Exhibit 10.4
AGREEMENT AND PLAN OF MERGER
By and among
HQ Global Workplaces, Inc.,
HQ Global Holdings, Inc.
and
HQ Merger Subsidiary, Inc.
Dated as of June 1, 2000
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
June 1, 2000, by and among HQ Global Workplaces, Inc., a Delaware corporation
(the "Company"), HQ Global Holdings, Inc., a Delaware corporation ("Holdco"),
and HQ Merger Subsidiary, Inc., a Delaware corporation ("M Sub").
WHEREAS, M Sub is a wholly-owned subsidiary of Holdco, a wholly-owned
subsidiary of the Company; and
WHEREAS, the Company, Holdco and M Sub wish to reorganize their
corporate structure pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the aforesaid and the respective
warranties, representations, covenants and agreements hereinafter set forth,
the parties, intending to be legally bound, agree as follows:
Section 1. The Merger.
(a) The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the relevant provisions of the
Delaware General Corporation Law (the "Delaware Law"), Company shall
be merged (the "Second Step Merger") with and into M-Sub with M-Sub
continuing as the surviving corporation (the "Second Step Surviving
Corporation") under the name "HQ Global Workplaces, Inc." The Second
Step Surviving Corporation shall continue its corporate existence
under the laws of the State of Delaware, and the separate corporate
existence of the Company shall cease.
(b) Effective Time. As soon as practical following the
execution hereof, the Second Step Merger shall be consummated by
filing with the Secretary of State of the State of Delaware this
Agreement as is required by, and executed in accordance with, the
relevant provisions of the Delaware Law (the time of such filing
being the "Second Step Effective Time").
(c) Effects of the Merger. The Second Step Merger shall have
the effects set forth in Section 259 of the Delaware Law. For federal
income tax purposes, it is intended that the Second Step Merger shall
qualify as a reorganization within the meaning of Section 368(a)(1)
of the Internal Revenue Code of 1986, as amended (the "Code").
(d) Certificate of Incorporation and By-Laws. The
Certificate of Incorporation of M-Sub shall be amended in the Second
Step Merger to read in its entirety as set forth in Exhibit A,
attached hereto, and as so amended, shall be the Certificate of
Incorporation of the Second Step Surviving Corporation.
The By-Laws of the Company at the Effective Time shall be the By-Laws
of the Second Step Surviving Corporation, until modified in
accordance with applicable law.
(e) Directors and Officers. At the Effective Time, the board
of directors of the Company shall be the board of directors of the
Second Step Surviving Corporation until their respective successors
are duly elected and qualified. The officers of the Company at the
Effective Time shall be the officers of the Second Step Surviving
Corporation until replaced in accordance with the By-Laws of the
Second Step Surviving Corporation.
(f) Conversion of Company Stock.
(i) Each share of the Company's Class C Convertible
Non-Voting Common Stock, par value $.01 per share ("Company
Non-Voting Common Stock"), shall, by virtue of the Second
Step Merger, and without any action on the part of the
holder thereof be converted into the right to receive one
share of Holdco Convertible Non-Voting Common Stock, par
value $.0l per share ("Holdco Non-Voting Common Stock").
(ii) Each share of the Company's Voting Common
Stock, par value $.01 per share ("Company Voting Common
Stock"), shall, by virtue of the Second Step Merger, and
without any action on the part of the holder thereof be
converted into the right to receive one share of Holdco
Voting Common Stock, par value $.01 per share ("Holdco
Voting Common Stock"). The shares of Holdco Non-Voting
Common Stock and of Holdco Voting Common Stock are
collectively referred to herein as the "Holdco Shares."
(iii) Each share of Holdco Voting Common Stock and
Holdco Non-Voting Common Stock outstanding immediately prior
to the Effective Time shall, by virtue of the Second Step
Merger, be cancelled without any payment therefor.
(g) Stock Options and Warrants; Payment Rights.
(i) At the Effective Time, each (a) outstanding
option to purchase shares of the Company's Voting Common
Stock (with reference to the aforementioned outstanding
options, collectively, the "HQ Stock Options") and (b)
warrants or other rights to purchase shares of Voting Common
Stock and Non-Voting Common Stock ("Warrants", and together
with HQ Stock Options, collectively, "HQ Equity Awards")
shall be automatically amended to constitute an option to
acquire the number of shares of Holdco Voting Common Stock
or Holdco Non-Voting Common Stock as the holder of such HQ
Equity Award would have been entitled to receive pursuant to
the Second Step Merger had such holder exercised such HQ
Equity Award (free of and without regard to any limitation
on the vesting of the right to exercise such HQ Equity
Award) immediately prior to the Second Step Effective Time.
Section 2. Distribution of Stock.
(a) Holdco shall cause certificates representing the Holdco
Shares to be issued pursuant to Section 1(f) to be issued and
delivered to each holder of HQ Shares, respectively, at the Closing.
The Holdco Voting Common Stock and Holdco Non-Voting Common Stock
issued to holders of Company Voting Common Stock and Company
Non-Voting Common Stock are from time to time referred to herein
collectively as the "Merger Consideration".
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, Holdco shall issue instructions to each
holder, immediately prior to the Second Step Effective Time, of
Company Voting Common Stock and Company Non-Voting Common Stock for
use in effecting the surrender of the certificates representing
Company Voting Common Stock or Company Non-Voting Common Stock
("Certificates") in exchange for the Merger Consideration. Upon
surrender of a Certificate for cancellation to Holdco, together with
such customary documents as may be required pursuant to such
instructions (collectively, the "Second Step Transmittal Documents"),
the holder of such Certificate shall be entitled to receive in
exchange therefor certificates representing the whole number of
shares to be issued to such holder pursuant to Section l(f)(i) or
(ii). In the event of a transfer of ownership of shares of Company
Voting Common Stock and Company Non-Voting Common Stock which is not
registered in the transfer records of the Company, the Merger
Consideration payable hereunder may be issued and paid in accordance
with this Section 2 to the transferee of such shares if the
Certificate evidencing such shares of Company Voting Common Stock and
Company Non-Voting Common Stock is presented to Holdco and is
properly endorsed or otherwise in proper form for transfer. The
signature on the Certificate or any related stock power must be
properly guaranteed and the person requesting payment of the Merger
Consideration must either pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of
the Certificate so surrendered or establish to Holdco that such tax
has been paid or is not applicable. The Merger Consideration will be
delivered by Holdco as promptly as practicable following surrender of
a Certificate and the related Second Step Transmittal Documents. In
no event will interest be payable on the Merger Consideration. Until
surrendered in accordance with this Section 2, each Certificate shall
be deemed at any time after the Effective Time to evidence only the
right to receive, upon such surrender, the Merger Consideration for
each share of Company Voting Common Stock or Company Non-Voting
Common Stock, as applicable, formerly represented by such
Certificate.
(c) No Liability. The Second Step Surviving Corporation
shall not be liable to any holder of shares of Voting Common Stock or
Non-Voting Common Stock, applicable, for any Merger Consolidation
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law. If any Certificate shall not have
been surrendered prior to seven years after the Effective Time (or
immediately prior to such earlier date on which any Merger
Consideration would otherwise escheat to or become the property of
any Governmental Entity) any such Merger Consideration in respect of
such Certificate shall, to the extent permitted by applicable laws,
become the property of the Second Step Surviving Corporation, free
and clear of all claims or interest of any person previously entitled
thereto.
(d) Lost, Stolen or Destroyed Certificates. In the event any
Certificates evidencing shares of Company Voting Common Stock or
Company Non-Voting Common Stock, as applicable, shall have been lost,
stolen or destroyed, the holder of such lost, stolen or destroyed
Certificate(s) shall execute an affidavit of that fact upon request.
The holder of any such lost, stolen or destroyed Certificate(s) shall
also deliver a reasonable indemnity against any claim that may be
made against the Second Step Surviving Corporation with respect to
the Certificate(s) alleged to have been lost, stolen or destroyed.
The affidavit and any indemnity which may be required hereunder shall
be delivered to the Second Step Surviving Corporation, who shall be
responsible for making payment of the Merger Consideration for such
lost, stolen or destroyed Certificates(s) pursuant to the terms
hereof.
(e) Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed, and there shall be no
further registration of transfers of shares of Company Voting Common
Stock or Company Non-Voting Common Stock, as applicable, thereafter
on the records of the Company. Any Certificates presented to the
Second Step Surviving Corporation for any reason at or after the
Effective Time shall be canceled and exchanged for the Merger
Consideration pursuant to the terms in this Section 2.
Section 3. Mutual Covenants.
(a) Consummation of the Transactions. Subject to the terms
and conditions of this Agreement, each of the Company, M Sub and
Holdco shall use their respective commercially reasonable efforts to
cause the Second Step Merger and the Closing to occur upon the terms
hereof.
Section 4. Conditions to Closing.
(a) Each Party's Obligation. The respective obligation of
each party hereto to effect the transactions contemplated hereby is
subject to the satisfaction or waiver as of the Closing of the
following condition:
(i) No statute, rule, regulation, executive order,
decree, temporary restraining order, preliminary or
permanent injunction or other order shall have been enacted,
entered, promulgated, enforced or issued by any Governmental
Entity, and no other legal restraint or prohibition shall be
in effect, that prevents the Second Step Merger or any of
the other transactions contemplated by this Agreement, and
no action, claim, proceeding or investigation shall be
pending or threatened by any Governmental Entity that, if
successful, would result in any of the foregoing effects.
Section 5. Further Assurances. From time to time, as and when
requested by another party hereto, a party hereto shall execute and deliver,
or cause to be executed and delivered, all such documents and instruments and
shall take, or cause to be taken, all such further or other actions as such
other party may reasonably deem necessary or desirable to consummate the
transactions contemplated by this Agreement.
Section 6. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by any of the Company, M Sub
or Holdco. Any attempted assignment in violation of this Section 6 shall be
void ab initio and of no further force and effect.
Section 7. No Third-Party Beneficiaries. This Agreement is for the
sole benefit of the parties hereto and their successors and permitted assigns,
and nothing herein expressed or implied shall give or be construed to give to
any person, other than the parties hereto and such successors and assigns, any
legal or equitable rights hereunder.
Section 8. Interpretation. The headings contained in this Agreement,
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement is gender neutral. Any word
in this Agreement that refers to a particular gender shall also refer to all
other genders, including masculine, feminine and neuter.
Section 9. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
Section 10. Entire Agreement. This Agreement and the exhibits hereto
contains the entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersede all prior agreements
and understandings relating to such subject matter. The parties hereto shall
not be liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject matter
except as specifically set forth herein.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
HQ GLOBAL WORKPLACES, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Louis
Title: Vice President
HQ GLOBAL HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Louis
Title: Vice President
HQ MERGER SUBSIDIARY, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Louis
Title: Vice President
CERTIFICATE
OF THE
SECRETARY OF
HQ GLOBAL WORKPLACES, INC.
THE UNDERSIGNED, secretary of HQ GLOBAL WORKPLACES, INC., hereby
certifies that:
1. The foregoing Agreement and Plan of Merger has been adopted
pursuant to Section 251(g) of the Delaware General Corporation
Law.
2. The conditions specified in the first sentence of Section 251(g)
have been satisfied.
/s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Louis, Vice President,
Secretary and General Counsel
CERTIFICATE
OF THE
SECRETARY OF
HQ MERGER SUBSIDARY, INC.
THE UNDERSIGNED, secretary of HQ MERGER SUBSIDIARY, INC., hereby
certifies that:
1. The foregoing Agreement and Plan of Merger has been adopted
pursuant to Section 251(g) of the Delaware General Corporation
Law.
2. The conditions specified in the first sentence of Section 251(g)
have been satisfied.
3 Pursuant to Section 228 of the Delaware General Corporation Law,
the sole shareholder of HQ Merger Subsidiary, Inc., a Delaware
corporation, has consented to the foregoing Agreement and Plan
of Merger, and to the consummation of the merger of HQ Global
Workplaces, Inc., a Delaware corporation, with and into HQ
Merger Subsidiary pursuant to the foregoing Agreement and Plan
of Merger.
/s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Louis, Vice President,
Secretary and General Counsel
