1
EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement"),
dated as of April 11, 1997, is entered into by and among VIASYSTEMS GROUP,
INC., a Delaware corporation (the "Company"), HMTF ACQUISITION, L.P., a
Delaware limited partnership ("HMTF"), HMTF U.K. ACQUISITION COMPANY, a
Delaware corporation ("HMTF U.K."), HICKS, MUSE, XXXX & XXXXX EQUITY FUND III,
L.P., a Delaware limited partnership ("Fund III"), and HM3 COINVESTORS, L.P., a
Texas limited partnership ("HM3" and, together with HMTF U.K. and Fund III, the
"Partners").
RECITALS:
WHEREAS, the Company and HMTF deem it advisable and to the
advantage of such entities that HMTF merge with and into the Company upon the
terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt this Merger
Agreement and do hereby agree that HMTF shall merge with and into the Company
on the following terms, conditions, and other provisions:
ARTICLE I
THE MERGER
1.1 Merger. Upon the terms and subject to the conditions
set forth in this Merger Agreement, HMTF shall be merged with and into the
Company (the "Merger") at the Effective Time (as hereinafter defined), with the
Company surviving the Merger (the "Surviving Corporation"). At the Effective
Time, the separate existence of HMTF shall cease and the Company shall continue
as the Surviving Corporation. The Surviving Corporation shall be governed by
the laws of the State of Delaware.
1.2 Effective Time of the Merger. Subject to the
provisions of this Agreement, the Company and HMTF shall cause the Merger to be
consummated by filing a certificate of merger ("Certificate of Merger") with
the Secretary of State of the State of Delaware, as soon as practicable on or
after the date the Closing occurs. The Merger shall become effective upon the
date when the Certificate of Merger is filed with the Secretary of State of
Delaware or at such later time as may be specified in the Certificate of Merger
(the "Effective Time").
2
1.3 Effects of Merger. (a) The Merger shall have the
effects as set forth in the applicable provisions of the General Corporation
Law of the State of Delaware (the "DGCL") and the Delaware Revised Uniform
Limited Partnership Act (the "DRLPA").
(b) From and after the Effective Time, the Certificate of
Incorporation of the Company shall be the Certificate of Incorporation of the
Surviving Corporation until duly amended in accordance with the terms thereof
and the DGCL.
(b) From and after the Effective Time, the Bylaws of the
Company shall be the Bylaws of the Surviving Corporation until duly amended in
accordance with the terms thereof and the DGCL.
(c) The directors and officers of the Company immediately
prior to the Effective Time shall, from and after the Effective Time, continue
to serve as the directors and officers of the Surviving Corporation until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and Bylaws.
ARTICLE II
CONVERSION OF SECURITIES
2.1 General and Limited Partnership Interests of HMTF. At the
Effective Time, by virtue of the Merger and without any action on the part of
the Partners, the general and limited partnership interests of HMTF shall be
converted into the right to receive an aggregate of 1,600,000 shares of Series
C Preferred Stock, par value $.01 per share ("Preferred Stock") of the Company,
to be allocated among the Partners pro rata in accordance with their respective
sharing ratios specified in the Amended and Restated Limited Partnership
Agreement of HMTF dated as of April 4, 1997 (the "Partnership Agreement").
2.2 Capital Stock of the Company. Each share of the Company's
capital stock outstanding as of the Effective Time, shall remain outstanding
and be unaffected by the Merger.
3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of HMTF. HMTF represents and
warrants to the Company as follows:
(a) Organization and Existence. HMTF is a duly organized
and validly existing limited partnership under the laws of the State of
Delaware and has all requisite partnership power and authority to own its
assets and carry on its business as now being conducted and to consummate the
transactions contemplated by this Merger Agreement.
(b) Capitalization of HMTF. The sole general partner of
HMTF is HMTF U.K. and the sole limited partners of the partnership are Fund III
and HM3. There are no outstanding options, warrants, calls, subscriptions,
claims or other rights, agreements or commitments obligating HMTF to issue any
additional partnership interests or any other securities convertible into,
exchangeable for or evidencing the right to subscribe for any partnership
interests of HMTF.
(c) Capitalization of PCB Acquisition Limited and PCB
Investments Plc. HMTF is the record and beneficial owner of all of the
outstanding share capital of PCB Acquisition Limited, a United Kingdom limited
corporation ("PCB Acquisition"), and PCB Acquisition and Xxxxx X. Xxxxx are the
beneficial owners of all of the outstanding share capital of PCB Investments
plc, a United Kingdom public limited company ("PCB Investments"), in each case
free and clear of any and all liens, pledges, charges, restrictions, options,
rights of first offer or refusal, security interests, or other encumbrances of
any character whatsoever, whether written or oral and whether or not relating
to the extension of credit or the borrowing of money ("Encumbrances"), other
than Encumbrances placed on such shares pursuant to security documents entered
into pursuant to the credit agreement dated as of March 2, 1997, among PCB
Acquisition, PCB Investments, Chase Manhattan International Limited, as
administrative agent and collateral agent, The Chase Manhattan Bank, acting
through its London branch as issuing lender and the other lenders party
thereto. To HMTF's knowledge, there are no outstanding options, warrants,
calls, subscriptions, rights, claims or other rights, agreements or commitments
obligating either PCB Acquisition or PCB Investments to issue any additional
shares of capital stock or any other securities convertible into, exchangeable
for or evidencing the right to subscribe for any shares of such capital stock.
3
4
(d) Authority. HMTF has all requisite partnership power
and authority to enter into this Merger Agreement and perform its obligations
hereunder. The execution, delivery and performance of this Merger Agreement
have been duly authorized by all necessary partnership action on the part of
HMTF, and this Merger Agreement has been duly executed and delivered by HMTF.
This Merger Agreement has been duly and validly executed and delivered by HMTF
and constitutes the legal, valid and binding obligation of HMTF, enforceable
against HMTF in accordance with its terms subject, as to enforceability, to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other laws of general applicability affecting the rights of creditors and to
general principles of equity.
(c) No Conflict. The execution, delivery and performance
by HMTF of this Merger Agreement does not and will not (a) violate or
contravene in any material respect or be in conflict in any material respect
with (i) any provision of the Certificate of Limited Partnership of HMTF or the
Partnership Agreement, (ii) any provision of any law, rule or regulation
applicable to HMTF, (iii) any order, judgment or decree of any court or other
agency applicable to HMTF, (b) violate, result in a breach of or constitute a
default under any term of any material mortgage, indenture, contract or
agreement to which HMTF is a party or by which it or any of its respective
properties is bound, or (c) result in the creation of any Encumbrance on any of
the properties or assets of HMTF.
3.2 Representations and Warranties of the Partners. Each of the
Partners hereby represents (severally as to itself only, and not jointly) to
the Company as follows:
(a) No Intent to Distribute. The shares of Preferred
Stock to be acquired by it pursuant to the Merger are being acquired for its
own account and without a view to the distribution or resale of such securities
or any interest therein in violation of the Securities Act of 1933, as amended
(the "Securities Act"), or any similar federal statute, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder,
all as the same shall be in effect at any time of determination; provided that
the Company acknowledges that HMTF U.K. may, after the Merger, distribute the
shares of Preferred Stock to be received by it to Fund III (its sole
stockholder).
(b) Accredited Investor. Such Partner is an "Accredited
Investor" as such term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act.
(c) Experience. Such Partner has such experience in
business and financial matters as to be fully capable of evaluating the risks
and merits of an investment in the shares of Preferred Stock, and it's
financial position is such that it is able to bear the risk of such investment,
including the risk of possible loss of its entire investment.
4
5
(d) No Registration. Such Partner acknowledges that the
shares of Preferred Stock to be issued pursuant hereto have not been registered
under the Securities Act and understands that such shares must be held
indefinitely unless they are subsequently registered under the Securities Act
or such sale is permitted pursuant to an available exemption from such
registration requirement.
3.3 Representations and Warranties of the Company. The Company
hereby represents and warrants to HMTF and the Partners as follows:
(a) Corporate Existence. The Company is duly organized
and validly existing under the laws of the State of Delaware and has all
requisite corporate power and authority to own its assets and carry on its
business as now being conducted and to consummate the transactions contemplated
by this Merger Agreement.
(b) Capitalization. The duly authorized capital stock of
the Company consists of (i) 30,000,000 shares of Preferred Stock, par value
$.01 per share ("Preferred Stock"), of which (a) 8,000,000 shares have been
designated Series A Preferred Stock, of which 1,800,000 shares are issued and
outstanding, (b) 6,000,000 shares have been designated Series B Preferred
Stock, of which 1,200,000 shares are issued and outstanding and (c) 8,000,000
shares have been designated Series C Preferred Stock, of which 1,600,000 shares
will initially be outstanding after giving effect to the Merger, (ii)
90,000,000 shares of common stock, par value $.01 per share (the "Common
Stock"), of which 30,200,004 shares are issued and outstanding, and (iii)
10,000,000 shares of Class A Common Stock, par value $.01 per share ("Class A
Common Stock"), of which 4,098,333 shares are issued and outstanding. Except
for the Class A Common Stock, employee stock options outstanding on the date
hereof, and warrants to purchase an aggregate of 1,745,167 shares of Common
Stock to be issued pursuant to the Warrant Agreement dated as of the date
hereof between the Company and ChaseMellon Shareholder Services, L.L.C., as
warrant agent, there are no options, warrants, calls, subscriptions,
conversion or other rights, agreements or commitments obligating the Company to
issue any additional shares of capital stock or any other securities
convertible into, exchangeable for or evidencing the right to subscribe for any
shares of capital stock of the Company. When issued in accordance with the
provisions of this Merger Agreement, the shares of Preferred Stock to be issued
in the Merger will be duly authorized, validly issued, fully paid and
non-assessable and will be free and clear of any and all Encumbrances.
(c) Corporate Authorization. The Company has all
requisite corporate power and authority to enter into this Merger Agreement,
issue the shares of Common Stock to be issued pursuant hereto, and perform its
obligations hereunder. The execution, delivery
5
6
and performance of this Merger Agreement have been duly authorized by all
necessary corporate action on the part of the Company. The Merger Agreement
has been duly executed and delivered by the Company and constitutes the legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms subject, as to enforceability, to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other laws of
general applicability affecting the rights of creditors and to general
principles of equity.
(d) No Conflict. The execution, delivery and performance
by the Company of this Merger Agreement does not and will not (a) violate or
contravene in any material respect or be in conflict in any material respect
with (i) any provision of the certificate of incorporation or bylaws of the
Company, (ii) any provision of any law, rule or regulation applicable to the
Company, (iii) any order, judgment or decree of any court or other agency
applicable to the Company, (b) violate, result in a breach of or constitute a
default under any term of any material mortgage, indenture, contract or
agreement to which the Company is a party or by which it or any of its
properties is bound, or (c) result in the creation of any Encumbrance on any of
the properties or assets of the Company.
ARTICLE IV
MISCELLANEOUS
4.1 Governing Law. This Merger Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware.
4.2 Abandonment. At any time before the Effective Time, this
Merger Agreement may be terminated and the Merger contemplated hereby may be
abandoned by the board of directors of the Company or HMTF, as the general
partner of HMTF, or both, notwithstanding approval of this Merger Agreement by
the stockholders of the Company or the Partners.
4.3 Amendment. At any time after the approval of the Partners,
this Merger Agreement may be amended in any manner (except that any of the
principal terms may not be amended without the approval of the Partners), as
may be determined in the judgment of the board of directors of the Company or
HMTF to be necessary, desirable, or expedient in order to clarify the intention
of the parties hereto or to effect or facilitate the purpose and intent of this
Merger Agreement.
6
7
4.4 Counterparts. This Merger Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute, collectively, one and the same instrument.
4.5 Approval of the Merger Agreement and the Merger by the
Partners. By execution and delivery hereof, the Partners, constituting all of
the general and limited partners of HMTF, hereby consent to and approve the
Merger Agreement and the Merger in accordance with the Partnership Agreement
and the DRLPA.
7
8
IN WITNESS WHEREOF, this Merger Agreement, having first been
duly approved by the board of directors of the Company and the Partners of
HMTF, is hereby executed on behalf of the Company and HMTF by the respective
duly authorized officers of the Company and by HMTF U.K., the general partner
of HMTF.
VIASYSTEMS GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
HMTF ACQUISITION, L.P.,
a Delaware limited partnership
By: HMTF U.K. ACQUISITION COMPANY,
as General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx, Vice
President
8
9
HICKS, MUSE, XXXX & XXXXX EQUITY FUND III,
L.P., a Delaware limited partnership
By: HM3/GP Partners III, L.P., its General
Partner
By: Xxxxx, Muse GP Partners III, L.P., its
General Partner
By: Xxxxx, Muse Fund III Incorporated, its
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx, Vice President
HM3 COINVESTORS, L.P., a Texas limited
partnership
By: Xxxxx, Muse GP Partners III, L.P., its
General Partner
By: Xxxxx, Muse Fund III Incorporated, its
General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx, Vice President
9
10
CERTIFICATE OF ASSISTANT SECRETARY
OF
VIASYSTEMS GROUP, INC.
The undersigned, Xxxxx X. Xxxxxxx, hereby certifies that she
is the duly elected and presently incumbent Assistant Secretary of Viasystems
Group, Inc., a Delaware corporation (the "Company"), and hereby further
certifies as follows:
The Agreement and Plan of Merger (the "Agreement") to which
this Certificate of Assistant Secretary is attached was executed by a duly
authorized officer of the Company, and was duly adopted by the board of
directors of the Company with approval of the stockholders of the Company in
accordance with the first sentence of Section 251(f) of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned does hereby execute this
Certificate of Secretary.
Dated: April 11, 1997 /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx, Assistant Secretary
10
