EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
May 10, 2004, is among Waste Corporation of America, Inc., a Delaware
corporation (the "Company"), WCA Waste Corporation, a Delaware corporation and a
direct, wholly-owned subsidiary of the Company ("Holding"), and WCA Merger
Corporation, a Delaware corporation ("Merger Sub") and a direct, wholly-owned
subsidiary of Holding.
RECITALS:
WHEREAS, the Company's authorized capital stock consists of (i) 20,000,000
shares of common stock, par value $0.01 per share (the "Company Common Stock"),
of which 4,188,499 shares are issued and outstanding, and (ii) 8,000,000 shares
of preferred stock, par value $0.01 per share, of which (A) 2,150,000 shares
have been designated as Convertible Preferred Stock Series A (the "Company
Series A Preferred Stock"), 1,428,572 of which are currently outstanding, and
(B) 5,048,077 shares have been designated as Convertible Preferred Stock Series
B (the "Company Series B Preferred Stock"), all of which are currently
outstanding; and
WHEREAS, as of the date hereof, Holding's authorized capital stock
consists of (i) 20,000,000 shares of common stock, par value $0.01 per share
(the "Holding Common Stock"), of which 10,000 shares are issued and outstanding
and owned by the Company, and (ii) 8,000,000 shares of preferred stock, par
value $0.01 per share, of which (A) 2,150,000 shares have been designated as
Convertible Preferred Stock Series A (the "Holding Series A Preferred Stock"),
none of which are currently outstanding, and (B) 5,048,077 shares have been
designated as Convertible Preferred Stock Series B (the "Holding Series B
Preferred Stock"), none of which are currently outstanding; and
WHEREAS, as of the date hereof, Merger Sub has an authorized capital stock
consisting of 100,000 shares of common stock, par value $0.01 per share (the
"Merger Sub Common Stock"), of which 10,000 shares are issued and outstanding
and owned by Holding; and
WHEREAS, the designations, rights and preferences, and the qualifications,
limitations and restrictions thereof, of the Holding Common Stock, the Holding
Series A Preferred Stock and the Holding Series B Preferred Stock are the same
as those of the Company Common Stock, the Company Series A Preferred Stock and
the Company Series B Preferred Stock, respectively; and
WHEREAS, the Certificate of Incorporation of Holding (the "Holding
Charter") and the Bylaws of Holding (the "Holding By-laws") immediately after
the Effective Time (as hereinafter defined) will contain provisions identical to
the Certificate of Incorporation of the Company, as amended (the "Company
Charter") and Bylaws of the Company (the "Company By-laws") immediately before
the Effective Time (other than with respect to matters excepted by Section
251(g) of the General Corporation Law of the State of Delaware (the "DGCL"));
and
WHEREAS, the directors and officers of the Company immediately prior to
the Merger (as hereinafter defined) will be the directors and officers of
Holding as of the Effective Time; and
WHEREAS, Holding and Merger Sub are newly formed corporations organized
for the purpose of participating in the transactions herein contemplated; and
WHEREAS, the Company desires to create a new holding company structure by
merging Merger Sub with and into the Company with the Company continuing as the
surviving corporation of such merger, and each outstanding share of Company
Common Stock, Company Series A Preferred Stock and Company Series B Preferred
Stock being converted in such merger into a like number of shares of Holding
Common Stock, Holding Series A Preferred Stock and Holding Series B Preferred
Stock, respectively, all in accordance with the terms of this Agreement (the
"Merger");
WHEREAS, the Company, Holding and Merger Sub intend that the Merger will
be a nontaxable transaction under the Internal Revenue Code of 1986, as amended,
and that this Agreement will qualify as a plan of reorganization under Treasury
Regulation Section 1.368-1; and
WHEREAS, the boards of directors of Holding, Merger Sub and the Company,
and Holding, in its capacity as the sole stockholder of Merger Sub, have
approved this Agreement and the Merger;
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements contained in this Agreement, and intending to be
legally bound hereby, the Company, Holding and Merger Sub hereby agree as
follows:
ARTICLE 1
THE MERGER
SECTION 1.1 THE MERGER. In accordance with Section 251(g) of the DGCL and
subject to and upon the terms and conditions of this Agreement, Merger Sub
shall, at the Effective Time (defined below), be merged with and into the
Company, the separate corporate existence of Merger Sub shall cease and the
Company shall continue as the surviving corporation of the Merger (the
"Surviving Corporation"). At the Effective Time, the effect of the Merger shall
be as provided in Section 259 of the DGCL.
SECTION 1.2 EFFECTIVE DATE. The parties shall file this Agreement,
executed in accordance with the relevant provisions of the DGCL, with the
Secretary of State of the State of Delaware (the "Secretary of State") and shall
make all other filings or recordings required under the DGCL to effectuate the
Merger. The Merger shall become effective as of the date and time the Secretary
of State accepts this Agreement for filing, as indicated by the Secretary of
State's filing endorsement thereon, in accordance with Section 103 of the DGCL
(such date and time being referred to herein as the "Effective Time").
SECTION 1.3 CERTIFICATE OF INCORPORATION. From and after the Effective
Time, the Company's Charter, as in effect immediately prior to the Effective
Time, shall be the certificate of incorporation of the Surviving Corporation
(the "Surviving Corporation's Charter") until thereafter amended as provided by
law; provided, however, that, from and after the Effective Time a new FIFTEENTH
paragraph shall be added thereto, which shall read in its entirety as follows:
"FIFTEENTH: Any act or transaction by or involving the
Corporation that requires for its adoption under the General
Corporation Law of the State of Delaware or this Certificate
of Incorporation the approval of the stockholders of this
Corporation shall, pursuant to Section 251(g) of the General
Corporation Law of the State of Delaware, require, in addition,
the approval of the stockholders of
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WCA Waste Corporation, a Delaware corporation, or any successor thereto by
merger, by the same vote that is required by the General Corporation Law
of the State of Delaware and/or this Certificate of Incorporation."
SECTION 1.4 BYLAWS. From and after the Effective Time, the Company Bylaws,
as in effect immediately prior to the Effective Time, shall constitute the
Bylaws of the Surviving Corporation until thereafter amended as provided therein
or by applicable law.
SECTION 1.5 DIRECTORS. The directors of the Company immediately prior to
the Effective Time shall be the initial directors of the Surviving Corporation
and will hold office from the Effective Time until their successors are duly
elected or appointed and qualified in the manner provided in the Surviving
Corporation's Charter and the Bylaws of the Surviving Corporation or as
otherwise provided by law.
SECTION 1.6 OFFICERS. The officers of the Company immediately prior to the
Effective Date shall be the officers of the Surviving Corporation until the
earlier of their resignation or removal or until their successors are duly
elected or appointed and qualified in the manner provided in the Surviving
Corporation's Charter and the Bylaws of the Surviving Corporation or as
otherwise provided by law.
SECTION 1.7 CONVERSION OF SECURITIES. At the Effective Time, by virtue of
the Merger and without any action on the part of Holding, Merger Sub, the
Company or the holder of any of the following securities:
(a) Conversion of Company Common Stock. Each share of Company Common Stock
issued and outstanding immediately prior to the Effective Time shall be
converted into and thereafter represent one duly issued, fully paid and
nonassessable share of Holding Common Stock.
(b) Conversion of Company Series A Preferred Stock. Each share of Company
Series A Preferred Stock issued and outstanding immediately prior to the
Effective Time shall be converted into and thereafter represent one duly issued,
fully paid and nonassessable share of Holding Series A Preferred Stock.
(c) Conversion of Company Series B Preferred Stock. Each share of Company
Series B Preferred Stock issued and outstanding immediately prior to the
Effective Time shall be converted into and thereafter represent one duly issued,
fully paid and nonassessable share of Holding Series B Preferred Stock.
(d) Conversion of Company Options. Each option for the purchase of Company
Common Stock issued pursuant to the Company's 1999 Non-Qualified Stock Option
Plan and outstanding immediately prior to the Effective Time (each a "Company
Option") shall be converted into and thereafter represent one option for the
purchase of Holding Common Stock issued pursuant to Holding's 2004 Non-Qualified
Stock Option Plan (each a "Holding Option"), the material terms and conditions
of which Holding Option shall be substantially identical in all material
respects to those of such Company Option converted.
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(e) Conversion of Company Warrants. Each warrant for the purchase of
Company Common Stock issued and outstanding immediately prior to the Effective
Time (each a "Company Warrant") shall be converted into and thereafter represent
one duly issued warrant for the purchase of Holding Common Stock (each a
"Holding Warrant"), the material terms and conditions of which Holding Warrant
shall be substantially identical in all material respects to those of such
Company Warrant converted.
(f) Conversion of Capital Stock of Merger Sub. Each share of Merger Sub
Common Stock issued and outstanding immediately prior to the Effective Time
shall be converted into and thereafter represent one duly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share, of the Surviving
Corporation.
(g) Cancellation of Capital Stock of Holding. Each share of Holding Common
Stock that is owned by the Company immediately prior to the Merger shall
automatically be cancelled and retired and shall cease to exist.
(h) Rights of Certificate Holders. From and after the Effective Time,
holders of certificates formerly evidencing Company Common Stock, Company Series
A Preferred Stock or Company Series B Preferred Stock shall cease to have any
rights as stockholders of the Company, except as provided by law; provided,
however, that such holders shall have the rights set forth in Section 1.8 of
this Agreement.
SECTION 1.8 NO SURRENDER OF CERTIFICATES. Until thereafter surrendered for
transfer or exchange in the ordinary course, each outstanding stock certificate
that, immediately prior to the Effective Time, evidenced Company Common Stock,
Company Series A Preferred Stock or Company Series B Preferred Stock shall be
deemed and treated for all corporate purposes to evidence the ownership of the
number of shares of Holding Common Stock, Holding Series A Preferred Stock or
Holding Series B Preferred Stock, respectively, into which such shares of
Company Common Stock, Company Series A Preferred Stock or Company Series B
Preferred Stock were converted pursuant to the provisions of Section 1.7(a), (b)
or (c) of this Agreement.
ARTICLE 2
COVENANTS
SECTION 2.1 ELECTION OF DIRECTORS. Effective immediately prior to the
Effective Time, the Company, in its capacity as the sole stockholder of Holding,
will cause the board of directors of Holding to effect, and Holding hereby
agrees to effect, such amendments to the Holding Bylaws as are necessary to
increase the number of directors of Holding to equal the number of directors of
the Company, and the Company, in its capacity as the sole stockholder of
Holding, will elect each person who is then a member of the board of directors
of the Company as a director of Holding, (and to be the only directors of
Holding) each of whom shall serve until the next annual meeting of stockholders
of Holding and until his successor shall have been elected and qualified.
SECTION 2.2 CAPITAL CONTRIBUTION COMMITMENT AND GUARANTY.
(a) Simultaneously with the consummation of the Merger, Holding shall
enter into a capital contribution commitment agreement with the Company in the
form agreed to by the Holding and the Company (the "Capital Contribution
Commitment Agreement"), pursuant to
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which WCA Waste will, as additional consideration for Waste Corp entering into
this Agreement and consummating the Merger, agree to make a contribution to the
capital of Waste Corp in the amount of $20 million if and when WCA Waste closes
an initial public offering of shares of WCA Waste Common Stock on or before
August 31, 2004.
(b) Simultaneously with the consummation of the Merger, Holding shall also
execute and deliver to Waste Management, Inc. a guaranty agreement (the
"Guaranty Agreement"), pursuant to which Holding will agree to guarantee payment
of all of the obligations of the Company pursuant to that certain promissory
note dated September 28, 2000 payable by the Company to Waste Management, Inc.
in the initial principal amount of $10,446,582. By its terms, such Guaranty
Agreement shall only become effective if Holding fails to close an initial
public offering of shares of Holding Common Stock ("IPO") on or before August
31, 2004 or if the IPO is terminated on or before or extended to a date after
August 31, 2004.
ARTICLE 3
TERMINATION AND AMENDMENT
SECTION 3.1 TERMINATION. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time by
action of the board of directors of the Company, Holding or Merger Sub if it is
determined that for any reason the completion of the transactions provided for
herein would be inadvisable or not in the best interest of such corporation or
its stockholders. In the event of such termination and abandonment, this
Agreement shall become void, and neither the Company, Holding or Merger Sub nor
their respective stockholders, directors or officers shall have any liability
with respect to such termination and abandonment.
SECTION 3.2 AMENDMENT. This Agreement may be supplemented, amended or
modified by the mutual consent of the boards of directors of the parties to this
Agreement.
ARTICLE 4
MISCELLANEOUS PROVISIONS
SECTION 4.1 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws.
SECTION 4.2 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which shall constitute one and the same agreement.
SECTION 4.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto and supersedes all other prior or
contemporaneous agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, Holding, Merger Sub and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
WASTE CORPORATION OF AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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WCA WASTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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WCA MERGER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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SECRETARY'S CERTIFICATE
I, Xxx X. Xxxxx, III, Secretary of Waste Corporation of America, Inc., a
corporation organized and existing under the laws of the State of Delaware,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached, after having been first duly signed on behalf of said corporation
and having been duly signed on behalf of WCA Merger Corporation, a Delaware
corporation, and WCA Waste Corporation, a Delaware corporation, was duly adopted
pursuant to Subsection (g) of Section 251 of the Delaware General Corporation
Law and the conditions specified in the first sentence of such Subsection have
been satisfied; and that the Agreement and Plan of Merger was thereby adopted by
action of the board of directors of Waste Corporation of America, Inc., and is
the duly adopted agreement and act of said corporation.
WITNESS my hand on this 10th day of May, 2004.
/s/ Xxx X. Xxxxx, III
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Xxx X. Xxxxx, III, Secretary
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