AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER, is entered into as of February 7, 2007 (this
“Agreement”), by and among Xxxxxxx Holdco, Inc., a Delaware corporation
(“Parent”), Xxxxxxx Merger Company, a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger Sub”), and Xxxxxxx Company, a Delaware corporation
(the “Company”).
WHEREAS,
the respective Boards of Directors of the Company and Merger Sub have approved
and declared advisable, and the Board of Directors of Parent has approved,
this
Agreement and the merger of Merger Sub with and into the Company (the “Merger”),
on the terms and subject to the conditions provided for in this
Agreement;
WHEREAS,
Parent, the Company and the Company’s shareholders intend for the Merger to be
treated as an exchange that is governed, in part, by Section 351 of the Internal
Revenue Code of 1986, as amended (the “Code”); and
WHEREAS,
the respective shareholders of the Company and Merger Sub have approved this
Agreement and the Merger, on the terms and subject to the conditions provided
for in this Agreement.
NOW,
THEREFORE, in consideration of the representations, warranties, covenants and
agreements contained in this Agreement, and intending to be legally bound
hereby, Parent, Merger Sub and the Company hereby agree as follows:
ARTICLE
I
The
Merger
SECTION
1.1. The
Merger.
Upon
the terms and subject to the conditions set forth in this Agreement, and in
accordance with the General Corporation Law of the State of Delaware (the
“DGCL”), at the Effective Time (as defined below) Merger Sub shall be merged
with and into the Company, and the separate corporate existence of Merger Sub
shall thereupon cease, and the Company shall be the surviving corporation in
the
Merger (the “Surviving Corporation”).
SECTION
1.2. Effective
Time.
On a
date to be mutually agreed upon by the parties (the “Closing Date”), the parties
shall file with the Secretary of State of the State of Delaware a certificate
of
merger, executed in accordance with the relevant provisions of the DGCL (the
“Certificate of Merger”). The Merger shall become effective upon the filing of
the Certificate of Merger (the time at which the Merger becomes effective is
herein referred to as the “Effective Time”).
SECTION
1.3. Effects
of the Merger.
The
Merger shall have the effects set forth in the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all
the
properties, rights, privileges, powers and franchises of the Company and Merger
Sub shall vest in the Surviving Corporation, and all debts, liabilities and
duties of the Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
SECTION
1.4. Certificate
of Incorporation and By-laws of the Surviving Corporation.
(a) The
certificate of incorporation of the Company, as amended and restated in the
form
attached hereto as Exhibit
A,
shall
be the certificate of incorporation of the Surviving Corporation until
thereafter amended as provided therein or by applicable law.
(b) 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.
SECTION
1.5. Directors
and Officers of the Surviving Corporation.
(a) The
directors of the Company immediately prior to the Effective Time shall continue
to be the directors of the Surviving Corporation immediately following the
Effective Time, until their respective successors are duly elected or appointed
and qualified or their earlier death, resignation or removal in accordance
with
the certificate of incorporation and by-laws of the Surviving
Corporation.
(b) The
officers of the Company immediately prior to the Effective Time shall continue
to be the officers of the Surviving Corporation until their respective
successors are duly appointed and qualified or their earlier death, resignation
or removal in accordance with the certificate of incorporation and by-laws
of
the Surviving Corporation.
ARTICLE
II
Effect
of the Merger on the Capital Stock of the
Constituent
Corporations; Exchange of Certificates; Company Stock Options
SECTION
2.1. Effect
on Capital Stock.
At the
Effective Time, by virtue of the Merger and without any action on the part
of
the holder of any shares of Class A common stock, par value $0.01 per share,
of
the Company (“Class A Common Stock”), or any shares of Class B common stock, par
value $0.01 per share, of the Company (“Class B Common Stock”, and collectively
with the Class A Common Stock, the “Company Common Stock”), or any shares of
capital stock of Merger Sub:
(a) Capital
Stock of Merger Sub.
Each
issued and outstanding share of each class of capital stock of Merger Sub shall
be converted into and become one validly issued, fully paid and nonassessable
share of the common stock, par value $0.01 per share, of the Surviving
Corporation.
(b) Cancellation
of Treasury Stock and Parent-Owned Stock.
Any
shares of Company Common Stock that are owned by the Company as treasury stock,
and any shares of Company Common Stock owned by Parent or Merger Sub, shall
be
automatically canceled and shall cease to exist and no consideration shall
be
delivered in exchange therefor.
(c) Conversion
Class A Common Stock.
(i) Each
issued and outstanding share of Class A Common Stock (other than shares to
be
canceled in accordance with Section 2.1(b)) shall be converted into the right
to
receive (A) one (1) validly issued, fully paid and nonassessable share of Class
A common stock, par value $0.01 per share, of Parent (“Parent Class A Stock”),
and (B) $72.85 in cash.
(ii) As
of the
Effective Time, all such shares of Class A Common Stock shall no longer be
outstanding and shall automatically be canceled and shall cease to exist, and
each holder of a certificate which immediately prior to the Effective Time
represented any such shares of Class A Common Stock (each, a “Certificate”)
shall cease to have any rights with respect thereto, except the right to receive
the consideration described in subparagraph (i) above (the “Merger
Consideration”), and any declared or unpaid dividends or other distributions to
which such holder is entitled on such shares, without interest.
(d) Assumption
of Equity Incentive Plan and Awards.
Parent
shall assume the Company’s Amended and Restated Equity Incentive Plan, dated
November 30, 2006 (the “Plan”) pursuant to Section 13(b) of the Plan, and amend
and restate the Plan in the form attached hereto as Exhibit
B.
Parent
shall further assume (i) any options granted to purchase shares of Class B
Common Stock under the Plan (the “Option Awards”) and pursuant to option
agreements between the Company and employees or directors of the Company and
its
subsidiaries (the “Option Agreements”), and (ii) any restricted stock awards for
Class B Common Stock issued under the Plan (“Restricted Stock Awards”) and
pursuant to restricted stock agreements (“RSAs”) on the same terms and
conditions set forth in such Option Agreements and RSAs as in effect immediately
prior to the Effective Time; provided,
however,
that
the shares of capital stock subject to the Option Awards and RSAs shall be
substituted with an equal number of shares of Class B common stock, $0.01 par
value, of Parent (“Parent Class B Stock,” and together with the Parent Class A
Stock, the “Parent Stock”).
(e) Appraisal
Rights.
Notwithstanding anything in this Agreement to the contrary, Company Common
Stock
issued and outstanding immediately prior to the Effective Time and which is
held
by a stockholder who did not vote in favor of the Merger (or consent thereto
in
writing) and who is entitled to demand and properly demands appraisal of such
shares pursuant to, and who complies in all respects with, the provisions of
Section 262 of the DGCL (the “Dissenting Stockholders”), shall not be, in the
case of Class A Common Stock, converted into or be exchangeable for the right
to
receive the Merger Consideration, or in the case of Class B Common Stock, be
substituted pursuant to Section
2.1(d)
above,
(the “Dissenting Shares”), but instead in each case such holder shall be
entitled to payment of the fair value of such shares in accordance with the
provisions of Section 262 of the DGCL (and at the Effective Time, such
Dissenting Shares shall no longer be outstanding and shall automatically be
canceled and shall cease to exist, and such holder shall cease to have any
rights with respect thereto, except the right to receive the fair value of
such
Dissenting Shares in accordance with the provisions of Section 262 of the DGCL),
unless and until such holder shall have failed to perfect or shall have
effectively withdrawn or lost rights to appraisal under the DGCL. If any
Dissenting Stockholder shall have failed to perfect or shall have effectively
withdrawn or lost such right, such holder’s Company Common Stock shall thereupon
be treated as if, in the case of Class A Common Stock, they had been converted
into and become exchangeable for the right to receive, as of the Effective
Time,
the Merger Consideration, or in the case of Class B Common Stock, had been
substituted pursuant to Section
2.1(d)
above as
of the Effective Time, for each such share of Company Common Stock, without
any
interest thereon.
SECTION
2.2. Exchange
of Certificates.
(a) Exchange
Procedures.
Within
ten (10) business days following the Closing Date, each holder of Company Common
Stock shall surrender any certificate representing Company Common Stock for
cancellation in the books and records of the Company, and Parent shall mail
to
each former holder of Company Common Stock a new certificate representing the
shares of Parent Stock to which such holder is entitled under Sections 2.1(c)
or
(d) above.
(b) Transfer
Books; No Further Ownership Rights in Company Common Stock.
The
Merger Consideration paid in respect of shares of Class A Common Stock shall
be
deemed to have been paid in full satisfaction of all rights pertaining to the
shares of Class A Common Stock. At the Effective Time, upon the assumption
of
the Option Awards or RSAs and the substitution of the Parent Class B Stock,
the
recipients of the Option Awards or RSAs, as the case may be, shall cease to
have
any further rights with respect to the Class B Common Stock. At the Effective
Time, the stock transfer books of the Company shall be closed and thereafter
there shall be no further registration of transfers of the Company Common Stock
on the stock transfer books of the Surviving Corporation.
SECTION
2.3. Withholding.
Parent
shall be entitled to deduct and withhold from the Merger Consideration, any
such
amounts as Parent is required to deduct and withhold under the Code, or any
provision of state, local or foreign tax law, with respect to the making of
such
payment. To the extent that amounts are so withheld by Parent, such withheld
amounts shall be treated for all purposes of this Agreement as having been
paid
to the stockholder in respect of whom such deduction and withholding was made
by
Parent.
ARTICLE
III
Miscellaneous
SECTION
3.1. Entire
Agreement.
This
Agreement constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or
any
of them, with respect to the subject matter hereof.
SECTION
3.2. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware, applicable to contracts executed in and to be performed
entirely within that State.
SECTION
3.3. Severability.
If any
term or other provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other terms, provisions and conditions of this
Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the
extent possible.
[signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first above written.
XXXXXXX
HOLDCO, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Executive Vice President and Chief Financial Officer
XXXXXXX
MERGER COMPANY
By:
/s/ Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Executive Vice President and Chief Financial Officer
XXXXXXX
COMPANY
By:
/s/ Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Executive Vice President and Chief Financial Officer
