Exhibit 2.4
AGREEMENT AND PLAN OF RECAPITALIZATION
This Agreement and Plan of Recapitalization (the "Agreement") is made
and entered into as of July 26, 1996 between Universal Outdoor Holdings, Inc., a
Delaware corporation (the "Company"), Xxxxx Investment Associates V, L.P., a
Delaware limited partnership ("KIA V"), Xxxxx Equity Partners V, L.P., a
Delaware limited partnership ("KEP V") and certain stockholders of the Company
listed on the signature pages hereto (each, an "Individual Stockholder," and
collectively, the "Stockholders").
WHEREAS, pursuant to a Stock Purchase Agreement (the "Stock Purchase
Agreement"), dated as of April 5, 1996, among the Company, KIA V, and KEP V, the
Company, among other things, issued and sold certain shares of Class B Common
Stock, par value $.01 per share, of the Company (the "Class B Common Stock") and
Class C Common Stock, par value $.01 per share, of the Company (the "Class C
Common Stock") to KIA V and KEP V in the amounts set forth in Schedule 1, in
each case having the terms set forth in the Second Amended and Restated
Certificate of Incorporation of the Company (the "Certificate"); and
WHEREAS, pursuant to certain Stock Subscription Agreements executed by
the Company and each Individual Stockholder, each dated as of April 5, 1996, the
Company issued and sold shares of Class C Common Stock to such Individual
Stockholder in the amounts set forth in Schedule 1; and
WHEREAS, the Company is presently contemplating an initial public
offering of certain of its equity securities (the "Offering") and, in connection
therewith, intends to amend the Certificate to provide for, among other things,
the recapitalization of the capital structure of the Company such that the total
number of shares of capital stock which the Company shall have authority to
issue shall be 75,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), and 10,000,000 shares of Preferred Stock, par value $.01 per
share as reflected in the Third Amended and Restated Certificate of
Incorporation of the Company (the "Amended Certificate"), a copy of which is
attached hereto as Exhibit A; and
WHEREAS, in connection with the Offering, the Company, KIA V, KEP V
and each Individual Stockholder hereby agree that the Company shall reclassify
each share of Class B Common Stock and Class C Common Stock into one share of
Common Stock (all such shares of Common Stock to be so reclassified being
collectively referred to herein as the "Shares") and shall immediately
thereafter authorize a 16 for 1 split of each share of Common Stock, and the
Company, KIA V, KEP V and certain other parties who are signatories thereto
further agree to enter into a Registration Rights Agreement (the "Registration
Rights Agreement") providing for certain registration rights in connection with
the Shares.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties herein contained, the Company, KIA V, KEP V and
each Individual Stockholder hereby agree as follows:
1. THE RECAPITALIZATION.
(a) AMENDED CERTIFICATE. Pursuant to Section 242 of the General
Corporation Law of the State of Delaware (the "DGCL"), on the Closing Date (as
defined herein), the Company will file the Amended Certificate with the
Secretary of State of the State of Delaware. Except as otherwise provided
herein, the transactions contemplated by this Agreement shall become effective
at such time as the Amended Certificate is duly filed with the Secretary of
State of the State of Delaware or at such later time as may be mutually agreed
upon by the Company and KIA V (the "Effective Time").
(b) RECLASSIFICATION OF SHARES. At the Effective Time, each
share of Class B Common Stock and each share of Class C Common Stock outstanding
immediately prior to the Effective Time shall, without any further action on the
part of the holder thereof, be reclassified as one share of Common Stock having
the powers and privileges described in the Amended Certificate.
(c) BYLAWS. As of the Effective Time, the bylaws of the Company
in effect immediately prior to the Effective Time shall be amended and restated
in accordance with applicable law and the Amended Certificate, in form and
substance as set forth in Exhibit B attached hereto.
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(d) OTHER ACTIONS. Prior to the Effective Time, the Board of
Directors of the Company (the "Board") shall take any action necessary to
effectuate the transactions contemplated by this Agreement including without
limitation authorizing the amendment and restatement of the Certificate and the
existing bylaws of the Company and the reclassification of Class B Common Stock
and Class C Common Stock into Common Stock as set forth in Section 1(b) hereof.
2. CLOSING.
(a) TIME AND PLACE. The closing of the transactions contemplated by
this Agreement (the "Closing") shall, subject to the satisfaction or, if
permissible, waiver of all of the conditions set forth in Section 5 hereof, be
on the same date (the "Closing Date") and at the same place of the closing of
and the consummation of the transactions contemplated by the Offering, occurring
substantially concurrent with such closing. The Closing shall be deemed to have
occurred immediately prior to the closing of the Offering.
(b) DELIVERY BY THE COMPANY. At the Closing, the Company will
deliver stock certificates representing the Shares to be reclassified pursuant
to Section 1 hereof registered in the name of the appropriate entity set forth
on Schedule 1.
(c) DELIVERIES BY KIA V, KEP V AND THE STOCKHOLDERS. At the Closing,
each of KIA V, KEP V and each Individual Stockholder will deliver stock
certificates representing the shares of Class B Common Stock and Class C Common
Stock held by such parties as set forth on Schedule 1.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of KIA V, KEP V and each Individual Stockholder
as of the date hereof, and as of the Closing Date, as follows:
(a) CORPORATE FORM. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own or lease and operate
its properties and to carry on its business as now conducted.
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(b) CORPORATE AUTHORITY. The Company has all requisite power and
authority to enter into and perform all of its obligations under this Agreement
and to carry out the transactions contemplated hereby.
(c) ACTIONS AUTHORIZED. The Company has taken all corporate actions
necessary to authorize it to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Company and constitutes
a legal, valid and binding obligation of the Company enforceable in accordance
with its terms. The Board has unanimously approved this Agreement and the
transactions contemplated hereby including without limitation the amendment and
restatement of the Certificate as contemplated by the Amended Certificate and
the amendment and restatement of the bylaws of the Company as contemplated by
Section 1(c) hereof.
(d) REQUIRED FILINGS AND APPROVALS. The execution and delivery of
this Agreement by the Company and the consummation of the transactions
contemplated hereby by the Company do not require a consent, approval or
authorization of, or filing, registration or qualification with, any
governmental authority on the part of the Company other than the filing of the
Amended Certificate with the Secretary of State of the State of Delaware. The
only approvals of shareholders of the Company required in connection with the
transactions contemplated hereby are the approvals set forth in Section 6(b)
hereof and the approval of (i) holders of a majority of the outstanding shares
of the existing common stock, par value $.01 per share, of the Company (the
"Existing Common Stock"), voting separately as a class, to the amendment and
restatement of the Certificate as contemplated by the Amended Certificate, (ii)
holders more than 80% of the outstanding shares of Existing Common Stock and
Class B Common Stock, voting together as a single class, to the amendment and
restatement of the Certificate as contemplated by the Amended Certificate and to
the amendment and restatement of the bylaws of the Company as contemplated by
Section 1(c) hereof, and (iii) holders of a majority of the outstanding shares
of Existing Common Stock and Class B Common Stock, voting togeth-
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er as a single class, to the amendments to the Company's 1996 Warrant Plan,
adopted by the Board on April 5, 1996, described in the Form S-1 Registration
Statement filed by the Company with the Securities and Exchange Commission on
June 6, 1996 in connection therewith (the "Form S-1").
(e) NO CONFLICTS. None of the execution, delivery or performance of
this Agreement by the Company will conflict with the Certificate, the Amended
Certificate or the bylaws of the Company as in effect on the date hereof and as
in effect (following amendment thereto) as of the Closing, or result in any
material breach of, or constitute a material default under any material
contract, agreement or instrument to which the Company is a party or by which it
or any of its assets is bound.
4. REPRESENTATIONS AND WARRANTIES OF KIA V, KEP V AND THE
STOCKHOLDERS. Each of KIA V, KEP V and each Individual Stockholder (solely as
to itself, himself or herself) represents and warrants to the Company as of the
date hereof, and as of the Closing Date, as follows:
(a) FORM. KIA V is a limited partnership duly organized under the
laws of the State of Delaware and KEP V is a limited partnership duly organized
under the laws of the State of Delaware. Each of KIA V and KEP V has full
authority to conduct its business as it is now being conducted.
(b) AUTHORITY. Each of KIA V and KEP V has full authority to enter
into and perform all of its respective obligations under this Agreement and to
carry out the transactions contemplated hereby.
(c) ACTIONS AUTHORIZED. Each of KIA V and KEP V has taken all
actions necessary to authorize it to enter into and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by each of KIA
V, KEP V and each Individual Stockholder and constitutes a legal, valid and
binding obligation of such party enforceable in accordance with its terms.
(d) OWNERSHIP OF SHARES. Each of KIA V and KEP V is the lawful owner
of and has full authority to own the shares of Class B Common Stock and Class C
Common
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Stock owned by it as set forth on Schedule 1 and, as of the Closing Date, has
good title thereto, free and clear of all liens, claims, restrictions,
limitations, security interests and encumbrances of any kind. Each Individual
Shareholder is the lawful owner of and has full authority to own the shares of
Class C Common Stock owned by him or her as set forth on Schedule 1 and, as of
the Closing Date, has good title thereto, free and clear of all liens, claims,
restrictions, limitations, security interests and encumbrances of any kind.
5. CONDITIONS TO THE OBLIGATIONS OF KIA V, KEP V AND THE
STOCKHOLDERS. The obligations of KIA V, KEP V and the Stockholders to
consummate the transactions contemplated hereby shall be subject to the
fulfillment or written waiver by KIA V at or prior to the Closing of each of the
following conditions:
(a) REGISTRATION RIGHTS AGREEMENT. The Company shall have executed
and delivered to KIA V and KEP V the Registration Rights Agreement.
(b) OFFERING. The Offering shall, substantially concurrently with
the transactions contemplated hereby, have been consummated in accordance with
the terms and provisions set forth in the Form S-1.
(c) SHAREHOLDER APPROVAL. The Company shall have obtained the
approval of shareholders of the Company as set forth in Section 3(d) hereof.
6. ADDITIONAL AGREEMENTS.
(a) NOMINATING RIGHTS. From and after the date hereof, (i) for as
long as KIA V, KEP V and the Individual Stockholders shall beneficially own, in
the aggregate, more than 10% of the outstanding shares of Common Stock, in
connection with each meeting of shareholders of the Company at which the Company
is to elect Class I Directors to its Board or with any action taken by written
consent of shareholders of the Company pursuant to which the Company is to elect
Class I Directors to its Board, the Company hereby grants, and shall take any
corporate and other action as is necessary to grant, KIA V the right to nominate
one person for a seat as a Class I Director on the Board to be voted upon by the
shareholders of the Company (the "Class I Nominee"), and (ii)
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for as long as KIA V, KEP V and the Individual Stockholders shall beneficially
own, in the aggregate, more than 5% of the outstanding shares of Common Stock,
in connection with each meeting of shareholders of the Company at which the
Company is to elect Class III Directors to its Board or with any action taken by
written consent of shareholders of the Company pursuant to which the Company is
to elect Class III Directors to its Board, the Company hereby grants, and shall
take any corporate and other action as is necessary to grant, KIA V the right to
nominate one person for a seat as a Class III Director on the Board to be voted
upon by the shareholders of the Company (collectively with the Class I Nominee,
the "Nominees"). In order to effect the foregoing, prior to any meeting of
shareholders of the Company at which directors shall be elected and prior to any
solicitation of shareholder consent to the election of directors to the Board
(and prior to the mailing of any proxy materials in connection therewith), the
Company shall notify KIA V of such meeting or such solicitation and the intended
date of approval of nominees by the Board and the mailing of proxy materials in
connection therewith. The notice to KIA V shall be adequate such that KIA V may
properly nominate such Nominees in accordance with the applicable terms of the
Certificate (and after the Closing, the Amended Certificate) and bylaws of the
Company as in effect at the particular time. The Company shall include such
Nominees in any such proxy materials and shall recommend that the shareholders
of the Company vote in favor of such Nominees as directors. The Company shall
not change, alter, modify or withdraw any such recommendation without the prior
written consent of KIA V. The Company further agrees and shall take any
corporate and other action as is necessary so that one of such Nominees, if
elected as a director of the Company, shall be appointed to be a member of the
Compensation Committee of the Board.
(b) CLASS B COMMON STOCK AND CLASS C COMMON STOCK SHAREHOLDER
APPROVAL. In accordance with the provisions of paragraph FOURTH, sub-paragraph
F of the Certificate with respect to obtaining the approval of holders of a
majority of outstanding shares of each class of capital stock of the Company to
certain amendments to the Certificate (including the approval of any class of
shareholders affected by any such amendment) and, in lieu of a meeting of
holders of such shares as authorized
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pursuant to Section 228 of the DGCL, (i) KIA V and KEP V, as holders of all of
the outstanding shares of Class B Common Stock, hereby consent as the class of
Class B Common Stock holders to the amendment and restatement of the Certificate
as contemplated by the Amended Certificate, and (ii) KIA V, KEP V and each
Individual Stockholder, as holders of all of the outstanding shares of Class C
Common Stock, hereby consent as the class of Class C Common Stock holders to the
amendment and restatement of the Certificate as contemplated by the Amended
Certificate.
(c) SHAREHOLDER APPROVAL. Prior to the Closing Date, the Company
hereby agrees to seek, and each of the parties hereto hereby agree to use their
best efforts to obtain, the approval of shareholders of the Company set forth in
Section 4(d).
(d) UNIVERSAL CERTIFICATE OF INCORPORATION AND BYLAWS. The Company
shall take such action as is necessary to amend and restate the Second Amended
Certificate of Incorporation and bylaws of Universal to reflect the transactions
contemplated by this Agreement including without limitation (i) the increase in
authorized shares of Common Stock and Preferred Stock as set forth in the
Amended Certificate, (ii) the reclassification of Class B Common Stock and Class
C Common Stock into Common Stock, and (iii) the amendment and restatement of the
Certificate. The Company shall also take such action as is necessary to amend
and restate the Second Amended Certificate of Incorporation and bylaws of
Universal and any further action as is necessary as the sole shareholder of
Universal such that the directors on the board of directors of Universal shall
at all times be identical to the directors on the Board, and such provisions
shall remain in effect for as long as KIA V, KEP V and the Individual
Stockholders shall beneficially own, in the aggregate more than 10% of the
outstanding shares of Common Stock,.
(e) STOCK SPLIT. Substantially concurrently with the Effective Time,
the Company shall take such action as is necessary to effectuate a 16 for 1
split of each share of the Common Stock as set forth in the Form S-1, such
action to be deemed to have occurred immediately following the Effective Time.
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(f) FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
If at any time after the Closing any further action is necessary or desirable to
carry out the purposes of this Agreement, the parties hereto shall, take or
cause to be taken all such necessary action, including, without limitation, the
execution and delivery of such further instruments and documents as may be
reasonably requested by any party for such purposes or otherwise to consummate
and make effective the transactions contemplated hereby.
7. MISCELLANEOUS.
(a) BINDING EFFECT; BENEFITS. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended or shall be construed to give any person other than the parties to this
Agreement and their respective successors or permitted assigns any legal or
equitable right, remedy or claim under or in respect of any agreement or any
provision contained herein.
(b) WAIVER. Any party hereto may by written notice to each other
party (i) extend the time for the performance of any of the obligations or other
actions of the other parties under this Agreement; (ii) waive compliance with
any of the conditions or covenants of the other parties contained in this
Agreement; and (iii) waive or modify performance of any of the obligations of
the other parties under this Agreement. Except as provided in the preceding
sentence, no action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained herein. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any preceding or succeeding breach
and no failure by either party to exercise any right or privi-
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lege hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise the
same at any subsequent time or times hereunder.
(c) AMENDMENTS. Neither this Agreement nor any term or provision
hereof may be amended, modified, waived or supplemented orally, but only by a
written instrument executed by the parties hereto.
(d) ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by any party to this Agreement without the prior written consent of
the other parties to this Agreement.
(e) APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, regardless of the
law that might be applied under principles of conflicts of law.
(f) SEVERABILITY. If any provision of this Agreement, or the
application of such provisions to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
(g) TERMINATION. This Agreement may be terminated at any time prior
to the Closing:
(i) by mutual consent in writing of the Company and KIA V; or
(ii) by either the Company or KIA V if the Offering has not been
consummated by September 30, 1996.
In the event that this Agreement shall be terminated pursuant to this Section
7(g), all further obligations of the parties under this Agreement shall
terminate without further liability of any party hereunder to any other party
hereunder.
(h) NOTICE. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if
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delivered personally, telecopied (which is confirmed) or sent by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses:
If to the Company to:
Universal Outdoor Holdings, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to KIA V, KEP V or any Stockholder:
Xxxxx & Company
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Connnors II, Esq.
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
(i) FEES AND EXPENSES. The Company shall pay all fees and expenses in
connection with the transactions contemplated hereby including without
limitation any stamp or transfer taxes and any similar duties or charges.
(j) COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company, KIA V, KEP V and the Stockholders
have executed this Agreement as of the date first above written.
UNIVERSAL OUTDOOR HOLDINGS, INC.
By:
------------------------------
Name:
Title:
XXXXX INVESTMENT ASSOCIATES V, L.P.
By Xxxxx Partners V, L.P.,
as general partner
By:
------------------------------
Name:
Title:
Date: July 26, 1996
XXXXX EQUITY PARTNERS V, L.P.
By:
------------------------------
Name:
Title:
Date: July 26, 1996
STOCKHOLDERS
---------------------------------
Xxxxxxx X. Xxxxxxxx
Date: July 26, 1996
---------------------------------
Xxxxx X. Xxxxxxxx
Date: July 26, 1996
---------------------------------
Xxxxxx Xxxxxxxx
Date: July 26, 1996
---------------------------------
Xxxxxx X. Xxxxx
Date: July 26, 1996
---------------------------------
Xxxxxxxx Xxxxxx Xxxxx
Date: July 26, 1996
---------------------------------
Xxxx X. XxXxxxxxxxxx
Date: July 26, 1996
---------------------------------
Xxxx Xxxxxxxx
Date: July 26, 1996
Schedule 1
Common Stock
Class B Class C (following 16 for
Entity Common Stock Common Stock Common Stock 1 stock split)
------ ------------ ------------ ------------ --------------
KIA V 176,253 172,487 348,740 5,579,840
KEP V 10,247 10,138 20,385 326,160
Xxxxxxx X. Xxxxxxxx 0 625 625 10,000
Xxxxx X. Xxxxxxxx 0 1,250 1,250 20,000
Xxxxxx Xxxxxxxx 0 1,875 1,875 30,000
Xxxxxx X. Xxxxx 0 250 250 4,000
Xxxxxxxx Xxxxxx Xxxxx 0 937.5 937.5 15,000
Xxxx X. XxXxxxxxxxxx 0 625 625 10,000
Xxxx Xxxxxxxx 0 312.5 312.5 5,000
Total 186,500 188,500 375,000 6,000,000
