EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of February
28, 2005, is entered into between SOURCE INTERLINK COMPANIES, INC., a Missouri
corporation ("SOURCE MISSOURI") and SOURCE INTERLINK COMPANIES, INC., a Delaware
corporation and a wholly owned subsidiary of Source Missouri ("SOURCE
DELAWARE").
RECITALS
WHEREAS, the board of directors of each of Source Missouri and Source
Delaware deems it advisable, upon the terms and subject to the conditions herein
stated, that Source Missouri be merged with and into Source Delaware, and that
Source Delaware be the surviving corporation (the "REINCORPORATION MERGER"); and
WHEREAS, Source Missouri will submit this Agreement to its shareholders for
approval.
NOW, THEREFORE, with the intent to be legally bound, the parties hereto
agree as follows:
ARTICLE I
REINCORPORATION MERGER; EFFECTIVE TIME
1.1 Reincorporation Merger. Upon the terms and subject to the conditions
set forth in this Agreement, at the Effective Time (as defined in Section 1.2),
Source Missouri shall be merged with and into Source Delaware whereupon the
separate existence of Source Missouri shall cease. Source Delaware shall be the
surviving corporation (sometimes hereinafter referred to as the "SURVIVING
CORPORATION") in the Reincorporation Merger and shall continue to be governed by
the laws of the State of Delaware. The Reincorporation Merger shall have the
effects specified in the General Corporation Law of the State of Delaware, as
amended (the "DGCL") and in the General and Business Corporation Law of the
State of Missouri, as amended (the "MGBCL") and the Surviving Corporation shall
succeed, without other transfer, to all of the assets and property (whether
real, personal or mixed), rights, privileges, franchises, immunities and powers
of Source Missouri, and shall assume and be subject to all of the duties,
liabilities, obligations and restrictions of every kind and description of
Source Missouri, including, without limitation, all outstanding indebtedness of
Source Missouri.
1.2 Effective Time. Provided that the condition set forth in Section 5.1
has been fulfilled or waived in accordance with this Agreement and that this
Agreement has not been terminated or abandoned pursuant to Section 6.1, on the
date of the closing of the Reincorporation Merger, Source Missouri and Source
Delaware shall cause Summary Articles of Merger to be executed and filed with
the Secretary of State of the State of Missouri (the "MISSOURI ARTICLES OF
MERGER") and a Certificate of Merger to be executed and filed with the Secretary
of State of the State of Delaware (the "DELAWARE CERTIFICATE OF MERGER"). The
Reincorporation Merger shall become effective upon the date and time specified
in the Missouri Articles of Merger and the Delaware Certificate of Merger (the
"EFFECTIVE TIME").
ARTICLE II
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
2.1 Certificate of Incorporation. The certificate of incorporation of
Source Delaware in effect at the Effective Time shall be the certificate of
incorporation of the Surviving Corporation, until amended in accordance with the
provisions provided therein or applicable law.
2.2 Bylaws. The bylaws of Source Delaware in effect at the Effective Time
shall be the bylaws of the Surviving Corporation, until amended in accordance
with the provisions provided therein or applicable law.
ARTICLE III
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION
3.1 Officers. The officers of Source Delaware at the Effective Time shall,
from and after the Effective Time, be the officers of the Surviving Corporation,
until their successors have been duly elected or appointed and qualified, or
until their earlier death, resignation or removal.
3.2 Directors. The directors and the members of the various committees of
the board of directors of Source Delaware at the Effective Time shall, from and
after the Effective Time, be the directors and members of such committees of the
Surviving Corporation, until their successors have been duly elected or
appointed and qualified, or until their earlier death, resignation or removal.
ARTICLE IV
EFFECT OF MERGER ON CAPITAL STOCK
4.1 Effect of Merger on Capital Stock. At the Effective Time, as a result
of the Reincorporation Merger and without any action on the part of Source
Missouri, Source Delaware or the shareholders of Source Missouri:
(a) Each share of common stock, par value $0.01 per share, of Source
Missouri ("MISSOURI COMMON STOCK") issued and outstanding immediately prior to
the Effective Time shall be converted (without the surrender of stock
certificates or any other action) into one fully paid and non-assessable share
of common stock, par value $0.01 per share, of Source Delaware ("DELAWARE COMMON
STOCK"), with the same rights, powers and privileges as the shares so converted
and all shares of Missouri Common Stock shall be cancelled and retired and shall
cease to exist.
(b) Each option, warrant, purchase right, unit or other security of
Source Missouri issued and outstanding immediately prior to the Effective Time
shall be converted into and shall be an identical security of Source Delaware,
convertible into the right to acquire the same number of shares of Delaware
Common Stock as the number of shares of Missouri
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Common Stock that were acquirable pursuant to such option, warrant, purchase
right, unit or other security. The same number of shares of Delaware Common
Stock shall be reserved for purposes of the exercise of such options, warrants,
purchase rights, units or other securities as is equal to the number of shares
of the Missouri Common Stock so reserved as of the Effective Time.
(c) Each share of Delaware Common Stock owned by Source Missouri shall
no longer be outstanding and shall be cancelled and retired and shall cease to
exist.
4.2 Certificates. At and after the Effective Time, all of the outstanding
certificates which immediately prior thereto represented shares of Missouri
Common Stock, or options, warrants, purchase rights, units or other securities
of Source Missouri, shall be deemed for all purposes to evidence ownership of
and to represent shares of Delaware Common Stock, or options, warrants, purchase
rights, units or other securities of Source Delaware, as the case may be, into
which the shares of Missouri Common Stock, or options, warrants, purchase
rights, units or other securities of Source Missouri, represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of the Surviving Corporation or its transfer agent. The
registered owner of any such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to the Surviving Corporation or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to, and to receive any
dividends and other distributions upon, the shares of Delaware Common Stock, or
options, warrants, purchase rights, units or other securities of Source
Delaware, as the case may be, evidenced by such outstanding certificate, as
above provided.
ARTICLE V
CONDITION
5.1 Condition to Each Party's Obligation to Effect the Reincorporation
Merger. The respective obligation of each party hereto to effect the
Reincorporation Merger is subject to receipt prior to the Effective Time of the
requisite approval of this Agreement and the transactions contemplated hereby by
the holders of two-thirds (2/3) of issued and outstanding Missouri Common Stock
pursuant to the MGBCL and the articles of incorporation and bylaws of Source
Missouri.
ARTICLE VI
TERMINATION
6.1 Termination. This Agreement may be terminated, and the Reincorporation
Merger may be abandoned by the board of directors of Source Missouri, at any
time prior to the Effective Time, whether before or after approval of this
Agreement by the shareholders of Source Missouri, if the board of directors of
Source Missouri determines for any reason, in its sole judgment and discretion,
that the consummation of the Reincorporation Merger would be inadvisable or not
in the best interests of Source Missouri and its shareholders. In the event of
the termination and abandonment of this Agreement, this Agreement shall become
null and void
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and have no effect, without any liability on the part of either Source Missouri
or Source Delaware, or any of their respective shareholders, directors or
officers.
ARTICLE VII
MISCELLANEOUS AND GENERAL
7.1 Modification or Amendment. Subject to the provisions of applicable
law, at any time prior to the Effective Time, the parties hereto may modify or
amend this Agreement; provided, however, that an amendment made subsequent to
the approval of this Agreement by the holders of Missouri Common Stock shall not
(i) alter or change the amount or kind of shares and/or rights to be received in
exchange for or on conversion of all or any of the shares or any class or series
thereof of such corporation, (ii) alter or change any provision of the
certificate of incorporation of the Surviving Corporation to be effected by the
Reincorporation Merger, or (iii) alter or change any of the terms or conditions
of this Agreement it such alteration or change would adversely affect the
holders of any class or series of capital stock of any of the parties hereto.
7.2 Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
7.3 Governing Law. This Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with
the laws of the State of Delaware without regard to the conflict of law
principles thereof.
7.4 Entire Agreement. This Agreement constitutes the entire agreement, and
supercedes all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof.
7.5 No Third Party Beneficiaries. This Agreement is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
7.6 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is determined by any court or other authority of competent
jurisdiction to be invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
7.7 Headings. The headings therein are for convenience of reference only,
do not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first written
above.
SOURCE INTERLINK COMPANIES, INC.,
a Missouri corporation
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Executive Vice
President
SOURCE INTERLINK COMPANIES, INC.
a Delaware corporation
By: /s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Secretary
