AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (herein "Agreement") is made on
the 24th day of February, 1997 by and between XXXXXX XX LIMITED PARTNERSHIP, an
Oklahoma limited partnership, FLEET VENTURE RESOURCES, INC., a Rhode Island
corporation, FLEET EQUITY PARTNERS VI, L.P., a Delaware limited partnership,
XXXXXXX PLAZA PARTNERS, a Rhode Island general partnership, XXXXXX TELEPHONE
COMPANY, INC., an Oklahoma corporation, and XXXXXXX X. XXXXXX, an individual,
all of the Shareholders of Xxxxxx Communications Corporation (herein
"Shareholders"), XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma corporation,
(herein "Xxxxxx Communications"), and XXXXXX HOLDINGS CORPORATION, an Oklahoma
corporation (herein "Xxxxxx Holdings").
PLAN OF REORGANIZATION
Under its current organization, Xxxxxx Communications functions as the
parent company of multiple subsidiary operations which conduct various business
operations. The current organizational structure is set out as Exhibit "A" to
this Agreement.
In addition, Xxxxxx Telephone Company, Inc. (herein "Xxxxxx Telephone"), a
subsidiary of Xxxxxx Communications, owns non-voting common stock in Xxxxxx
Communications.
In order to carry on its expanding business operations in an efficient
manner and to enhance its financing opportunities, the Shareholders of Xxxxxx
Communications agree to this Plan of Reorganization set forth herein.
Xxxxxx Holdings is a new corporation which has been formed under the
Oklahoma General Corporation Act (the "Act").
Under the proposed reorganization, Xxxxxx Holdings shall acquire all of
the outstanding Class A Common Stock, Class C Non-Voting Common Stock and Class
B Convertible Preferred Stock of Xxxxxx Communications. In exchange, the
holders of the Class A Common Stock and Class B Convertible Preferred Stock of
Xxxxxx Communications shall receive equivalent shares of stock of Xxxxxx
Holdings. The holders of the Class C Non-Voting Common Stock of Xxxxxx
Communications shall receive 100,000 shares of Class A Preferred Stock of Xxxxxx
Holdings. In addition, Xxxxxx Holdings shall assume all outstanding options to
purchase shares of Class B
Non-Voting Common Stock of Xxxxxx Communications. As a result, Xxxxxx
Holdings will be the parent company of Xxxxxx Communications.
For financing purposes, it is necessary to separate certain of the
subsidiaries from the other subsidiaries (herein "Other Subsidiaries"). To do
this, the stock of the Other Subsidiaries will be distributed to Xxxxxx
Holdings, so that Xxxxxx Communications shall be the holding company for only
those remaining subsidiaries not transferred under this Agreement. The Other
Subsidiaries referenced herein are set forth at paragraph 3A of this Agreement.
For practical reasons, Xxxxxx Communications will change its corporate name
to Xxxxxx Operating Company and Xxxxxx Holdings will change its corporate name
to Xxxxxx Communications Corporation. The final structure of the proposed
reorganized reorganization is set forth as Exhibit "B" to this Agreement.
The commencement of business in the reorganized organizational form will
take place at the close of business, February ___, 1997 (called "Effective
Date"). The changes in the corporate structure are to be accomplished at
various times prior to the Effective Date.
AGREEMENT AMONG THE PARTIES
In order to consummate the above Plan of Reorganization and in
consideration of the mutual benefits to be derived and the mutual agreements
contained, the Shareholders, Xxxxxx Communications and Xxxxxx Holdings approve
and adopt this Agreement and Plan of Reorganization and mutually covenant with
each other as follows:
1. SHARES TO BE TRANSFERRED AND SHARES TO BE ISSUED.
A. The share exchange is to take place on February ___, 1997 (called
"Closing Date") at 4:30 p.m. CST in the offices of Xxxxxx
Communications in Oklahoma City, Oklahoma.
B. On the Closing Date, the Shareholders shall transfer to Xxxxxx
Holdings, Certificates for the number of shares of Xxxxxx
Communications stock described below, which in the
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 2
aggregate shall represent all of the outstanding Class A Common Stock,
Class C Non-Voting Common Stock and Class B Preferred Stock of Xxxxxx
Communications Corporation. The certificates shall be duly endorsed
in blank by the Shareholders.
(1) Xxxxxx XX Limited Partnership
469,998 shares,
Class A Common Stock, $1.00 par value;
(2) Xxxxxxx X. Xxxxxx
3,154 shares,
Class A Common Stock, $1.00 par value;
(3) Fleet Equity Partners VI, L.P. ("FEPVI")
29,762 shares,
Class B Convertible Preferred Stock, $1.00 par value;
(4) Fleet Venture Resources, Inc. ("FVR")
69,446 shares,
Class B Convertible Preferred Stock, $1.00 par value;
(5) Xxxxxxx Plaza Partners ("KPP")
792 shares,
Class B Convertible Preferred Stock, $1.00 par value;
(6) Xxxxxx Telephone Company, Inc.
470,020 shares,
Class C Non-Voting Common Stock, $1.00 par value.
C. In exchange for stock of Xxxxxx Communications being transferred to it
pursuant to the preceding paragraph, Xxxxxx Holdings shall, on the
Closing Date and contemporaneously with the transfer of the stock to
it, issue and deliver to such Shareholders the number of shares of
Xxxxxx Holdings specified and described below.
(1) Xxxxxx XX Limited Partnership
469,998 shares,
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 3
Class A Common Stock, $1.00 par value;
(2) Xxxxxxx X. Xxxxxx
3,154 shares,
Class A Common Stock, $1.00 par value;
(3) Fleet Equity Partners VI, L.P. ("FEPVI")
29,762 shares,
Class B Convertible Preferred Stock, $1.00 par value;
(4) Fleet Venture Resources, Inc. ("FVR")
69,446 shares,
Class B Convertible Preferred Stock, $1.00 par value;
(5) Xxxxxxx Plaza Partners ("KPP")
792 shares,
Class B Convertible Preferred Stock, $1.00 par value;
(6) Xxxxxx Telephone Company, Inc.
100,000 shares,
Class A 5% Non-Cumulative, Non-Voting, Non-Convertible Preferred
Stock, $1.00 par value.
D. In addition, Xxxxxx Holdings shall assume the following options to
purchase the prescribed shares of Class B Non-Voting Common Stock of
Xxxxxx Communications:
(1) Xxxxxx Xxxxxxx
833 shares,
Class B Non-Voting Common Stock;
(2) G. Xxxxxx Xxxxx
6033 shares,
Class B Non-Voting Common Stock;
(3) Xxxxx Xxxxxxxxxxx
7541 shares,
Class B Non-Voting Common Stock.
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 4
2. CORPORATE ORGANIZATION OF THE COMPANY.
X. Xxxxxx Holdings is to be formed for the purposes of carrying out this
share exchange and Plan of Reorganization. Xxxxxx Holdings has been
formed and is to maintain its Certificate of Incorporation in a form
to provide that the nature of the business or purposes to be conducted
or promoted is for the corporation to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Act of Oklahoma.
B. The Bylaws to be adopted by Xxxxxx Holdings are to be substantially
the same as those presently in effect for Xxxxxx Communications.
C. The Certificate of Designations, Preferences and Relative and Other
Special Rights, and Qualifications, Limitations and Restrictions of
Class B Convertible Preferred Stock to be filed with the Oklahoma
Secretary State by Xxxxxx Holdings is to be substantially the same as
the one filed by Xxxxxx Communications, less the "Make-Whole"
provisions.
D. The original directors of Xxxxxx Holdings will be the same directors
presently serving as directors of Xxxxxx Communications.
E. The initial officers of Xxxxxx Holdings will be the same or
substantially the same as those presently serving as officers of
Xxxxxx Communications.
F. The Parties to this Agreement shall enter into a Shareholders'
Agreement in the form as attached hereto, and Xxxxxx Holdings and
Xxxxxx Communications will amend the Securities Purchase Agreement in
the form as attached hereto.
G. Upon completion of the reorganization and in recognition of assumption
by Xxxxxx Communications of the Trust Loans as defined in that certain
Shareholders' Agreement dated March 19, 1996, among Xxxxxx
Communications, FEPVI, FVR and KPP, and to satisfy the Make-Whole
provisions of the
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 5
same Shareholders' Agreement, FEPVI, FVR and KPP will be issued
100,000 shares of Class C 8% Cumulative, Non-Voting, Non-Convertible
Preferred Stock of Xxxxxx Holdings, with the rights and preferences
as set forth in Exhibit "C".
H. The Certificate of Designations, Preferences and Relative and Other
Special Rights, and Qualifications, Limitations and Restrictions of
Class A 5% Non-Cumulative, Non-Voting, Non-Convertible Preferred Stock
to be filed with the Oklahoma Secretary State by Xxxxxx Holdings is
to be in the form attached hereto as Exhibit "D".
3. REALIGNMENT OF PRESENT SUBSIDIARIES
A. The Other Subsidiaries of Xxxxxx Communications will become
subsidiaries of Xxxxxx Holdings based upon a transfer to Xxxxxx
Holdings of all the outstanding stock of such subsidiaries owned by
Xxxxxx Communications on the Effective Date. The following list of
subsidiaries will become subsidiaries of Xxxxxx Holdings:
(1) Logix Communications Corporation;
(2) Xxxxxx Wireless, Inc.;
(3) DCC PCS, Inc.;
(4) Western Financial Services Corp.;
(5) Xxxxxx Network Management, Inc.;
(6) Call Center and Client Outreach Services, Inc.;
(7) Xxxxxx Fiber/Forte of Colorado, Inc.;
(8) Xxxxxx Wireless Cable, Inc.
4. CHANGE OF CORPORATE NAMES AND OTHER MATTERS.
A. The officers, directors and shareholders of Xxxxxx Communications
shall take the necessary steps to change the corporate name of Xxxxxx
Communications Corporation to Xxxxxx Operating Company.
B. The officers and directors of Xxxxxx Holdings shall take the necessary
steps to change the corporate name of Xxxxxx Holdings Corporation to
Xxxxxx Communications Corporation.
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 6
C. Upon completion of the reorganization, all outstanding shares of
capital stock of Xxxxxx Operating Company (except 100 shares of Class
A Common Stock) shall be surrendered and canceled.
D. The changes in corporate structure and other matters contained herein
may take place in a different sequence than set forth in this
Agreement. Such changes in sequence shall not have any effect on the
overall objectives of this Agreement.
5. MAINTENANCE OF BUSINESS OPERATIONS.
After the reorganization is effective, the officers and directors of Xxxxxx
Holdings, Xxxxxx Communications, and all subsidiaries will cause the business
entities to:
A. Carry on their businesses in substantially the same manner as they
have previously and not introduce material new methods of management,
operation or accounting;
B. Maintain their properties and facilities in good working order and
condition;
C. Perform all their material obligations under agreements relating to or
affecting their assets, properties and rights;
D. Keep in full force and effect present insurance policies and other
comparable insurance coverage and add such coverage for Xxxxxx
Holdings as needed;
E. Keep in full force and effect the current pension plan and other
employee benefit plans; and
F. Use their best efforts to maintain and preserve the current business
organizations, retain the present employees and maintain the
relationship with suppliers, customers and others having business
relations with Xxxxxx Holdings and its subsidiaries.
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 7
6. VOLUNTARY SHARE EXCHANGE.
The Shareholders agree and are informed that this transaction by which
Xxxxxx Holdings is to acquire the outstanding Class A Common Stock, Class B Non-
Voting Common Stock (per the outstanding options), Class C Non-Voting Common
Stock and Class B Preferred Stock of Xxxxxx Communications Corporation is
through a voluntary share exchange as permitted under the provisions Section
Section 1090.1 (F) of the Act and the parties agree and intend that all other
provisions of Section Section 1090.1 of the Act do not apply to this transaction
which is intended to and constitutes a voluntary share exchange.
7. FEDERAL COMMUNICATIONS COMMISSION APPROVAL.
This Agreement shall be dependent upon any Federal Communications
Commission ("FCC") approval, as may be required, of the acts set forth herein.
8. COUNTERPARTS.
This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. It shall not be
necessary that any single counterpart hereof be executed by all parties hereto
so long as at least one counterpart is executed by each party.
9. ENTIRE AGREEMENT.
This Agreement (including the Exhibits thereto) constitutes the entire
agreement and understanding between the parties and supersedes any prior
agreement and understanding relating to the subject matter of this Agreement.
This Agreement may be modified or amended only by a duly authorized written
instrument executed by all parties.
10. BINDING EFFECT.
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 8
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, and successors and heirs and legal representatives of the
parties hereto.
This Agreement is executed as of the day and year first above stated.
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 9
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
President
XXXXXX HOLDINGS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
President
SHAREHOLDERS:
XXXXXX XX LIMITED PARTNERSHIP
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
President
XXXXXX TELEPHONE COMPANY, INC.
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
President
By: /s/ XXXXXXX X. XXXXXX
------------------------------
XXXXXXX X. XXXXXX
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 10
FLEET VENTURE RESOURCES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
FLEET EQUITY PARTNERS VI, L.P.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
Fleet Growth Resources II, Inc.
General Partner
XXXXXXX PLAZA PARTNERS
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Managing Partner
AGREEMENT AND PLAN OF REORGANIZATION
PAGE 11
