Exhibit 10.15
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") dated April 28, 1999
(the "EXECUTION DATE") by and between XXXXXX.XXX LTD., a New York corporation
("AGENCY") and EAGLE RIVER INTERACTIVE INC., a Delaware corporation ("ERI").
W I T N E S S E T H
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WHEREAS, the respective Boards of Directors of each of the parties
hereto have determined that it is advisable and in the best interests of their
respective corporations and their respective shareholders to consummate, and
have approved, the business combination transaction provided for herein in which
ERI would merge with and into Agency (the "MERGER") upon the terms and subject
to the conditions of this Agreement;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, the parties hereby agree
as follows:
ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.2 below), ERI shall be
merged with and into Agency and the separate corporate existence of ERI shall
thereupon cease. Agency (i) shall be the successor or surviving corporation in
the Merger (sometimes herein referred to as the "SURVIVING CORPORATION"), (ii)
shall continue to be governed by the laws of the State of New York, and (iii)
the separate corporate existence of Agency with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger. The
Merger shall have the effects specified in Section 259 of the Delaware General
Corporation Law (the "DGCL") and Section 906 of the New York Business
Corporation Law (the "NYBCL").
SECTION 1.2. EFFECTIVE TIME. Agency and ERI will cause (i) an executed
original of an appropriate Certificate of Merger (the "CERTIFICATE OF MERGER")
to be filed with the Secretary of State of the State of New York pursuant to
Sections 904-A, 907 and 104 of the NYBCL, and (ii) an executed original of an
appropriate Certificate of Merger of ERI into Agency to be filed with the
Secretary of State of the State of Delaware, pursuant to Sections 252 and 103 of
the DGCL. The Merger shall become effective on the date on which the Certificate
of Merger has been duly filed with the Secretary of State of New York, and such
time is hereinafter referred to as the "EFFECTIVE TIME."
SECTION 1.3. CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE SURVIVING
CORPORATION. The Certificate of Incorporation of the Surviving Corporation shall
be at and as of the Effective Time, the Certificate of Incorporation of Agency
immediately prior to the Effective
Time. The By-laws of the Surviving Corporation shall be, at and as of the
Effective Time, the By-laws of Agency immediately prior to the Effective Time.
ARTICLE II
CONVERSION AND CANCELLATION OF SHARES AND OPTIONS
SECTION 2.1. ERI SHARES. All of the shares of the common stock, no par
value per share, of ERI (the "ERI SHARES") issued and outstanding immediately
prior to the Effective Time of the Merger shall, by virtue of the Merger,
automatically and without any action on the part of the holder thereof,
become and be converted into 1,829,774 shares of common stock, $0.001 par
value per share, of Agency (the "AGENCY SHARES") and 2,164,376 warrants to
purchase Agency Shares, such warrants to be evidenced by a warrant
substantially in the form of EXHIBIT A hereto.
SECTION 2.2. AGENCY SHARES. Each share of common stock, $0.001 par
value per share, of Agency issued and outstanding immediately prior to the
Effective Time of the Merger shall, at the Effective Time, continue to be issued
and outstanding, be unchanged and remain as one fully paid and non-assessable
share of common stock, $0.001 par value per share, of Agency.
SECTION 2.3. SURRENDER OF ERI SHARES AND ISSUANCE OF AGENCY SHARES.
SCHEDULE 2.3 sets forth the following (i) a list of each holder of record of ERI
Shares at the Effective Time, (ii) the number of ERI Shares owned by each holder
of record of ER1 Shares at the Effective Time, and (iii) the number of Agency
Shares to be received by each such holder of record of ERI Shares at the
Effective Time. At the Closing (as defined in Section 2.4 below), each holder of
record of ERI Shares at the Effective Time shall surrender the certificate(s)
representing such shares to Agency and in exchange therefor shall receive a
certificate registered in such holder's name representing that number of whole
shares of Agency Shares into which such holder's ERI Shares shall have been
converted pursuant to Section 2.1 above as set forth on SCHEDULE 2.3. Thereupon,
the certificates representing the ERI Shares shall be canceled. No fractional
shares shall be issued and no cash in lieu of fractional shares shall be paid to
a holder of ERI Shares.
SECTION 2.4. CLOSING. The Closing under this Agreement (the "CLOSING")
shall take place simultaneously with the execution and delivery of this
Agreement, or such other time and date agreed upon by the parties, at the
offices of Xxxxx & Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
date of the Closing is herein referred to as the "CLOSING DATE". Notwithstanding
the foregoing, it is the intention of the parties that for the purposes of
providing Agency with an interest in the profits and losses of ERI, the
effective date of this Agreement shall be the opening of business on April l,
1999.
ARTICLE III
REPRESENTATIONS OF ERI
ERI represents and warrants to Agency as follows:
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SECTION 3.1. EXECUTION AND VALIDITY OF AGREEMENT. ERI has the full
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement by ERI and the
consummation by ERI of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of ERI and the holders of all of
the issued and outstanding ERI Shares. This Agreement has been duly and validly
executed and delivered by ERI and, assuming due authorization, execution and
delivery by Agency, constitutes the legal, valid and binding obligation of ERI
enforceable against it in accordance with its terms.
SECTION 3.2. NON-CONTRAVENTION; APPROVALS AND CONSENTS.
3.2.1. NON-CONTRAVENTION. The execution, delivery and performance by
ERI of its obligations hereunder and the consummation of the transactions
contemplated hereby, will not conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any Person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any mortgage, lien, security interest, encumbrance,
claim, charge and restriction of any kind or character (collectively, "LIENS")
upon any of the assets or properties of ERI under, any of the terms, conditions
or provisions of (a) the Certificate of Incorporation or By-laws of ERI, or (b)
any statute, law, rule, regulation or ordinance (collectively, "LAWS"), or any
judgment, decree, order, writ, citation, permit or License (collectively,
"ORDERS"), of any court, tribunal, arbitrator, authority, agency, commission,
official or other instrumentality of the United States, any foreign country or
any domestic or foreign state, county, city or other political subdivision (a
"GOVERNMENTAL OR REGULATORY AUTHORITY"), applicable to ERI or any of its assets
or properties, or (c) any note, bond, mortgage, security agreement, indenture,
license, franchise, permit, concession, contract, lease or other instrument,
obligation or agreement of any kind (collectively, "CONTRACTS") to which ERI is
a party or by which ERI or any of its assets or properties are bound.
3.2.2. APPROVALS AND CONSENTS. Except for the filings pursuant to the
DGCL and NYBCL, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other Person is necessary or required
under any of the terms, conditions or provisions of any Law or Order of any
Governmental or Regulatory Authority or any Contract to which ERI is a party or
by which ERI or any of its assets or properties are bound for the execution and
delivery of this Agreement by ERI, the performance by ERI of its obligations
hereunder or the consummation of the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS OF AGENCY
Agency represents and warrants to ERI as follows:
SECTION 4.1. EXECUTION AND VALIDITY OF AGREEMENT. Agency has the full
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance of
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this Agreement by Agency and the consummation by Agency of the transactions
contemplated hereby have been duly and validly authorized by all required
corporate action on behalf of Agency and, to the extent required by applicable
law, its shareholders. This Agreement has been duly and validly executed and
delivered by Agency and, assuming due authorization, execution and delivery by
ERI, constitutes the legal, valid and binding obligations of Agency enforceable
against it in accordance with its terms.
SECTION 4.2. NON-CONTRAVENTION; APPROVALS AND CONSENTS.
4.2.1. NON-CONTRAVENTION. The execution, delivery and performance by
Agency of its obligations hereunder and the consummation of the transactions
contemplated hereby, will not conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any Person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any Lien upon any of the assets or properties of
Agency under, any of the terms, conditions or provisions of (a) the Certificate
of Incorporation or By-laws of Agency, or (b) subject to the taking of the
actions described in Section 4.2.2, any Laws or Orders of any Governmental or
Regulatory Authority, applicable to Agency or any of its assets or properties.
4.2.2. APPROVALS AND CONSENTS. Except for the filings pursuant to the
NYBCL and DGCL, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other Person is necessary or required
under any of the terms, conditions or provisions of any Law or Order of any
Governmental or Regulatory Authority or any Contract to which Agency is a party
or by which Agency or any of its assets or properties are bound for the
execution and delivery of this Agreement by Agency, the performance by Agency of
its obligations hereunder or the consummation of the transactions contemplated
hereby.
SECTION 4.3. AGENCY SHARES. The Agency Shares to be delivered to the
shareholders of ERI pursuant to this Agreement have been duly authorized for
issuance by all requisite corporate action by Agency, and when delivered as
provided herein, will be validly issued and outstanding shares of voting common
stock of Agency, fully paid and non-assessable, and will not be subject to
preemptive rights of any Person.
ARTICLE V
ACTIONS AT CLOSING BY ERI
Simultaneously herewith:
SECTION 5.1. CERTIFIED RESOLUTIONS. ERI shall have delivered to Agency
a copy of the resolutions of its Board of Directors and shareholders authorizing
the execution, delivery and performance of this Agreement and the transactions
contemplated hereby, certified by an officer of ERI.
SECTION 5.2. INVESTMENT REPRESENTATION CERTIFICATE. Each of the
shareholders of ERI shall have executed and delivered an Investment
Representation Certificate substantially in the form of EXHIBIT B hereto.
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SECTION 5.3. EMPLOYMENT AGREEMENTS. Xxxxx Xxxx shall have entered into
an Employment Agreement with Agency substantially in the form of EXHIBIT C
hereto.
ARTICLE VI
ACTIONS AT CLOSING BY AGENCY
Simultaneously herewith:
SECTION 6.1. CERTIFIED RESOLUTIONS. Agency shall have delivered to ERI
a copy of the resolutions of the Boards of Directors and shareholders of Agency
authorizing the execution, delivery and performance of this Agreement and the
transactions contemplated hereby, certified to by the Secretary of Agency.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. SURVIVAL. Notwithstanding any right of any party hereto
fully to investigate the affairs of any other party, and notwithstanding any
knowledge of facts determined or determinable pursuant to such investigation or
right of investigation, each party hereto shall have the right to rely fully
upon the representations, warranties, covenants and agreements of any other
party contained in this Agreement or in any Schedule furnished by another party
or in any certificate delivered at the Closing by any other party. The
respective representations and warranties of ERI and Agency contained in this
Agreement or in any Schedule, or in any certificate delivered at the Closing,
shall expire with, and be terminated and extinguished by, the Merger, and
thereafter, neither ERI nor Agency, nor any officer, director or shareholder
thereof shall be under any liability with respect to any such representation or
warranty or condition or covenant. This Section 7.1 shall have no effect upon
any other obligation of the parties hereto, whether to be performed before or
after the Closing.
SECTION 7.2. EXPENSES. Agency and ERI shall pay all of their own
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsels,
financial advisors and accountants.
SECTION 7.3. GOVERNING LAW. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of New York without reference to its conflict of laws provisions.
SECTION 7.4. "PERSON" DEFINED. "PERSON" shall mean and include an
individual, a partnership, a joint venture, a corporation, a limited liability
company, a trust, an unincorporated organization and a government or other
department or agency thereof.
SECTION 7.5. CAPTIONS. The Article and Section captions used herein are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
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SECTION 7.6. PUBLIC ANNOUNCEMENTS. Agency and ERI will consult with
each other and Omnicom Group Inc. ("OMNICOM") before issuing any press releases
or otherwise making any public statements with respect to this Agreement or any
of the transactions contemplated hereby and shall not issue any such press
release or make any public statement without the prior consent of the other
party and Omnicom which shall not be unreasonably withheld, except as may be
required by Law or by obligations pursuant to any listing agreements with any
national securities exchange to which Omnicom or Agency is a party.
SECTION 7.7. PARTIES IN INTEREST. This Agreement and the rights and
obligations of the parties hereunder shall not be assignable to any Person
without the written consent of all parties.
SECTION 7.8. SEVERABILITY. In the event any provision of this Agreement
is found to be void and unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same effect as though the void or unenforceable part had been
severed and deleted.
SECTION 7.9. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which taken together shall constitute one instrument.
SECTION 7.10. ENTIRE AGREEMENT. This Agreement, including the Schedules
and Exhibits, and other documents referred to herein which form a part hereof,
contains the entire understanding of the parties hereto with respect to the
subject matter contained herein and therein. This Agreement supersedes all prior
oral and written agreements and understandings between the parties with respect
to such subject matter.
SECTION 7.11. AMENDMENT. This Agreement and the Schedules heretofore
delivered may be amended, supplemented or modified by the parties hereto only by
an agreement in writing signed on behalf of each of the parties hereto following
due authorization at any time.
SECTION 7.12. THIRD PARTV BENEFICIARIES. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto and their respective
successors and assigns as permitted under Section 7.7 and Omnicom.
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IN WITNESS WHEREOF, Agency and ERI have each caused its corporate name
to be hereunto subscribed by its officer thereunto duly authorized on the day
and year first above written.
XXXXXX.XXX LTD.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Chief Financial Officer
EAGLE RIVER INTERACTIVE INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Vice President
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SCHEDULE 2.3
(ERI/AGENCY MERGER)
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WARRANTS
NUMBER OF SHARES OF EXERCISABLE INTO
SHARES OF ERI XXXXXX.XXX LTD. TO XXXXXX.XXX LTD.
COMMON STOCK BE RECEIVED IN COMMON STOCK TO BE
SHAREHOLDER OWNED MERGER RECEIVED IN MERGER
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Omnicon Group Inc. 100 1,829,774 2,164,376
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