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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of July 20, 1999,
among Xxxxx Advertising Company, a Delaware corporation (the "Company"), Xxxxx
New Holding Co., a Delaware corporation ("New Holding Co.") and a direct,
wholly-owned subsidiary of the Company, and Xxxxx Holdings Merge Co., a
Delaware corporation ("Mergeco") and a direct, wholly-owned subsidiary of New
Holding Co.
RECITALS
WHEREAS, as of the close of business on July 16, 1999, the authorized
capital stock of the Company consisted of (i)125,000,000 shares of Class A
common stock, par value $0.001 per share ("Company Class A Common Stock"), of
which 43,563,874 shares were issued and outstanding, 4,000,000 shares were
reserved for issuance under the Company's 1996 Equity Incentive Plan and no
shares were held in treasury, (ii) 37,500,000 shares of Class B common stock,
par value $0.001 per share ("Company Class B Common Stock"), of which
17,699,997 shares were issued and outstanding, (iii) 10,000 shares of Class A
preferred stock, par value $638 per share ("Company Class A Preferred Stock"),
of which none are outstanding, and (iv) 1,000,000 shares of Preferred Stock,
par value $0.001 per share, of which 5,719.49 shares have been designated
Series AA Preferred Stock, ("Company Series AA Preferred Stock"), all of which
were issued and outstanding.
WHEREAS, as of the date hereof, the authorized capital stock of New
Holding Co. consists of (i) 125,000,000 shares of Class A common stock, par
value $0.001 per share ("New Holding Co. Class A Common Stock"), of which 1,000
shares are issued and outstanding and no shares are held in treasury, (ii)
37,500,000 shares of Class B common stock, par value $0.001 per share, ("New
Holding Co. Class B Common Stock"), of which none are outstanding, (iii) 10,000
shares of Class A preferred stock, ("New Holding Co. Class A Preferred Stock"),
of which none are outstanding, and (iv) 1,000,000 shares of Preferred Stock,
par value $0.001 per share, of which 5,720 shares have been designated Series
AA Preferred Stock, ("New Holding Co. Series AA Preferred Stock"), none of
which are outstanding.
WHEREAS, the designations, rights, powers and preferences, and the
qualifications, limitations and restrictions thereof, of the New Holding Co.
Class A Common Stock, New Holding Co. Class B Common Stock and New Holding Co.
Series AA Preferred Stock are the same as those of the Company Class A Common
Stock, Company Class B Common Stock and Company Series AA Preferred Stock,
respectively.
WHEREAS, the Certificate of Incorporation and the By-laws of New
Holding Co. immediately after the Effective Time (as hereinafter defined) will
contain provisions identical to the Amended and Restated Certificate of
Incorporation, as amended, and By-laws of the Company 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")).
WHEREAS, the directors of the Company immediately prior to the Merger
(as hereinafter defined) will be the directors of New Holding Co. as of the
Effective Time.
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WHEREAS, New Holding Co. and Mergeco are newly formed corporations
organized for the purpose of participating in the transactions herein
contemplated, and Mergeco will not conduct any business activities or other
operations of any kind, other than the issuance of its stock to New Holdings
Co., prior to the Effective Time.
WHEREAS, the Company desires to create a new holding company structure
by merging Mergeco with and into the Company with the Company being the
surviving corporation, and converting, in accordance with the terms of this
Agreement, (i) each outstanding share of Company Class A Common Stock into one
share of New Holding Co. Class A Common Stock, (ii) each outstanding share of
Company Class B Common Stock into one share of New Holding Co. Class B Common
Stock, and (iii) each outstanding share of Company Series AA Preferred Stock
into one share of New Holding Co. Series AA Preferred Stock.
WHEREAS, the Boards of Directors of New Holding Co., Mergeco and the
Company have approved this Agreement and the merger of Mergeco with and into
the Company upon the terms and subject to the conditions set forth in this
Agreement (the "Merger").
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, and intending to be legally bound
hereby, the Company, New Holding Co. and Mergeco hereby agree as follows:
ARTICLE 1
THE MERGER
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, Mergeco shall,
at the Effective Time, be merged with and into the Company, the separate
corporate existence of Mergeco shall cease and the Company shall continue as
the surviving corporation. The Company as the surviving corporation after the
Merger is hereinafter sometimes referred to as the "Surviving Corporation." At
the Effective Time, the effect of the Merger shall be as provided in Section
259 of the DGCL.
1.2 Effective Time. The Merger shall become effective from and after
4:00 p.m. on July 20, 1999 (such time being referred to herein as the
"Effective Time").
1.3 Amended and Restated Certificate of Incorporation of the Surviving
Corporation. From and after the Effective Time, the Amended and Restated
Certificate of Incorporation of the Company, as in effect immediately prior to
the Effective Time, shall be the certificate of incorporation of the Surviving
Corporation until thereafter amended as provided by law; provided, however,
that, from and after the Effective Time:
(a) Article FIRST thereof shall be amended so as to read in its
entirety as follows:
"The name of the Corporation is Xxxxx Media Corp."
(b) Article FOURTH thereof shall be amended so as to read in its
entirety as follows:
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"FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is three thousand (3,000)
shares and shall consist of three thousand (3,000) shares of Common
Stock, par value $.01 per share."
(c) A new Article TENTH shall be added thereto which shall be and
read in its entirety as follows:
"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 the Corporation shall, by virtue of this reference to
Section 251(g) of the General Corporation Law of the State of
Delaware, require, in addition, the approval of the stockholders of
Xxxxx Advertising Company, 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 the certificate of
incorporation of this Corporation."
1.4 By-laws. From and after the Effective Time, the By-laws of the
Company, as in effect immediately prior to the Effective Time, shall be the
By-laws of the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
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 Certificate of
Incorporation and the By-laws of the Surviving Corporation or as otherwise
provided by law.
1.6 Officers. The officers of the Company immediately prior to the
Effective Time shall be the initial officers 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 Certificate of
Incorporation and the By-laws of the Surviving Corporation or as otherwise
provided by law.
1.7 Additional Actions. Subject to the terms of this Agreement, the
parties hereto shall take all such reasonable and lawful action as may be
necessary or appropriate in order to effectuate the Merger. If, at any time
after the Effective Time, the Surviving Corporation shall consider or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation its right, title or interest
in, to or under any of the rights, properties or assets of either of Mergeco or
the Company acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger or otherwise to carry out this Agreement,
the officers of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of Mergeco and the Company, all such
deeds, bills of sale, assignments and assurances and to take and do, in the
name and on behalf of each of Mergeco and the Company or otherwise, all such
other actions and things as may be necessary or desirable to vest, perfect or
confirm any and all right, title and interest in, to and under such rights,
properties or assets in the Surviving Corporation or otherwise to carry out
this Agreement.
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1.8 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of New Holding Co., Mergeco, the
Company or the holder of any of the following securities:
(a) Each issued and outstanding share of New Holding Co. Class A
Common Stock owned of record by the Company immediately prior to the Effective
Time shall be cancelled and retired without payment of any consideration
therefor and shall cease to exist and no Company Class A Common Stock or other
consideration shall be delivered in exchange for any such New Holding Co. Class
A Common Stock.
(b) Each share or fraction of a share of Company Class A Common
Stock issued and outstanding immediately prior to the Effective Time shall be
converted into one, or an equal fraction of one, duly issued, fully paid and
non-assessable share of New Holding Co. Class A Common Stock.
(c) Each share or fraction of a share of Company Class B Common
Stock issued and outstanding immediately prior to the Effective Time shall be
converted into one, or an equal fraction of one, duly issued, fully paid and
non-assessable share of New Holding Co. Class B Common Stock.
(d) Each share or fraction of a share of Company Series AA
Preferred Stock issued and outstanding immediately prior to the Effective Time
shall be converted into one or an equal fraction of one, duly issued, fully
paid and non-assessable share of New Holding Co. Series AA Preferred Stock.
(e) Each share of common stock, par value $0.01 per share, of
Mergeco 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.
(f) From and after the Effective Time, holders of certificates
formerly evidencing Company Class A Common Stock, Company Class B Common Stock
and Company Series AA 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 1.9 herein.
1.9 No Surrender of Certificates; Stock Transfer Books. At the
Effective Time, the designations, rights, powers and preferences, and
qualifications, limitations and restrictions thereof, of the capital stock of
New Holding Co., will, in each case, be identical with those of the Company
immediately prior to the Effective Time. Accordingly, until thereafter
surrendered for transfer or exchange in the ordinary course, each outstanding
certificate that, immediately prior to the Effective Time, evidenced Company
Class A Common Stock, Company Class B Common Stock and Company Series AA
Preferred Stock shall, from the Effective Time, be deemed and treated for all
corporate purposes to evidence the ownership of the same number of shares of
New Holding Co. Class A Common Stock, New Holding Co. Class B Common Stock or
New Holding Co. Series AA Preferred Stock, respectively.
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1.10 Certificate of Incorporation of New Holding Co. The Company
hereby consents to the use of the name "Xxxxx Advertising Company" by New
Holding Co. from and after the Effective Time. New Holding Co. shall, at the
Effective Time or immediately thereafter, file an Amendment to the Certificate
of Incorporation (the "Amendment") with the Secretary of State of the State of
Delaware changing the corporate name of New Holding Co. to "Xxxxx Advertising
Company," which Amendment was approved by the Company as the sole stockholder
of New Holding Co. prior to the Effective Time.
Tax-Free Reorganization. The Merger is intended to constitute a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"). The parties hereto hereby adopt this
Agreement as a plan of reorganization within the meaning of Treas. Reg. sections
1.368-2 (g) and 1.368-3.
ARTICLE 2
ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER
2.1 Assumption of Plan. New Holding Co. and the Company hereby agree
that they will, at the Effective Time, execute, acknowledge and deliver an
assumption agreement pursuant to which New Holding Co. will, from and after the
Effective Time, assume and agree to perform all obligations of the Company
pursuant to the Company's 1996 Equity Incentive Plan (the "Plan"). The
assumption by New Holding Co. of the obligations of the Company with respect to
options issued under the Plan which are "incentive stock options" as defined in
Section 422 of the Code shall be and is intended to be effected in a manner
which is consistent with Section 424(a) of the Code.
2.2 Reservation of Shares. On or prior to the Effective Time, New
Holding Co. will reserve sufficient shares of New Holding Co. Class A Common
Stock to provide for the issuance of New Holding Co. Class A Common Stock upon
exercise of options outstanding under the Plan.
ARTICLE 3
CONDITIONS OF MERGER
3.1 Conditions Precedent. The obligations of the parties to this
Agreement to consummate the Merger and the transactions contemplated by this
Agreement shall be subject to fulfillment or waiver by the parties hereto at or
prior to the Effective Time of the following condition:
(a) No order, statute, rule, regulation, executive order,
injunction, stay, decree, judgment or restraining order that is in effect shall
have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits or
makes illegal the consummation of the Merger or the transactions contemplated
hereby.
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ARTICLE 4
COVENANTS
4.1 Election of Directors. Prior to the Effective Time, the Company,
in its capacity as the sole stockholder of New Holding Co., will, if necessary
to comply with Section 251(g) of the DGCL, remove each of the then directors of
New Holding Co., cause the board of directors of New Holding Co. to effect such
amendments to the bylaws of New Holding Co. as are necessary to increase the
number of directors of New Holding Co. to equal the number of directors of the
Company immediately prior to the Effective Time, and elect each person who is
then a member of the board of directors of the Company as a director of New
Holding Co., each of whom shall serve until the next annual meeting of
stockholders of New Holding Co. and until his successor shall have been elected
and qualified.
4.2 The Plan. The Company and New Holding Co. will take or cause to be
taken all actions necessary or desirable in order for New Holding Co. to assume
the Plan and to assume (or become a participating employer in) each other
existing employee benefit plan and agreement of the Company, with or without
amendments, or to adopt comparable plans, all to the extent deemed appropriate
by the Company and New Holding Co. and permitted under applicable law.
ARTICLE 5
TERMINATION AND AMENDMENT
5.1 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, the Board of Directors of New
Holding Co. or the Board of Directors of Mergeco if such Board of Directors
should determine 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, New
Holding Co. or Mergeco nor their respective stockholders, directors or officers
shall have any liability with respect to such termination and abandonment.
5.2 Amendment. This Agreement may be supplemented, amended or modified
by the mutual consent of the Boards of Directors of the parties to this
Agreement to the fullest extent permitted by law.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Governing Law. This Agreement shall be governed by and construed
and enforced under the laws of the State of Delaware.
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6.2 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.
6.3 Entire Agreement. This Agreement, including the documents and
instruments referred to herein, constitutes the entire agreement and supersedes
all other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, New Holding Co., Mergeco and the Company have
caused this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
XXXXX ADVERTISING COMPANY
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President and Chief Executive Officer
XXXXX NEW HOLDING CO.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President and Chief Executive Officer
LAMAR HOLDINGS MERGE CO.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President and Chief Executive Officer
