EXHIBIT 2.1A
AMENDMENT NO. 1
to
AGREEMENT AND PLAN OF MERGER
By and Among
IRON MOUNTAIN INCORPORATED,
ARCUS GROUP, INC.,
UNITED ACQUISITION COMPANY
and
ARCUS TECHNOLOGY SERVICES, INC.
dated as of
November 25, 1997
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of November 25,
1997, by and among Iron Mountain Incorporated, a Delaware corporation
("Acquiror"), Arcus Group, Inc., a Delaware corporation (the "Company"), United
Acquisition Company, a Nevada corporation ("UAC"), and Arcus Technology
Services, Inc., a Delaware corporation ("ATSI").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into an Agreement and Plan of Merger,
dated as of September 26, 1997 (the "Merger Agreement"); and
WHEREAS, the parties hereto wish to amend certain of the terms and
conditions of the Merger Agreement; and
WHEREAS, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Amendment No. 1, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1.
AMENDMENTS
Section 1.1. Section 2.1 (c) of the Merger Agreement shall be deleted in
its entirety and replaced with the following:
"Each Share, each Preferred Share and each warrant to acquire shares
of Company Stock (each, a "Company Stock Warrant" and collectively, the
"Company Stock Warrants") outstanding as of the Effective Time and owned of
record by Acquiror shall automatically be canceled and extinguished without
any exercise or conversion thereof and no exchange or payment shall be made
with respect thereto."
Section 1.2. The last clause of Section 3.16(a)(v) of the Merger Agreement
shall be deleted in its entirety and replaced with the following:
", and commitments under Leases existing on that date or incurred
since that date in the ordinary course of business and regularly scheduled
payments under contracts relating to long-term indebtedness or the current
portion thereof in accordance with the applicable payment schedule."
Section 1.3. Section 6.1(g) of the Merger Agreement shall be deleted in its
entirety and replaced with the following:
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"(g) The holders of all Warrants that have accepted Acquiror's offer
to purchase Warrants and executed a Warrant Purchase Agreement as of the
date hereof shall have sold, and Acquiror shall have purchased, all such
Warrants for a cash purchase price equal to the aggregate Warrant Purchase
Price."
Section 1.4. Section 6.2 shall be amended by deleting "and" at the end of
subsection (i), inserting "and;" in place of the period at the end of subsection
(j) and inserting a new subsection (k) which reads as follows:
"(k) The Arcus Parties shall have furnished Acquiror with such
certificates, at or prior to the Closing Date, evidencing the payment by
the Arcus Parties of substantially all Expenses incurred by each of the
Arcus Parties in connection with or related to this Agreement, the Merger
and the Transactions, using (i) funds drawn under the Credit Facility or
(ii) cash."
Section 1.5. The first sentence of Section 8.3(c) of the Merger
Agreement shall be deleted in its entirety and replaced with following:
"(c) In the event there are no Unresolved Claims (as defined in the
Escrow Agreement), on the nine month anniversary of the Closing Date, or
the next business day if such date is not a business day (the "Initial
Distribution Date"), an aggregate of $3,000,000 of the Escrow Indemnity
Funds less any amounts previously paid to Acquiror from the Escrow
Indemnity Funds (the "Initial Disbursement Amount") shall be distributed to
the Stockholder Representative for the benefit of each former holder of a
Share Certificate and each former holder of a Warrant sold pursuant to a
Warrant Purchase Agreement as follows: (i) to each former holder of a Share
Certificate (or his, her or its nominee or transferee, as set forth in the
Transmittal Documents in respect of the Cash Merger Consideration) an
amount equal to the Initial Disbursement Amount times a fraction, the
numerator of which shall equal the value (calculated based on the
Determination Price) of such former holder's Exchange Common Consideration
and the denominator of which shall equal the Total Primary Equity Base, and
(ii) to each former holder of a Warrant sold pursuant to a Warrant Purchase
Agreement an amount equal to the Initial Disbursement Amount times a
fraction, the numerator of which shall equal the sum of the Warrant
Purchase Price paid to such holder pursuant to a Warrant Purchase Agreement
and the value (calculated based on the Determination Price) of such
holder's Exchange Preferred Consideration and the denominator of which
shall equal the Total Primary Equity Base, as more specifically set forth
in the Warrant Purchase Agreement."
Section 1.6. Article 11 of the Merger Agreement shall be amended by
replacing clauses (ii) and (iii) of the definition of "Fully Diluted Common
Equity Value" with the following clauses:
", (ii) the aggregate exercise price of all Option Securities (whether
vested or unvested and excluding Company Stock Warrants) as of the Effective
Time, and (iii) the aggregate exercise
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price of all Company Stock Warrants which are outstanding as of the
Effective Time (without giving effect to Section 2.1(c))."
Section 1.7. Article 11 of the Merger Agreement shall be amended by
replacing clause (ii) of the definition of "Fully Diluted Common Shares" with
the following clause:
"(ii) the number of Shares of Company Stock which would have been
issued or remained outstanding as a result of the Reorganization had
holders of UAC Common Stock, ATSI Common Stock or Company Stock not
exercised dissenters or appraisal rights in connection with the UAC Merger
or the ATSI Merger, as the case may be,"
Section 1.8. Article 11 of the Merger Agreement shall be amended by
replacing clause (iv) of the definition of "Fully Diluted Common Shares" with
the following clause:
"(iv) the maximum number of Shares of Company Stock which may be
issued pursuant to the Company Stock Warrants which are outstanding as of
the Effective Time (without giving effect to Section 2.1(c))."
Section 1.9. Article 11 of the Merger Agreement shall be amended by
replacing the definition of "Warrant Purchase Price"with the following
definition:
""Warrant Purchase Price" shall mean the dollar amount equal to the
product of (i) the number of shares of UAC Common Stock underlying a
Warrant that will be purchased by Acquiror pursuant to the terms of the
Warrant Purchase Agreement and (ii) the difference between the UAC Equity
Value Per Share and the exercise price per share of UAC Common Stock
applicable to such Warrant."
Section 1.10. Article 11 of the Merger Agreement shall be amended by
replacing the definition of "Warrants" with the following definition:
""Warrants" shall mean the warrants to acquire shares of UAC Common
Stock."
Section 1.11. Article 11 of the Merger Agreement shall be amended by
inserting the following new defined terms in the appropriate alphabetical order:
""Company Stock Warrant" shall have the meaning given to it in Section
2.1(c)."
""Connected Stock" shall mean 158,729 shares of Convertible Series C
Preferred Stock in Connected Corp., a Delaware corporation, held by UAC."
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""Determination Time" shall mean the Closing Date immediately prior to
the purchase of any Warrants by Acquiror pursuant to any agreement."
""Initial Disbursement Amount" shall mean the meaning given to it in
Section 8.3(c)."
""Total ATSI Equity Value" shall mean the total common equity value of
ATSI at the Determination Time as determined in good faith by ATSI based on
the (i) Total Consideration to be paid by Acquiror in the Merger, and (ii)
the Net Indebtedness (excluding cash and cash equivalents held by the
Company and UAC, but assuming the deemed exercise of all outstanding
warrants and options to acquire ATSI Common Stock) at the Determination
Time."
""Total UAC Common Equity Value" equals the total common equity value
of UAC at the Determination Time as determined in good faith by UAC based
on (i) the Total ATSI Equity Value, (ii) the number of fully diluted shares
of ATSI Common Stock outstanding as of the Determination Time (assuming the
exercise of all warrants and options to acquire shares of ATSI Common
Stock) and the number of such shares held by UAC, (iii) cash and cash
equivalents held by UAC (assuming the deemed exercise of all outstanding
options to acquire shares of UAC Common Stock and Warrants), (iv) the value
of the Connected Stock as of the Determination Time, and (v) the UAC
Preferred Equity Value as of the Determination Time."
""UAC Equity Value Per Share" equals the quotient obtained by dividing
(a) the Total UAC Common Equity Value by (b) the sum of (i) the total
number of shares of UAC Common Stock issued and outstanding at the
Determination Time, plus (ii) the total number of shares of UAC Common
Stock which, at the Determination Time, may be issued pursuant to options
to purchase or otherwise acquire shares of UAC Common Stock, whether or not
such options are immediately exercisable, plus (iii) the total number of
shares of UAC Common Stock which, at the Determination Time, may be issued
pursuant to Warrants, whether or not such Warrants are immediately
exercisable."
""UAC Preferred Equity Value" shall mean, as of any time of
determination, the aggregate liquidation preference of the preferred stock
of UAC, calculated in accordance with the Articles of Incorporation of UAC,
at such time."
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Section 1.12. The Merger Agreement shall be amended by replacing Schedules
A, B and C attached thereto with Schedules A, B and C attached hereto.
ARTICLE 2.
GENERAL PROVISIONS
Section 2.1. Severability. If any term or provision of this Amendment No. 1
shall be held or deemed to be, or shall in fact be, invalid, inoperative,
illegal or unenforceable as applied to any particular case in any jurisdiction
or jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Amendment No. 1 shall be reformed and construed in
any such jurisdiction or case as if such invalid, inoperative, illegal or
unenforceable provision had never been contained herein and such provision
reformed so that it would be valid, operative and enforceable to the maximum
extent permitted in such jurisdiction or in such case. Notwithstanding the
foregoing, in the event of any such determination the effect of which is to
Affect Materially and Adversely any Party, the Parties shall negotiate in good
faith to modify this Amendment No. 1 as to effect the original intent of the
Parties as closely as possible to the fullest extent permitted by Applicable Law
in an acceptable manner to the end that the Transactions are fulfilled and
consummated to the maximum extent possible.
Section 2.2. Entire Agreement. This Amendment No. 1 (together with the
Merger Agreement, the Confidentiality Agreement, the Disclosure Schedule, the
Acquiror Disclosure Schedule and the other Collateral Documents delivered in
connection therewith) constitutes the entire agreement of the Parties and
supersedes all prior agreements and undertakings, both written and oral (other
than the Merger Agreement, the Confidentiality Agreement, the Disclosure
Schedule, the Acquiror Disclosure Schedule and the other Collateral Documents
delivered in connection therewith), between the Parties, or any of them, with
respect to the subject matter hereof. The Merger Agreement is hereby ratified
and confirmed in all respects and shall continue in full force and effect.
Section 2.3. Governing Law. The validity, interpretation, construction and
performance of this Amendment No. 1 shall be governed by, and construed in
accordance with, the applicable laws of the United States of America and the
laws of the State of New York applicable to contracts made and performed in such
State and, in any event, without giving effect to any choice or conflict of laws
provision or rule that would cause the application of domestic substantive laws
of any other jurisdiction, except to the extent that the provisions of the DGCL
apply to the Merger.
Section 2.4. Counterparts. This Amendment No. 1 may be executed in one or
more counterparts,
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and by the different Parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 2.5. Mutual Drafting. This Amendment No. 1 is the result of the
joint efforts of Acquiror and the Company, and each provision hereof has been
subject to the mutual consultation, negotiation and agreement of the parties and
there shall be no construction against any Party based on any presumption of
that Party's involvement in the drafting thereof.
Section 2.6. Authority. Each of Acquiror, the Company, UAC and ATSI
represents and warrants that all requisite corporate action necessary for the
valid execution and delivery of this Amendment No. 1 has been duly and
effectively taken.
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IN WITNESS WHEREOF, Acquiror, the Company, UAC and ATSI have caused this
Amendment No. 1 to be executed as of the date first written above by their
respective officers thereunto duly authorized.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Xxxxxxx Xxxxx
_________________________________________
Name: C. Xxxxxxx Xxxxx
Title: Chairman and Chief Executive Officer
ARCUS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman
UNITED ACQUISITION COMPANY
By: /s/ Xxxxxx X. Xxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman
ARCUS TECHNOLOGY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman
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Schedule A
AGREEMENT AND PLAN OF MERGER
OF UAC AND AGI
THIS AGREEMENT AND PLAN OF MERGER (this "UAC Merger Agreement") is made
and entered into this day of , 1997, by and between United
Acquisition Company, a Nevada corporation whose address is 000 Xxxxx Xxxxxx,
Xxxx, Xxxxxx 00000 ("UAC"), and Arcus Group, Inc., a Delaware corporation whose
address is 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 ("AGI") (UAC and
AGI are individually referred to as a "Constituent Corporation" and together
referred to as "Constituent Corporations"). All capitalized terms used herein
shall have the meanings ascribed to them in the IM Merger Agreement, as
hereafter defined, as amended, unless otherwise specified herein.
W I T N E S S E T H:
WHEREAS, UAC is a corporation duly organized and existing under the laws of
the State of Nevada;
WHEREAS, AGI is a corporation duly organized and existing under the laws of
the State of Delaware;
WHEREAS, on the date of this UAC Merger Agreement (except as specified
below), UAC has the authority to issue (i) Three Million (3,000,000) shares of
Common Stock, par value $0.01 per share (the "UAC Common"), One Million One
(1,000,001) shares of which are issued and outstanding; (ii) Two Hundred
Thousand (200,000) shares of undesignated Preferred Stock, no shares of which
are issued and outstanding, and (iii) Fifty Thousand (50,000) shares of Series A
Preferred Stock, par value $0.01 per share (the "UAC Preferred"), 27,396 shares
of which are issued and outstanding after giving effect to the payment of
payment-in-kind dividends through November 20, 1997, as if such payments had
occurred;
WHEREAS, on the date of this UAC Merger Agreement (before giving effect to
the amendments to the Certificate of Incorporation of AGI, discussed below), AGI
has the authority to issue Eleven Million, Six Hundred Sixty-One Thousand, Two
Hundred Ninety (11,661,290) shares of Common Stock, par value $0.0001 per share
(the "AGI Common"), Eleven Million, Four Hundred Twenty-Six Thousand, Five
Hundred Twenty-Five (11,426,525) shares of which are issued and outstanding;
WHEREAS, following the merger of UAC into AGI, AGI will merge with and into
Iron Mountain Incorporated, a Delaware corporation ("IM"), pursuant to the
Agreement and Plan of Merger (the "IM Merger Agreement") by and among IM, AGI,
UAC and Arcus Technology Services, Inc., dated as of September 26, 1997, as
amended pursuant to Amendment No. 1 dated as of November 25, 1997, a true and
correct copy of which agreement and amendment is attached hereto as Appendix A
(the "IM Merger");
WHEREAS, the Board of Directors of each Constituent Corporation has
determined that it is advisable and to the advantage of such Constituent
Corporation and its stockholders that UAC merge with and into AGI, upon the
terms and conditions herein provided; and
WHEREAS, the Board of Directors of each Constituent Corporation has adopted
this UAC Merger Agreement and has directed that this UAC Merger Agreement be
submitted to a vote of such Constituent Corporation's stockholders;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, UAC and AGI hereby agree to merge as follows:
1. Merger UAC shall be merged with and into AGI, and AGI shall survive the
merger ("UAC Merger"), effective upon the date when this UAC Merger Agreement is
made effective in accordance with applicable law (the "UAC Effective Time").
2. Directors and Officers and Governing Documents. The directors and
officers of AGI shall be the same at the UAC Effective Time as they are
immediately prior thereto. The Certificate of Incorporation of AGI, as amended
and restated and in effect at the UAC Effective Time, shall continue to be the
Certificate of Incorporation
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of AGI as the surviving corporation, as amended in accordance with Section 3
hereto, until further amended in accordance with the provisions thereof and
applicable laws. The bylaws of AGI, as amended and in effect at the UAC
Effective Time, shall continue to be the bylaws of AGI as the surviving
corporation without change or amendment until further amended in accordance
with the provisions thereof and applicable laws.
3. Changes in the Certificate of Incorporation To Be Effected By the
Merger. Prior to the UAC Effective Time AGI will amend its Certificate of
Incorporation (i) to create a class of Preferred Shares of which 50,000 shares
shall be authorized for issuance by the Board of Directors, with identical
rights, preferences and privileges applicable to the UAC Preferred, after
giving effect to the amendment to the Articles of Incorporation of UAC on the
Closing Date prior to the UAC Effective Time as contemplated by the IM Merger
Agreement ("UAC Charter Amendments"), (ii) to increase the number of authorized
shares of common stock from 11,661,290 to 100,000,000, and (iii) to exempt the
Merger from the limitations on transfers of shares of AGI, stock set forth in
Article XI of the AGI Certificate (collectively, the "AGI Charter Amendments.")
4. Effect of Merger. From and after the UAC Effective Time, AGI as the
surviving corporation shall possess all rights, privileges, powers and
franchises and be subject to all restrictions, disabilities and duties of UAC
and AGI, including without limitation, any duties to stockholders who exercise
appraisal rights in connection with the UAC Merger, and the UAC Merger shall
have all other effects, as provided under Section 259 of the DGCL. Pursuant to
NRS [sec][sec].92A.250(e) and (f), all ownership rights in UAC shares prior to
the UAC Merger will cease to exist at the UAC Effective Time and the former
holders of UAC shares will be entitled only to the rights provided in this UAC
Merger Agreement or created pursuant to NRS [sec][sec].92A.300 to 92A.500.
5. Stock Transfer Books. At the UAC Effective Time, the stock transfer
books of UAC shall be closed, and there shall be no further registrations or
transfers of UAC Common or UAC Preferred thereafter on the records of UAC other
than to AGI.
6. Further Assurances. From time to time, as and when required by AGI or
by its successors and assigns, there shall be executed and delivered on behalf
of UAC such deeds and other instruments, and there shall be taken or caused to
be taken by it such further and other action, as shall be appropriate or
necessary in order to vest, perfect or confirm, of record or otherwise, in AGI
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of UAC and otherwise
to carry out the purposes of this UAC Merger Agreement, and the officers and
directors of AGI are fully authorized in the name and on behalf of UAC or
otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
7. Merger Consideration. At the UAC Effective Time, by virtue of the UAC
Merger and without any action on the part of the stockholder thereof, (i) each
share of the AGI Common outstanding immediately prior to the UAC Effective Time
(other than Dissenting Shares) shall continue to remain outstanding, (ii)
except as otherwise set forth in clause (iv) below, each share of the UAC
Common outstanding immediately prior to the UAC Effective Time (other than
Dissenting Shares) shall be changed and converted into that number ("UAC Common
Conversion Number") of fully paid and nonassessable shares of AGI Common that
is equal to the quotient of the UAC Equity Value Per Share, as hereafter
defined, divided by the AGI Equity Value Per Share, as hereafter defined, (iii)
each share of the UAC Preferred outstanding immediately prior to the UAC
Effective Time (other than Dissenting Shares), together with any accrued and
unpaid dividends thereon, shall be changed and converted into one (1) fully
paid and nonassessable share of AGI Preferred with the same rights, preferences
and privileges as applicable to the UAC Preferred after giving effect to the
UAC Charter Amendments and the AGI Charter Amendments with an equal amount of
accrued and unpaid dividends thereon and (iv) each share of the UAC Common
outstanding immediately prior to the UAC Effective Time and owned of record by
AGI shall be cancelled.
7.1 UAC Equity Value Per Share. The UAC Equity Value Per Share shall mean
the UAC Equity Value Per Share at the Determination Time under the IM Merger
Agreement, as amended, immediately prior to the purchase of Warrants by IM
pursuant to the Warrant Purchase Agreements (the "Determination Time").
7.2 AGI Equity Value Per Share. The AGI Equity Value Per Share shall mean
(a) the total common equity value of AGI as of the Determination Time as
determined in good faith by AGI based on (i) the Total UAC Common
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Equity Value, (ii) the number of fully diluted shares of UAC Common as of the
Determination Time (assuming the exercise of the Warrants and outstanding
options to acquire UAC Common) and the number of such shares held by AGI, (iii)
the cash and cash equivalents of AGI and (iv) the value of the 57% limited
partnership interest of AGI in Damson East Texas Partners, L.P., valued by AGI
at its fair value, as of the Determination Time, divided by (b) the total
number of shares of AGI Common issued and outstanding as of the Determination
Time.
8. Stock Certificates. At the UAC Effective Time, all of the outstanding
certificates which prior to that time represented shares of UAC Common shall
for all purposes evidence ownership of and represent the shares of AGI Common
into which the shares of UAC Common represented by such certificates have been
converted as herein provided.
9. Warrants. At the UAC Effective Time, each outstanding Warrant (if any)
to purchase shares of UAC Common shall be converted into and become a warrant
to purchase the UAC Warrant Conversion Number of shares of AGI Common as
hereafter defined, at the UAC Warrant Conversion Price, as hereafter defined,
and otherwise upon the same terms and subject to the same conditions as set
forth in the award and agreement pursuant to which the warrant in question was
issued. A sufficient number of shares of AGI Common shall be reserved for
purposes of any outstanding warrants as of the UAC Effective Time. As of the
UAC Effective Time, AGI hereby assumes all obligations of UAC under the awards
and agreements pursuant to which any outstanding UAC warrants were issued.
9.1 UAC Warrant Conversion Number. The UAC Warrant Conversion Number shall
mean (a) the UAC Equity Value Per Share multiplied by the total number of
shares for which the warrant in question may be exercised (whether or not such
warrant is immediately exercisable), divided by (b) the AGI Equity Value Per
Share.
9.2 UAC Warrant Conversion Price. The UAC Warrant Conversion Price shall
mean (a) the per share price for which the warrant in question may be exercised
(whether or not such warrant is immediately exercisable) multiplied by the AGI
Equity Value Per Share at the UAC Effective Time, divided by (b) the UAC Equity
Value Per Share.
10. Stock Options. At the UAC Effective Time, each option ("Plan Option"
or "Options") to purchase shares of UAC Common granted under the UAC 1995 Stock
Option Plan (the "UAC Stock Option Plan") that is outstanding at the
Determination Time shall automatically be converted into and become an option
to purchase the UAC Option Conversion Number, as hereafter defined, of shares
of AGI Common at the UAC Option Conversion Price, as hereafter defined, and
otherwise upon the same terms and subject to the same conditions as set forth
in the UAC Stock Option Plan. A sufficient number of shares of AGI Common shall
be reserved for purposes of the UAC Stock Option Plan as of the UAC Effective
Time. As of the UAC Effective Time, AGI hereby assumes all obligations of UAC
under the UAC Stock Option Plan, the outstanding Plan Options or portions
thereof granted pursuant to the UAC Stock Option Plan. The UAC Option
Conversion Number shall be (a) the UAC Equity Value Per Share multiplied by the
total number of shares for which the option in question may be exercised as of
the UAC Effective Time (whether or not such option is immediately exercisable),
divided by (b) the AGI Equity Value Per Share. The UAC Option Conversion Price
shall mean (a) the per share price for which the option in question may be
exercised at the UAC Effective Time (whether or not such option is immediately
exercisable) multiplied by the AGI Equity Value Per Share, divided by (b) the
UAC Equity Value Per Share.
11. Other Employee Benefit Plans. As of the UAC Effective Time, AGI hereby
assumes all obligations of UAC under and undertakes sponsorship of any and all
employee benefit plans in effect as of said date or with respect to which
employee rights or accrued benefits are outstanding as of said date.
12. Termination. Subject to the terms and conditions of the IM Merger
Agreement, as amended, this UAC Merger Agreement may be terminated and
abandoned whether before or after approval of this Agreement by the
stockholders of UAC or AGI, or both, by mutual consent of the Boards of
Directors of both Constituent Corporations at any time prior to the UAC
Effective Time.
13. Amendment. Subject to the terms and conditions of the IM Merger
Agreement, this UAC Merger Agreement may be amended by the Boards of Directors
of both Constituent Corporations at any time prior to the UAC Effective Time;
provided, however, that after approval of this Agreement by the stockholders of
UAC and
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AGI, no amendment which, under Nevada or Delaware law, would have required
approval of the UAC stockholders or AGI stockholders, respectively, if made
before approval, may be made after approval without the approval of the UAC
stockholders or AGI stockholders, respectively. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
14. Counterparts. This UAC Merger Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, this UAC Merger Agreement, having first been duly
approved by resolution of the boards of directors of UAC and AGI is hereby
executed on behalf of each said two corporations by their respective officers
thereunto duly authorized.
UNITED ACQUISITION COMPANY,
a Nevada corporation
By: --------------------------
Xxxxxx X. Xxxxxx
President and Chief
Executive Officer
By: --------------------------
Xxxxxxx X. Xxxxxx
Secretary
ARCUS GROUP, INC.,
a Delaware corporation
By: --------------------------
Xxxxxx X. Xxxxxx
President and Chief
Executive Officer
By: --------------------------
Xxxxxxx X. Xxxxxx
Secretary
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Schedule B
AGREEMENT AND PLAN OF MERGER
OF ATSI AND AGI
THIS AGREEMENT AND PLAN OF MERGER (this "ATSI Merger Agreement") is made
and entered into this day of , 1997, by and between Arcus
Technology Services, Inc., a Delaware corporation, ("ATSI"), and Arcus Group,
Inc., a Delaware corporation ("AGI") (ATSI and AGI are individually referred to
as a "Constituent Corporation" and together referred to as "Constituent
Corporations"). All capitalized terms used herein shall have the meanings
ascribed to them in the IM Merger Agreement, as hereafter defined, as amended,
unless otherwise specified herein.
W I T N E S S E T H:
WHEREAS, ATSI is a corporation duly organized and existing under the laws
of the State of Delaware;
WHEREAS, AGI is a corporation duly organized and existing under the laws
of the State of Delaware;
WHEREAS, on the date of this ATSI Merger Agreement, ATSI has the authority
to issue Five Million (5,000,000) shares of Common Stock, par value $0.01 per
share (the "ATSI Common"), Three Million, Three Hundred Twenty-Five Thousand,
Two Hundred Twenty-Nine (3,325,229) shares of which are issued and outstanding;
WHEREAS, as of the date of this ATSI Merger Agreement, AGI has the
authority to issue Eleven Million, Six Hundred Sixty-One Thousand, Two Hundred
Ninety (11,661,290) shares of Common Stock, par value $0.0001 per share (the
"AGI Common"), 11,426,525 shares of which are issued and outstanding;
WHEREAS, as of the ATSI Effective Time, as defined below, AGI will have
amended its Certificate of Incorporation to increase the authorized number of
shares of AGI Common from Eleven Million Six Hundred Sixty-One Thousand, Two
Hundred Ninety (11,661,290) to One Hundred Million (100,000,000) and create a
class of preferred shares of which there will be authorized Fifty Thousand
(50,000) shares, par value $0.0001 per share (the "AGI Preferred") with the
same rights, preferences and privileges applicable to shares to Series A
Preferred Stock of UAC, after giving effect to the amendments to the Articles
of incorporation of UAC as contemplated by the IM Merger Agreement, as amended,
(including Schedule C thereto);
WHEREAS, following the merger of ATSI with and into AGI, AGI will merge
with and into Iron Mountain Incorporated, a Delaware corporation ("IM"),
pursuant to the Agreement and Plan of Merger (the "IM Merger Agreement") by and
among IM, AGI, United Acquisition Company, a Delaware corporation ("UAC") and
ATSI, dated as of September 26, 1997, as amended pursuant to Amendment No. 1
dated as of November 25, 1997, a true and correct copy of which agreement and
amendment is attached hereto as Appendix A (the "IM Merger");
WHEREAS, the Board of Directors of each Constituent Corporation has
determined that it is advisable and to the advantage of such Constituent
Corporation and its stockholders that ATSI merge with and into AGI, upon the
terms and conditions herein provided; and
WHEREAS, the Board of Directors of each Constituent Corporation has
adopted this ATSI Merger Agreement and has directed that this ATSI Merger
Agreement be submitted to a vote of such Constituent Corporation's
stockholders;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, ATSI and AGI hereby agree to merge as follows:
1. Merger. ATSI shall be merged with and into AGI, and AGI shall survive
the merger ("ATSI Merger"), effective on the date and at the time when this
ATSI Merger Agreement is made effective in accordance with applicable law (the
"ATSI Effective Time").
2. Directors and Officers and Governing Documents. The directors and
officers of AGI shall be the same at the ATSI Effective Time as they are
immediately prior thereto. The Certificate of Incorporation of AGI, as
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amended and restated and in effect at the ATSI Effective Time, shall continue
to be the Certificate of Incorporation of AGI as the surviving corporation,
until further amended in accordance with the provisions thereof and applicable
laws. The bylaws of AGI, as amended and in effect at the ATSI Effective Time,
shall continue to be the bylaws of AGI as the surviving corporation without
change or amendment until further amended in accordance with the provisions
thereof and applicable laws.
3. Effect of Merger. From and after the ATSI Effective Time, AGI as the
surviving corporation shall possess all rights, privileges, powers and
franchises and be subject to all restrictions, disabilities and duties of ATSI
and AGI, including without limitation, any duties to stockholders who exercise
appraisal rights in connection with the ATSI Merger, and the ATSI Merger shall
have all other effects, as provided under Section 259 of the DGCL. All
ownership rights in ATSI shares prior to the ATSI Merger will cease to exist at
the ATSI Effective Time except as provided by law.
4. Stock Transfer Books. At the ATSI Effective Time, the stock transfer
books of ATSI shall be closed, and there shall be no further registrations or
transfers of ATSI Common thereafter on the records of ATSI other than to AGI.
5. Further Assurances. From time to time, as and when required by AGI or
by its successors and assigns, there shall be executed and delivered on behalf
of ATSI such deeds and other instruments, and there shall be taken or caused to
be taken by it such further and other action, as shall be appropriate or
necessary in order to vest, perfect or confirm, of record or otherwise, in AGI
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of ATSI and otherwise
to carry out the purposes of this ATSI Merger Agreement, and the officers and
directors of AGI are fully authorized in the name and on behalf of ATSI or
otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
6. Merger Consideration. At the ATSI Effective Time, by virtue of the ATSI
Merger and without any action on the part of any stockholder thereof, (i) each
share of the AGI Common and AGI Preferred outstanding immediately prior to the
ATSI Effective Time (other than, as to shares of AGI Common outstanding on the
record date for determining shares entitled to vote on the Merger of UAC with
and into AGI, Dissenting Shares) shall continue to remain outstanding, (ii)
except as set forth in clause (iii) below, each share of the ATSI Common
outstanding immediately prior to the ATSI Effective Time (other than Dissenting
Shares) shall be changed and converted into that number ("ATSI Common
Conversion Number") of fully paid and nonassessable shares of AGI Common that
is equal to the quotient of the ATSI Equity Value Per Share, as hereafter
defined, divided by the AGI Equity Value Per Share, as hereafter defined and
(iii) each share of the ATSI Common outstanding immediately prior to the ATSI
Effective Time and owned of record by AGI shall be cancelled.
6.1 ATSI Equity Value Per Share. The ATSI Equity Value Per Share shall
mean (a) the Total Equity Value of ATSI as of the time of the Closing Date
under the IM Merger Agreement, as amended, immediately prior to the purchase of
Warrants by IM pursuant to the Warrant Purchase Agreements (the "Determination
Time") divided by (b) the sum of (i) the total number of shares of ATSI Common
issued and outstanding as of the Determination Time, plus (ii) the number of
shares of ATSI Common which, as of the Determination Time, may be issued
pursuant to options to purchase or otherwise acquire shares of ATSI Common
whether or not such options are vested or immediately exercisable, plus (iii)
the number of shares of ATSI Common which, as of the Determination Time, may be
issued pursuant to any warrants to purchase or otherwise acquire shares of ATSI
Common whether or not such warrant is immediately exercisable.
6.2 AGI Equity Value Per Share. The AGI Equity Value Per Share shall mean
(a) the total common equity value of AGI as of the Determination Time as
determined in good faith by AGI based on (i) the Total UAC Common Equity Value,
(ii) the number of fully diluted shares of UAC Common as of the Determination
Time (assuming the exercise of the Warrants and outstanding options to acquire
UAC Common) and the number of such shares held by AGI, (iii) the cash and cash
equivalents of AGI and (iv) the value of the 57% limited partnership interest
of AGI in Damson East Texas Partners, L.P., valued by AGI at its fair value, as
of the Determination Time divided by (b) the total number of shares of AGI
Common issued and outstanding as of the Determination Time.
7. Stock Certificates. At the ATSI Effective Time, all of the outstanding
certificates which prior to that time represented shares of ATSI Common shall
for all purposes evidence ownership of and represent the shares of AGI
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Common into which the shares of ATSI Common represented by such certificates
have been converted as herein provided.
8. Warrants. At the ATSI Effective Time, each outstanding warrant (if any)
to purchase shares of ATSI Common shall be converted into and become a warrant
to purchase the AGI Warrant Conversion Number, as hereafter defined, of shares
of AGI Common at the AGI Warrant Conversion Price, as hereafter defined, and
otherwise upon the same terms and subject to the same conditions as set forth
in the award and agreement pursuant to which the warrant in question was
issued. A sufficient number of shares of AGI Common shall be reserved for
purposes of any outstanding warrants as of the ATSI Effective Time. As of the
ATSI Effective Time, AGI hereby assumes all obligations of ATSI under the
awards and agreements pursuant to which any outstanding ATSI warrants were
issued. The ATSI Warrant Conversion Number shall mean the (a) the ATSI Equity
Value Per Share less the exercise price of such warrant, multiplied by (b) the
total number of shares for which the warrant in question may be exercised
(whether or not such warrant is immediately exercisable), divided by (c) the
AGI Equity Value Per Share. The ATSI Warrant Conversion Price shall be one
hundreth of one cent ($0.0001) per underlying share.
9. Stock Options. At the ATSI Effective Time, each outstanding option
("Plan Option" or "Options") to purchase shares of ATSI Common granted under
the UAC Holdings Corporation 1995 Stock Option Plan (the "ATSI Stock Option
Plan") shall be converted into and become an option to purchase the ATSI Option
Conversion Number of shares of AGI Common at the ATSI Option Conversion Price
and otherwise upon the same terms and subject to the same conditions as set
forth in the ATSI Stock Option Plan. A sufficient number of shares of AGI
Common shall be reserved for purposes of the ATSI Stock Option Plan as of the
ATSI Effective Time. As of the ATSI Effective Time, AGI hereby assumes all
obligations of ATSI under the ATSI Stock Option Plan, the outstanding Plan
Options or portions thereof granted pursuant to the ATSI Stock Option Plan. The
ATSI Option Conversion Number shall mean (a) the ATSI Equity Value Per Share
multiplied by the total number of shares for which the option in question may
be exercised as of the Determination Time (whether or not such option is vested
and whether or not such option is immediately exercisable), divided by (b) the
AGI Equity Value Per Share. The ATSI Option Conversion Price shall mean (i) the
per share price for which the option in question may be exercised as of the
Determination Time (whether or not such option is vested and whether or not
such option is immediately exercisable) multiplied by the AGI Equity Value Per
Share, divided by (ii) the ATSI Equity Value Per Share.
10. Other Employee Benefit Plans. As of the ATSI Effective Time, AGI
hereby assumes all obligations of UAC under and undertakes sponsorship of any
and all employee benefit plans in effect as of said date or with respect to
which employee rights or accrued benefits are outstanding as of said date.
11. Termination. Subject to the terms and conditions of the IM Merger
Agreement, as amended, this ATSI Merger Agreement may be terminated and
abandoned whether before or after approval of this Agreement by the
stockholders of ATSI or AGI, or both, by mutual consent of the Boards of
Directors of both Constituent Corporations at any time prior to the ATSI
Effective Time.
12. Amendment. Subject to the terms and conditions of the IM Merger
Agreement, this ATSI Merger Agreement may be amended by the Boards of Directors
of both Constituent Corporations at any time prior to the ATSI Effective Time;
provided, however, that after approval of this Agreement by the stockholders of
ATSI and AGI, no amendment which, under Delaware law, would have required
approval of the ATSI stockholders or AGI stockholders, if made before approval,
may be made after approval without the approval of the ATSI stockholders or AGI
stockholders, respectively. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
13. Counterparts. This ATSI Merger Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this ATSI Merger Agreement, having first been duly
approved by resolution of the boards of directors of ATSI and AGI is hereby
executed on behalf of each said two corporations by their respective officers
thereunto duly authorized.
ARCUS TECHNOLOGY SERVICES,
INC.,
a Delaware corporation
By: --------------------------
Xxxxxx X. Xxxxxx
President and Chief
Executive Officer
By: --------------------------
Xxxxxx X. Xxxxx, III
Secretary
ARCUS GROUP, INC.,
a Delaware corporation
By: --------------------------
Xxxxxx X. Xxxxxx
President and Chief
Executive Officer
By: --------------------------
Xxxxxxx X. Xxxxxx
Secretary
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Schedule C
DESCRIPTION OF REORGANIZATION
Step 1: Acquiror Purchases Warrants to Purchase
Approximately 1,467,207 Shares of UAC Common
for Cash in the Amount of Approximately $29,842,000.
1. Acquiror Board authorizes purchase of warrants and adoption of Warrant
Purchase Agreement pursuant to Board Resolutions. (Satisfied as of September
26, 1997, which date is hereafter referred to as the "Execution Date".)
2. Acquiror and selling Warrant Holders enter into Warrant Purchase
Agreement. Pursuant to Section 4.05 of Warrant Agreements. UAC gives prior
written consent to transfer of warrants.
3. Selling Warrant Holders execute forms of Assignment of Warrant,
attached to Warrant Agreements. (Consent requirement satisfied as of Execution
Date)
4. All UAC shareholders who are parties to UAC Shareholders Agreement
waive rights of first refusal, inclusion, notice of transfer and right to
require sale of not less than all "Stock" under Article III of UAC Shareholders
Agreement and consent to sale of warrants to Acquiror. (Satisfied as of the
Execution Date.)
Step 2: UAC Repurchases Warrants to Purchase Approximately 32,793
Shares of UAC Common In Exchange for Connected Stock
1. UAC Board waives notice of special meeting. Satisfied as of the
Execution Date.
2. By unanimous vote of all UAC directors (in light of waiver of prior
notice of meeting and UAC Shareholders Agreement [sec]2.5) , UAC Board
takes following actions (each of which satisfied as of the Execution Date):
A. Determines that repurchase (i.e., distribution) is authorized under
Nevada law in that after giving effect to the distribution, UAC will be
able to pay its debts as they become due in the usual course of business.
(NRS 78.191).
B. Approves, subject to Series A Preferred Shareholder approval by vote of
00-0/0%, Xxxxxxx Xxxxxxxxxx.
C. Approves, subject to Series A Preferred Shareholder approval by vote of
66-2/3%, amendment to UAC articles of incorporation to provide that
prohibition under Article VI, Section 2(b) of UAC Articles of Incorporation
on payment of distributions or dividends or redemption of shares of any
other class or series of UAC stock until all accrued and unpaid dividends
on Series A Preferred shares have been fully paid and until all PIK shares
have been redeemed shall not apply to transactions in connection with
merger of AGI into UAC, including each aspect of this Schedule C.
D. Calls special meeting of UAC Series A Preferred Shareholders for purpose
of approving warrant repurchase and distribution pursuant to Repurchase
Agreement and voting on amendment.
E. Sets record date for Series A Preferred Shareholders entitled to notice
and vote.
3. UAC sends Notice of Special Meeting of Holders of Series A Preferred
shares which sets forth place, date, hour, and specific purpose of special
meeting.
4. All UAC shareholders who are parties to UAC Shareholders Agreement
waive, in writing, rights of first refusal, inclusion, notice of transfer and
right to require sale of not less than all "Stock" under Article III of UAC
Shareholders Agreement and consent to sale of warrants to UAC. (Satisfied as of
the Execution Date)
5. Warrant Holders receive, in writing, prior notice of warrant repurchase.
6. Series A Preferred Shareholders vote to approve Warrant repurchase and
amend UAC Articles of Incorporation, in accordance with commitment to vote
Series A Preferred shares pursuant to Stockholders Agreement among IM and
certain stockholders of UAC and AGI.
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7. Series A Preferred Shareholders approve warrant repurchase by 66-2/3%
vote.
8. Under Section 4.1(c) of Connected Stock Purchase Agreement, UAC notifies
Connected Corp. of proposed disposition of Connected Stock and provides
statement of surrounding circumstances. If reasonably requested by Connected
Corp., UAC must furnish Connected Corp. with legal opinion that disposition will
not require registration and appropriate action necessary for compliance with
all applicable securities laws has been taken.
9. Selling Warrant Holders agree to be bound by terms and conditions of
Connected Rights Agreement in order to be assignees of registration rights
thereunder, pursuant to Section 1.11 of Connected Rights Agreement. (Satisfied
as of the Execution Date)
10. UAC assigns to selling Warrant Holders all assignable rights under
Connected Co-Sale Agreement.
Step 2a: Xxxxxx Xxxxxxxx Transfers Single share of Arcus Data Security Ltd.
(U.K.) to Arcus Data Security, Inc. or IM's designee, whichever IM Directs.
UAC Assigns ATI Stock Purchase Agreement to Wholly Owned Subsidiary of UAC.
ATSI Assigns ATI Environmental Agreement to IM.
Step 3: UAC Merges into AGI. UAC Shareholders Receive AGI Stock at the
Exchange Ratio Set Forth in Schedule A to the Merger Agreement. UAC Option
Holders receive Similar Options in AGI on Tax Free Basis. Holders of UAC
Preferred Receive Similar Preferred Stock in AGI (after giving effect to
AGI Charter Amendment). UAC Warrant Holders Receive AGI Warrants. UAC
Shares Held by AGI are canceled.
Actions by AGI
1. AGI Board waives in writing notice of special meeting. (Satisfied as of
the Execution Date)
2. By unanimous vote of all AGI directors, AGI Board takes following
actions at special meeting: (Satisfied as of the Execution Date)
A. Adopts, subject to shareholder approval, an amendment to articles of
incorporation (i) to authorize a class of 50,000 shares of Preferred Stock,
(ii) to increase the number of shares of common stock from 11,661,290 to
100,000,000 and (iii) to remove restriction of Section 11.01 on transfer by
operation of merger that would otherwise preclude IM Merger. (DGCL 242)
B. Adopts, subject to shareholder approval, agreement and plan of merger of
UAC into AGI.
C. Reserves AGI stock for all holders of former UAC options and holders of
outstanding former UAC warrants.
D. Calls special meeting of AGI Shareholders for purpose of approving
amendments to articles of incorporation and agreement and plan of merger of
UAC into AGI.
E. Sets record date for Shareholders entitled to notice and vote.
3. AGI gives Notice of Special Meeting to AGI Shareholders at address on
AGI's records, which sets forth place, date and hour of special meeting and
specific purpose of meeting.
4. AGI gives AGI Shareholders notice of appraisal rights under DGCL 262,
together with a copy of Section 262, together with the notice of Special
Meeting.
5. AGI shareholders approve amendments to articles of incorporation and
merger of UAC into AGI by vote of holders of majority of shares.
6. AGI files certificate of amendment with Delaware Secretary of State.
7. AGI files certificate of merger with Delaware Secretary of State.
8. AGI assumes in writing the obligation to deliver to each Warrant Holder
such shares of stock, securities or other property (including cash) as the
Warrant Holders may be entitled to receive upon exercise of the warrants.
(Satisfied as of the Execution Date)
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9. Each UAC Warrant Holder receives, in writing, notice of the "Capital
Change."
10. AGI shareholders who do not vote for merger may have appraisal rights
under Delaware law.
Actions by UAC
1. UAC Board waives in writing notice of special meeting. (UAC Bylaws,
[sec]2.4.4) (Satisfied as of the Execution Date).
2. By unanimous vote of all UAC directors (see UAC Shareholders Agreement,
[sec]2.5), UAC Board takes following actions at special meeting (satisfied as of
the Execution Date) or as to the second clause of paragraph A, November 1997:
A. Adopts, subject to approval of holders of 66-2/3% of Series A Preferred
Shares and majority of Common Shares, amendment to articles of
incorporation to clarify that merger of UAC into controlling shareholder
shall not be treated as liquidation if the surviving corporation is
controlled by shareholders who, immediately prior to the merger,
controlled, directly or indirectly, all of the voting shares of UAC. (See
UAC Articles, IV.3(a), (b)), and to reduce the liquidation preference of
shares of UAC Series A Preferred Stock in connection with the Transactions
from $1,000 per share, plus all accrued but unpaid dividends thereon
(whether or not such dividends have been declared) to the Closing of the
Merger by an amount (not to exceed $50.00) determined by the Board of
Directors equal to the quotient of (i) the product of (A) $1,000 per share,
plus all accrued but unpaid dividends thereon (whether or not such
dividends have been declared) to the Closing of the Merger and (B) the
Expenses to be paid at or prior to the Closing by the Arcus Parties (such
amount is anticipated to be approximately $3.1 million) divided by (ii) the
Total Equity Consideration (before giving effect to the Expenses discussed
in clause (i)(B) above).
B. Adopts, subject to approval of holders of 66-2/3% of Series A Preferred
Shares and majority of Common Shares, agreement and plan of merger of UAC
into AGI.
C. Adopts resolution providing for assumption by AGI, of UAC options and
authorizes any amendments to option award agreements, providing that there
shall be no acceleration of options except as required or contemplated by
the merger transactions.
D. Calls special meeting of UAC Series A Preferred Stockholders and Common
Stockholders for purpose of approving amendment to articles and agreement
and plan of merger of UAC and AGI.
E. Sets record date for Series A Preferred Stockholders and Common
Stockholders entitled to notice and vote.
3. UAC gives Notice of Special Meeting to all holders of Series A Preferred
Stock and Common Stock, which sets forth place, date and hour of special meeting
and specific purpose of meeting.
4. UAC gives holders of Series A Preferred Shares at least ten days prior
notice of (i) effective date of UAC merger, and (ii) the time, if any, that is
to be fixed, as to when the holders of record of Common Stock or Series A
Preferred shall be entitled to exchange their shares. (UAC Articles IV.8).
5. All UAC shareholders who are parties to the UAC Shareholders Agreement
waive rights of first refusal, inclusion, notice of transfer and right to
require sale of not less than all "Stock" under Article III of UAC Shareholders
Agreement. (Satisfied as of Execution Date)
6. Actions to be taken at special meeting of Series A Preferred
Stockholders and Common Stockholders or by proxy:
A. Holders of Series A Preferred Shares approve amendment to articles and
merger by 66-2/3% vote.
B. Holders of Common Stock approve amendment to articles and agreement and
plan of merger of UAC into AGI by majority vote.
7. UAC files certificates of amendment of articles with Nevada Secretary of
State.
8. UAC files articles of merger with Nevada Secretary of State.
9. UAC Series A Preferred Shareholders and Common Stockholders who do not
approve merger (and who had right to vote thereon) may have dissenters rights
under Nevada law.
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10. Merger of UAC into AGI triggers right of Zurich Depository Corporation
(or its assignee) to exercise its warrant.
Step 4: ATSI Merges into AGI. ATSI Options are Converted into AGI Options.
Minority ATSI Shareholders Receive AGI Common Stock at the Exchange Ratio
Set Forth in Schedule B to the Merger Agreement. ATSI Shares Held by AGI
are Canceled.
Actions by AGI
1. AGI Board waives in writing notice of special meeting. (Satisfied as of
the Execution Date)
2. By unanimous vote of all AGI directors, AGI Board takes following
actions at special meeting (which actions are taken as of the Execution Date):
A. Adopts, subject to shareholder approval, agreement and plan of merger of
ATSI into AGI.
B. Reserves AGI stock for holders of former ATSI options.
C. Authorizes officers to require exercise of former ATSI options that are
vested and UAC options that are non-qualified.
D. Calls special meeting of holders of AGI Preferred and Common Shares for
purpose of approving agreement and plan of merger of ATSI into AGI.
E. Sets record date for Shareholders entitled to notice and vote.
3. AGI gives Notice of Special Meeting to AGI Common Stockholders at
address on AGI's records, which sets forth place, date and hour of special
meeting and specific purpose of meeting.
4. AGI gives all shareholders notice of appraisal rights under DGCL 262
together with a copy of Section 262.
5. AGI shareholders approve amendments to articles of incorporation and
merger of ATSI into AGI by vote of holders of majority of Common Shares.
6. AGI files certificate of merger with Delaware Secretary of State.
7. AGI holders of Common Stock who do not vote for merger may have
appraisal rights under Delaware law.
Actions by ATSI
1. ATSI Board waives in writing notice of special meeting. (Satisfied as of
Execution Date).
2. ATSI Board takes following actions:
A. Adopts, subject to shareholder approval, agreement and plan of merger of
ATSI into AGI.
B. Adopts resolution providing for assumption of ATSI options by AGI and
providing that there shall be no acceleration of vesting unless Board,
acting through the Committee or as provided in the IM Merger Agreement
provides otherwise.
C. Calls special meeting of ATSI shareholders for purpose of approving
agreement and plan of merger of ATSI into AGI.
D. Sets record date for shareholders entitled to notice and vote.
3. ATSI gives Notice of Special Meeting to ATSI Stockholders.
4. ATSI gives shareholders notice of appraisal rights under DGCL 262
together with a copy of Section 262 not less than 20 days before the meeting.
5. ATSI shareholders approve merger of ATSI into AGI by majority vote.
6. ATSI files certificate of merger with Delaware Secretary of State.
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7. ATSI shareholders who do not vote for merger may have appraisal rights
under Delaware law.
8. Holders of UAC Series A Preferred Shares approve, by 66-2/3% vote,
merger of ATSI into AGI.
Step 5: AGI may Distribute Damson Interest to Holders of AGI Preferred
Shares.
1. AGI Board waives notice of special meeting. (Satisfied as of the
Execution Date).
2. By unanimous vote of all AGI Directors, AGI Board takes following
actions (satisfied as of the Execution Date):
A. Determines distribution in partial redemption of shares of Preferred
Stock mis authorized under Delaware law in that following the distribution,
AGI will be able to pay its debts as they become due.
B. Sets record date for Preferred Shareholders entitled to distribution
not more than 60 days prior to the distribution.
3. AGI obtains waiver of right of first refusal and a consent to transfer
of more than 50% of Damson Interest from other Damson partners, including
General Partner.
4. AGI executes assignment of Damson Interest to each Preferred
Shareholder, or the Damson Interest is disposed of through other means.
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