Exhibit 2.1
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EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
AMONG
IPC INFORMATION SYSTEMS, INC.,
IPC COMMUNICATIONS, INC.
AND
IPC MERGER SUB TWO, INC.
DATED AS OF MAY 20, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER.........................................2
SECTION 1.2 EFFECTIVE DATE.....................................2
SECTION 1.3 CERTIFICATE OF INCORPORATION.......................2
SECTION 1.4 BY-LAWS............................................3
SECTION 1.5 DIRECTORS..........................................3
SECTION 1.6 OFFICERS...........................................3
SECTION 1.7 ADDITIONAL ACTIONS.................................3
SECTION 1.8 CONVERSION OF SECURITIES...........................4
SECTION 1.9 NO SURRENDER OF CERTIFICATES.......................4
ARTICLE II
ACTIONS TO BE TAKEN IN
CONNECTION WITH THE MERGER
SECTION 2.1 ASSUMPTION OF STOCK INCENTIVE PLAN.................4
SECTION 2.2 RESERVATION OF SHARES..............................5
ARTICLE III
CONDITIONS OF MERGER
SECTION 3.1 CONDITIONS PRECEDENT...............................5
ARTICLE IV
COVENANTS
SECTION 4.1 ELECTION OF DIRECTORS..............................5
SECTION 4.2 LISTING OF HOLDING COMPANY COMMON STOCK............5
SECTION 4.3 STOCK INCENTIVE PLAN. ............................6
ARTICLE V
TERMINATION AND AMENDMENT
SECTION 5.1 TERMINATION........................................6
SECTION 5.2 AMENDMENTS.........................................6
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 GOVERNING LAW......................................6
SECTION 6.2 COUNTERPARTS.......................................6
SECTION 6.3 ENTIRE AGREEMENT...................................6
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), entered into as of May
20, 1999, by and among IPC Information Systems, Inc., a Delaware corporation
(the "Company"), IPC Communications, Inc., a Delaware corporation ("Holding")
and a direct, wholly owned subsidiary of the Company, and IPC Merger Sub Two,
Inc., a Delaware corporation ("Merger Sub") and a direct, wholly owned
subsidiary of Holding.
PRELIMINARY STATEMENTS
1. The Company's authorized capital stock consists of (i) 25,000,000
shares of common stock, par value one cent ($0.01) per share (the "Company
Common Stock"), of which, as of April 30, 1999, 8,076,188 shares were issued and
outstanding and no shares were held in the Company's treasury; and (ii)
10,000,000 shares of preferred stock, par value one cent ($0.01) per share, none
of which is currently outstanding.
2. As of the date hereof, Holding's authorized capital stock consists
of (i) 25,000,000 shares of common stock, par value one cent ($0.01) per share
(the "Holding Common Stock"), of which 1,000 shares are issued and outstanding
and owned by the Company and no shares are held in treasury, and (ii) 10,000,000
shares of preferred stock, par value one cent ($0.01) per share, none of which
are outstanding.
3. As of the date hereof, Merger Sub has an authorized capital stock
consisting of 1,000 shares of common stock, par value one cent ($0.01) per share
(the "Merger Sub Common Stock"), of which 1,000 shares are issued and
outstanding on the date hereof and owned by Holding.
4. The designations, rights and preferences, and the qualifications,
limitations and restrictions of the Holding Common Stock are the same as those
of the Company Common Stock.
5. The Certificate of Incorporation of Holding (the "Holding Charter")
and the By-laws of Holding (the "Holding By-laws") in effect immediately after
the Effective Date (as hereinafter defined) will contain provisions identical to
the Amended and Restated Certificate of Incorporation of the Company (the
"Company Charter") and By-laws of the Company (the "Company By-laws") in effect
immediately before the Effective Date (other than as required by Section 251(g)
of the General Corporation Law of the State of Delaware (the "DGCL")).
6. The directors and executive officers of the Company immediately
prior to the Merger (as hereinafter defined) will be the directors and executive
officers of Holding as of the Effective Date.
7. Holding and Merger Sub are newly formed corporations organized for
the purpose of participating in the transactions herein contemplated.
8. The Company desires to create a new holding company structure by
merging Merger Sub with and into the Company, with (a) the Company continuing as
the surviving corporation of
such merger and (b) each outstanding share (or any fraction thereof) of Company
Common Stock being converted in such merger into a like number of shares of
Holding Common Stock, all in accordance with the terms of this Agreement (the
"Merger").
9. The boards of directors of Holding, Merger Sub and the Company, the
Company, in its capacity as the sole stockholder of Holding, and Holding, in its
capacity as the sole stockholder of Merger Sub, have approved this Agreement and
the Merger upon the terms and subject to the conditions set forth in this
Agreement.
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, Holding and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 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, Merger Sub
shall, at the Effective Date, be merged with and into the Company, the separate
corporate existence of Merger Sub shall cease, and the Company shall continue as
the surviving corporation of the Merger (the "Surviving Corporation"). At the
Effective Date, the effects of the Merger shall be as provided in Section 259 of
the DGCL.
SECTION 1.2 EFFECTIVE DATE. As soon as practicable on or after the date
hereof, the parties shall file this Agreement, executed and certified in
accordance with the relevant provisions of the DGCL, with the Secretary of State
of the State of Delaware and shall make all other filings or recordings required
under the DGCL to effectuate the Merger. The Merger shall become effective as of
12:01 a.m. Eastern Daylight Time on May 21, 1999 (such date and time being
referred to herein as the "Effective Date").
SECTION 1.3 CERTIFICATE OF INCORPORATION. From and after the Effective
Date, the Company's Charter, as in effect immediately prior to the Effective
Date, shall be the certificate of incorporation of the Surviving Corporation
(the "Surviving Corporation's Charter") until thereafter amended as provided
therein or by the DGCL, except as follows:
(a) Article 4 thereof shall be amended so as to read in its
entirety as follows:
"The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 1,000
shares of common stock having a par value of one cent ($0.01)
per share. The Common Stock is sometimes hereinafter referred
to as the 'Capital Stock'."
(b) A new Article 8 shall be added thereto which shall be and read
in its entirety as follows:
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"8. Vote of Stockholders of IPC Communications, Inc. Required to
Approve Certain Actions.
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 Amended and Restated Certificate of Incorporation the
approval of the stockholders of the Corporation shall, pursuant to
Section 251(g) of the General Corporation Law of the State of Delaware,
require, in addition, the approval of the stockholders of IPC
Communications, Inc., 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 or this Amended and Restated Certificate
of Incorporation, as the case may be."
SECTION 1.4 BY-LAWS. From and after the Effective Date, the Company
By-laws, as in effect immediately prior to the Effective Date, shall constitute
the By-laws of the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
SECTION 1.5 DIRECTORS. The directors of the Company in office
immediately prior to the Effective Date shall be the directors of the Surviving
Corporation and will continue to hold office from the Effective Date until their
successors are duly elected or appointed and qualified in the manner provided in
the Surviving Corporation's Charter and By-laws, or as otherwise provided by
law.
SECTION 1.6 OFFICERS. The officers of the Company in office immediately
prior to the Effective Date shall be the officers of the Surviving Corporation
until the earlier of their resignation or removal or until their successors are
duly elected or appointed and qualified in the manner provided in the Surviving
Corporation's Charter and By-laws, or as otherwise provided by law.
SECTION 1.7 ADDITIONAL ACTIONS. Subject to the terms of this Agreement,
the parties hereto shall take all such reasonable and lawful actions which may
be necessary or appropriate in order to effectuate the Merger, which shall
include executing and delivering an Assumption Agreement (as hereinafter
defined), effective upon the Merger, in such form as the Company and Holding
determine to be appropriate to evidence the Company's assignment to and
Holding's assumption of such rights, interests, obligations and liabilities as
the Company and Holding determine to be appropriate. If, at any time after the
Effective Date, 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 Merger Sub 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 and
directors of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of Merger Sub 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 Merger Sub 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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SECTION 1.8 CONVERSION OF SECURITIES. At the Effective Date, by virtue
of the Merger and without any action on the part of Holding, Merger Sub, the
Company or the holder of any of the following securities:
(a) CONVERSION OF COMPANY COMMON STOCK. Each share of Company Common
Stock (or fraction of a share of Company Common Stock) issued and outstanding
immediately prior to the Effective Date shall be converted into and thereafter
represent one duly issued, fully paid and nonassessable share (or equal fraction
of a share) of Holding Common Stock.
(b) CONVERSION OF CAPITAL STOCK OF MERGER SUB. Each share of Merger Sub
Common Stock issued and outstanding immediately prior to the Effective Date
shall be converted into and thereafter represent one duly issued, fully paid and
nonassessable share of common stock, par value one cent ($0.01) per share, of
the Surviving Corporation.
(c) CANCELLATION OF CAPITAL STOCK OF HOLDING. Each share of Holding
Common Stock that is owned by the Company immediately prior to the Merger shall
automatically be cancelled and retired and shall cease to exist.
(d) RIGHTS OF CERTIFICATE HOLDERS. From and after the Effective Date,
holders of certificates formerly evidencing Company Common Stock shall cease to
have any rights as stockholders of the Company, except as provided by law;
except, however, that such holders shall have the rights set forth in Section
1.9 herein.
SECTION 1.9 NO SURRENDER OF CERTIFICATES. Until thereafter surrendered
for transfer or exchange, each outstanding stock certificate that, immediately
prior to the Effective Date, evidenced Company Common Stock shall be deemed and
treated for all corporate purposes to evidence the ownership of the number of
shares of Holding Common Stock into which such shares of Company Common Stock
were converted pursuant to the provisions of Section 1.8(a) herein.
ARTICLE II
ACTIONS TO BE TAKEN IN
CONNECTION WITH THE MERGER
SECTION 2.1 ASSUMPTION OF STOCK INCENTIVE PLAN. Holding and the Company
shall, as of the Effective Date, execute, acknowledge and deliver an assignment
and assumption agreement (the "Assumption Agreement") pursuant to which Holding
will, from and after the Effective Date, assume and agree to perform all
obligations of the Company pursuant to the Company's 1998 Stock Incentive Plan
(the "Stock Incentive Plan"). As of the Effective Date, each option to purchase
a share of Company Common Stock which has been granted and is then outstanding
and unexercised under the Stock Incentive Plan ("Existing Stock Option") shall
be converted into an option to purchase one share of Holding Common Stock at the
same exercise price, for the same period and subject to substantially the same
terms and conditions including any stockholder approval which may be required
with respect to the Stock Incentive Plan applicable to the relevant Existing
Stock Option ("Substitute Option"); provided, however, that after the Effective
Date no exercise shall occur unless and until the holder of the Existing Option
shall have executed
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and delivered to Holding an instrument in such form as Holding may prescribe to
evidence his or her acceptance of the terms and conditions of the Substitute
Option.
SECTION 2.2 RESERVATION OF SHARES. On or prior to the Effective Date,
Holding shall reserve sufficient authorized but unissued shares of Holding
Common Stock to provide for the issuance of Holding Common Stock upon the
exercise of options payable and outstanding under the Stock Incentive Plan, as
assumed by Holdings.
ARTICLE III
CONDITIONS OF MERGER
SECTION 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
of each of the following conditions:
(a) Prior to the Effective Date, the Holding Common Stock to be issued
pursuant to the Merger shall have been approved for listing, upon official
notice of issuance, by the American Stock Exchange (the "Amex").
(b) Prior to the Effective Date, Xxxxxxx Xxxxxxxx & Xxxx, counsel to
the Company, shall have received on behalf of the Company an interpretive or
no-action letter from the staff of the Securities and Exchange Commission, in
form and substance satisfactory to the Company, in response to that certain
request therefor dated May 6, 1999 from such firm.
(c) Prior to the Effective Date the board of directors of the Company
shall have determined, based on the opinion of Xxxxxxx Xxxxxxxx & Wood, special
tax counsel to the Company, in form and substance satisfactory to the Company,
that, for United States federal income tax purposes, no gain or loss will be
recognized by the stockholders of the Company.
(d) Prior to the Effective Date, no order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order 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.
ARTICLE IV
COVENANTS
SECTION 4.1 ELECTION OF DIRECTORS. The Company, in its capacity as the
sole stockholder of Holding, shall elect each person who is then a member of the
board of directors of the Company as a director of Holding (and to be the only
directors of Holding), each of whom shall serve until the next annual meeting of
shareholders of Holding and until his successor shall have been elected and
qualified or until such director's early resignation or removal.
SECTION 4.2 LISTING OF HOLDING COMPANY COMMON STOCK. Holding
shall use its best efforts to obtain, at or before the Effective Date,
authorization to list, upon official notice of issuance, on the Amex Holding
Common Stock issuable pursuant to the Merger.
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SECTION 4.3 STOCK INCENTIVE PLAN. The Company and Holding shall take or
cause to be taken all actions necessary or desirable in order for Holding to
assume the Stock Incentive Plan.
ARTICLE V
TERMINATION AND AMENDMENT
SECTION 5.1 TERMINATION. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Date by action of the board of directors of the Company, Holding or Merger Sub
if it is determined 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, Holding
or Merger Sub nor their respective stockholders, directors or officers shall
have any liability or rights with respect to such termination and abandonment.
SECTION 5.2 AMENDMENTS. This Agreement may be supplemented, amended or
modified by the mutual consent of the boards of directors of the parties to this
Agreement; provided, however, that, any amendment effected subsequent to
stockholder approval shall be subject to the restrictions contained in the DGCL.
No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the parties hereto.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws.
SECTION 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.
SECTION 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.
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IN WITNESS WHEREOF, Holding, Merger Sub and the Company have caused
this Agreement to be executed as of the date first written above by the
respective officers thereunto duly authorized.
IPC INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and
Chief Executive Officer
IPC COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President, Chief Executive
Officer and Assistant Secretary
IPC MERGER SUB TWO, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President, Chief Executive
Officer and Assistant Secretary
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