 Conversion of Series A and Series C Preferred Stock of the
Company. Concurrent with the Merger, the Series A Preferred Stock, par value
$.01 per share, and Series C Preferred Stock, par value $.01 per share, of the
Company (collectively, the "HM Preferred Stock") shall be converted into the
right to receive shares of the Company's Common Stock valued at $1.00 pro rata
in accordance with the initial liquidation preference of $25.00 per share set
forth in the Amended and Restated Certificate of Incorporation and Certificate
of Designation relating to the Series A Preferred Stock and the Series C
Preferred Stock, respectively, in the aggregate amount of $85,000,000, without
regard to any accrued and unpaid dividends.
2.3 Capital Stock of the Company. Except as provided in Section 2.2,
each share of the Company's capital stock outstanding as of the Effective Time,
shall remain outstanding and shall be unaffected by the Merger.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Holdings. Holdings represents
and warrants to the Company as follows:
(a) Organization and Existence. Holdings is a duly organized
and validly existing corporation under the laws of the State of Delaware and
has all requisite corporate power and authority to own its assets and to carry
on its business as now being conducted and to consummate the transactions
contemplated by this Merger Agreement.
(b) Capitalization of Holdings. The stockholders of Holdings
are Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P., a Delaware limited
partnership, and HM3
3
4
Coinvestors, L.P., a Texas limited partnership. There are no outstanding
options, warrants, calls, subscriptions, claims or other rights, agreements or
commitments obligating Holdings to issue any additional capital stock or any
other securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of the capital stock of Holdings.
(c) Authority. Holdings has all requisite corporate power and
authority to enter into this Merger Agreement and perform its obligations
hereunder. The execution, delivery and performance of this Merger Agreement
have been duly authorized by all necessary corporate action on the part of
Holdings, and this Merger Agreement has been duly executed and delivered by
Holdings. This Merger Agreement has been duly and validly executed and
delivered by Holdings and constitutes the legal, valid and binding obligation
of Holdings, enforceable against Holdings in accordance with its terms subject,
as to enforceability, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability affecting
the rights of creditors and to general principles of equity.
(d) No Conflict. The execution, delivery and performance by
Holdings of this Merger Agreement does not and will not (a) violate or
contravene in any material respect or be in conflict in any material respect
with (i) any provision of the Certificate of Incorporation of Holdings or the
Bylaws of Holdings, (ii) any provision of any law, rule or regulation
applicable to Holdings, (iii) any order, judgment or decree of any court or
other agency applicable to Holdings, (b) violate, result in a breach of or
constitute a default under any term of any material mortgage, indenture,
contract or agreement to which Holdings is a party or by which it or any of its
respective properties is bound, or (c) result in the creation of any liens,
pledges, charges, restrictions, options, rights of first offer or refusal,
security interests, or other encumbrances of any character whatsoever, whether
written or oral and whether or not relating to the extension of credit or the
borrowing of money ("Encumbrances") on any of the properties or assets of
Holdings.
3.2 Representations and Warranties of the Company. The Company
hereby represents and warrants to Holdings as follows:
(a) Corporate Existence. The Company is duly organized and
validly existing under the laws of the State of Delaware and has all requisite
corporate power and authority to own its assets and to carry on its business as
now being conducted and to consummate the transactions contemplated by this
Merger Agreement.
(b) Capitalization. The duly authorized capital stock of the
Company consists of (i) 30,000,000 shares of Preferred Stock, par value $.01
per share ("Preferred
4
5
Stock"), of which (a) 8,000,000 shares have been designated Series A Preferred
Stock, (b) 6,000,000 shares have been designated Series B Preferred Stock, of
which 1,200,000 shares are issued and outstanding and (c) 8,000,000 shares have
been designated Series C Preferred Stock, (ii) 423,000,000 shares of common
stock, par value $.01 per share (the "Common Stock"), of which 255,000,004
shares will be issued and outstanding after giving effect to the Merger and
(iii) 47,000,000 shares of Class A Common Stock, par value $.01 per share
("Class A Common Stock"), of which 34,835,832 shares will be issued and
outstanding after giving effect to the Merger. Except for the Class A Common
Stock, employee stock options outstanding on the date hereof, and warrants to
purchase an aggregate of 1,745,167 shares of Common Stock to be issued pursuant
to the Warrant Agreement dated as of the date hereof between the Company and
Xxxxx Xxxxxx Shareholder Services, L.L.C. (which warrants will be extinguished
upon the consummation of the Merger and the repayment of certain senior credit
facilities), as warrant agent, there are no options, warrants, calls,
subscriptions, conversion or other rights, agreements or commitments obligating
the Company to issue any additional shares of capital stock or any other
securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of capital stock of the Company. When issued in
accordance with the provisions of this Merger Agreement, the shares of Common
Stock to be issued in the Merger will be duly authorized, validly issued, fully
paid and non-assessable and will be free and clear of any and all Encumbrances.
(c) Corporate Authorization. The Company has all requisite
corporate power and authority to enter into this Merger Agreement, issue the
shares of Common Stock to be issued pursuant hereto, and perform its
obligations hereunder. The execution, delivery and performance of this Merger
Agreement have been duly authorized by all necessary corporate action on the
part of the Company. The Merger Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms subject, as to
enforceability, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability affecting
the rights of creditors and to general principles of equity.
(d) No Conflict. The execution, delivery and performance by
the Company of this Merger Agreement does not and will not (a) violate or
contravene in any material respect or be in conflict in any material respect
with (i) any provision of the certificate of incorporation or bylaws of the
Company, (ii) any provision of any law, rule or regulation applicable to the
Company, (iii) any order, judgment or decree of any court or other agency
applicable to the Company, (b) violate, result in a breach of or constitute a
default under any term of any material mortgage, indenture, contract or
agreement to which
5
6
the Company is a party or by which it or any of its properties is bound, or (c)
result in the creation of any Encumbrance on any of the properties or assets of
the Company.
ARTICLE IV
MISCELLANEOUS
4.1 Governing Law. This Merger Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
4.2 Abandonment. At any time before the Effective Time, this Merger
Agreement may be terminated and the Merger contemplated hereby may be abandoned
by the board of directors of the Company, or the board of directors of
Holdings, or both, notwithstanding approval of this Merger Agreement by the
stockholders of the Company and/or the stockholders of Holdings.
4.3 Amendment. At any time after obtaining the approval of the
stockholders of the Company or the stockholders of Holdings, this Merger
Agreement may be amended in any manner (except that any of the principal terms
may not be amended without the approval of the stockholders of the Company or
the stockholders of Holdings), as may be determined in the judgment of the
board of directors of the Company or the board of directors of Holdings to be
necessary, desirable, or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purpose and intent of this Merger
Agreement.
4.4 Counterparts. This Merger Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute, collectively, one and the same instrument.
4.5 Tax-Free Reorganization. The Merger is intended to qualify as a
"reorganization" for purposes of Section 368(a)(1)(A) of the Code. The parties
shall file all tax returns consistent with such treatment and shall comply with
the reporting and recordkeeping requirements of Treasury Regulation section
1.368-3.
6
7
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the board of directors of the Company, the board of directors of
Holdings, the stockholders of Holdings, and the stockholders of the Company, is
hereby executed on behalf of the Company and Holdings by the respective duly
authorized officers of both the Company and Holdings.
VIASYSTEMS GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CHIPS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
7
8
CERTIFICATE OF ASSISTANT SECRETARY
OF
VIASYSTEMS GROUP, INC.
The undersigned, Xxxxx X. Xxxxxxx, hereby certifies that she is
the duly elected and presently incumbent Assistant Secretary of Viasystems
Group, Inc., a Delaware corporation (the "Company"), and hereby further
certifies as follows:
The Agreement and Plan of Merger (the "Agreement") to which this
Certificate of Assistant Secretary is attached was executed by a duly
authorized officer of the Company, and was duly adopted by the board of
directors of the Company with approval of the stockholders of the Company in
accordance with the first sentence of Section 251(f) of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned does hereby execute this
Certificate of Secretary.
Dated: June 6, 1997 /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Assistant Secretary
8
9
CERTIFICATE OF ASSISTANT SECRETARY
OF
CHIPS HOLDINGS, INC.
The undersigned, Xxxxx X. Xxxxxxx, hereby certifies that she is
the duly elected and presently incumbent Assistant Secretary of Chips Holdings,
Inc., a Delaware corporation (the "Holdings"), and hereby further certifies as
follows:
The Agreement and Plan of Merger (the "Agreement") to which this
Certificate of Assistant Secretary is attached was executed by a duly
authorized officer of the Holdings, and was duly adopted by the board of
directors of the Holdings with approval of the stockholders of the Holdings in
accordance with the first sentence of Section 251(f) of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned does hereby execute this
Certificate of Secretary.
Dated: June 6, 1997 /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Assistant Secretary
9
