AGREEMENT AND PLAN OF MERGER OF GRANDE COMMUNICATIONS HOLDINGS, INC., A Delaware corporation INTO RIO HOLDINGS, INC., A Nevada corporation
Exhibit
2.1
A
Delaware corporation
INTO
RIO
HOLDINGS, INC.,
A
Nevada corporation
This Plan
of Merger (this “Agreement”) is by and
between Grande Communications Holdings, Inc., a Delaware corporation, sometimes
referred to in this Agreement as “Grande Holdings” and
Rio Holdings, Inc., a Nevada corporation and wholly-owned subsidiary of Grande
Holdings, (“Rio
Holdings”). The parties to this Agreement are collectively
referred to in this Agreement as the “Constituent
Companies.”
ARTICLE
I
PLAN
OF MERGER
1.01. Adoption
of Plan. This Agreement of
Grande Holdings and Rio Holdings has been adopted by their respective board of
directors and is being entered into in accordance with the provisions of
Delaware General Corporation Law (the “DGCL”) and Chapter
92A of the Nevada Revised Statutes (the “NRS”). The
board of directors of Grande Holdings will submit this Agreement to the
stockholders of Grande Holdings for their approval in accordance with the DGCL
and its Restated Certificate of Incorporation and Bylaws and Grande Holdings
will approve this Agreement by written consent as the sole stockholder of Rio
Holdings.
1.02. The
Merger. At the Effective
Time (as defined in Section 1.02 hereof), in accordance with this Agreement
pursuant to Section 92A.180 of the NRS and Section 253 of the DGCL, Grande
Holdings shall be merged with and into Rio Holdings (the “Merger”), the
separate existence of the Grande Holdings shall cease, and Rio Holdings shall
continue as the surviving corporation (the “Surviving
Corporation”), governed by the laws of the State of Nevada.
1.03. Effect of
the Merger. At
the Effective Time, the Surviving Corporation shall succeed, without other
transfer, to all the rights, privileges, powers, franchises, equipment, and
property of each of the Constituent Companies, and the Surviving Corporation
shall be subject to all the debts, liabilities and obligations of each of the
Constituent Companies, in the same manner as if the Surviving Corporation had
itself incurred the debts and liabilities. All rights of creditors
and all liens on the property of any Constituent Company, if any, shall remain
in force with respect to property affected by such liens immediately prior to
the Merger. The Surviving Corporation shall be responsible for
payment of all fees and franchise taxes of the Constituent Companies payable to
the State of Delaware and State of Nevada, if any. The Surviving
Corporation shall carry on business with the assets of the Constituent Companies
as the Constituent Companies existed immediately prior to the
Merger.
1.04. Consummation
of the Merger. As soon as practicable after satisfaction of
the conditions set forth in Article II hereof, Rio Holdings shall cause the
merger to be consummated by filing articles of merger with the Nevada Secretary
of State pursuant to the NRS, in such form as required by and executed in
accordance with the relevant provisions of the NRS (the “Articles of Merger”)
and a certificate of ownership and merger with the Delaware Secretary of State
pursuant to the Delaware General Corporation Law. The date of the
filing of the Articles of Merger with the Nevada Secretary of State shall be the
“Effective
Date” and the time of the filing of the Articles of Merger with the
Nevada Secretary of State shall be the “Effective
Time.”
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1
ARTICLE
II
CONDITIONS
TO MERGER; TERMINATION OR AMENDMENT
2.01. Conditions
to Merger. The obligations
of the Constituent Companies to effect the Merger is subject to the satisfaction
or waiver of the following conditions:
(a)
The Merger shall have been approved by the
stockholders of Grande Holdings in accordance with the applicable provisions of
the DGCL, its Restated Certificate of Incorporation and Bylaws.
(b)
The Merger shall have been approved by Grande Holdings as the sole stockholder
of Rio Holdings in accordance with the applicable provisions of the
NRS;
(c)
The transactions contemplated by the
Recapitalization Agreement, dated as of August 27, 2009, by and among Grande
Holdings, Grande Communications Networks, Inc., a Delaware corporation and
wholly-owned subsidiary of Grande Holdings, ABRY Partners VI, L.P., a Delaware
limited partnership, Grande Investment L.P., a Delaware limited partnership,
Grande Parent LLC, a Delaware limited liability company, and ABRY Partners, LLC,
a Delaware limited liability company, shall have been consummated.
2.02. Termination. At any time before the
Effective Time, this Agreement may be terminated and the Merger may be abandoned
by the board of directors of either Grande Holdings or Rio Holdings or both,
notwithstanding the approval of this Agreement or the Merger by the stockholders
of Grande Holdings or Rio Holdings.
2.03. Amendment. The
board of directors of the Constituent Companies may amend this Agreement by
mutual written consent at any time prior to the Effective Time, in accordance
with and to the extent permitted by Section 251 of the DGCL and Section 92A.120
of the NRS.
ARTICLE
III
MANNER
AND BASIS OF CONVERTING INTERESTS
3.01. Cancellation
of Rio Holdings Stock. Immediately prior to the Effective
Date, each share of the stock of Rio Holdings that is owned by Grande Holdings
shall automatically be cancelled and retired and shall cease to
exist.
3.02. Conversion
of Stock. As of the
Effective Date, by virtue of the Merger and without any action on the part of
the holders of any of the capital stock of Grande Holdings, the merger will have
the following effects on the capital stock of Grande Holdings:
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2
(a)
Each share of Series A Preferred Stock, par value
$0.001 per share, of Grande Holdings issued and outstanding immediately prior to
the Effective Time will be converted into one (1) share of Series A Preferred
Stock of Rio Holdings;
(b)
Each share of Series B Preferred Stock, par
value $0.001 per share, of Grande Holdings issued and outstanding immediately
prior to the Effective Time will be converted into one (1) share of Series B
Preferred Stock of Rio Holdings;
(c)
Each share of Series C Preferred Stock, par value $0.001 per
share, of Grande Holdings issued and outstanding immediately prior to the
Effective Time will be converted into one (1) share of Series C Preferred Stock
of Rio Holdings;
(d)
Each share of Series D Preferred
Stock, par value $0.001 per share, of Grande Holdings issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive one (1) share of Series D Preferred Stock of Rio Holdings;
(e)
Each share of Series E Preferred
Stock, par value $0.001 per share, of Grande Holdings issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive one (1) share of Series E Preferred Stock of Rio Holdings;
(f)
Each share of Series F Preferred
Stock, par value $0.001 per share, of Grande Holdings issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive one (1) share of Series F Preferred Stock of Rio Holdings;
(g)
Each share of Series G Preferred Stock, par
value $0.001 per share, of Grande Holdings (the “Series G Preferred
Stock”) issued and outstanding immediately prior to the Effective Time
will be converted into the right to receive one (1) share of Series G Preferred
Stock of Rio Holdings;
(h)
Each share of Series H Preferred
Stock, par value $0.001 per share, of Grande Holdings issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive one (1) share of Series H Preferred Stock of Rio Holdings;
and
(i)
Each share of Common Stock, par value
$0.001 per share, of Grande Holdings (the “Common Stock”) issued
and outstanding immediately prior to the Effective Time will be converted into
the right to receive one (1) share of Common Stock of Rio Holdings.
3.03. Treatment
of Options and Warrants.
(a)
All of the outstanding options and warrants to purchase
shares of common stock or preferred stock of Grande Holdings shall, by virtue of
the Merger and without any action on the part of the holders thereof,
automatically be converted into options or warrants to purchase the same number
and type of shares of the Surviving Corporation, for the same exercise price and
upon the same terms and conditions, and rights of adjustment as the existing
options and warrants of Grande Holdings.
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3
(b)
The Surviving Corporation hereby assumes and
agrees to perform all of Grande Holdings’ obligations under (i) the
warrants to purchase Common Stock issued to purchasers of Series G
Preferred Stock, and (ii) the warrants to purchase Common Stock issued to
initial purchasers of the 14% Senior Secured Notes of Grande Holdings due 2011
and the related Warrant Agreement, dated as of March 23, 2004, by and among
Grande Holdings and U.S. Bank National Association, as Warrant Agent, and Equity
Registration Rights Agreement, dated as of March 23, 2004, by and among Grande
Holdings, Bear Xxxxxxx & Co. Inc. and Deutsche Bank Securities, Inc.,
including in each case the issuance of the same number and type of shares of the
Surviving Corporation as the number and type of shares of Grande Holdings
issuable under such warrants, upon exercise thereof in accordance with the terms
thereof, for the same exercise price and on the same terms and conditions and
rights of adjustment as govern such warrants immediately prior to the
Merger.
3.04. Certificates. After
the Effective Time, all of the outstanding certificates which prior to that time
represented shares of Common Stock or Preferred Stock of Grande Holdings shall
be deemed for all purposes to evidence ownership of and to represent the shares
of Rio Holdings into which such shares of Grande Holdings represented by such
certificates have been converted as provided in this Agreement and shall be so
registered on the books and records of the Surviving Corporation. The
registered owner of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend or other
distributions upon the shares of Rio Holdings evidenced by such outstanding
certificates.
ARTICLE
IV
ORGANIZATIONAL
DOCUMENTS AND REGISTERED AGENT
4.01. Articles
and Bylaws of Surviving Corporation. The
Articles of Incorporation and Bylaws of Rio Holdings, as existing on the
Effective Date, shall continue in full force as the Articles of Incorporation
and Bylaws of the Surviving Corporation, until amended as provided therein and
in accordance with the NRS.
(a)
The Articles of
Incorporation of the Surviving Corporation will be identical to the Restated
Certificate of Incorporation of Grande Holdings, except that the Articles of
Incorporation of the Surviving Corporation will reflect that Rio Holdings is
incorporated in the State of Nevada and that the name of the corporation is “Rio
Holdings, Inc.”
(b)
The Bylaws of the Surviving Corporation will
be identical to the Bylaws of Grande Holdings, except that the Bylaws of the
Surviving Corporation will reflect that Rio Holdings is incorporated in the
State of Nevada and that the name of the corporation is “Rio Holdings, Inc” and
will eliminate any provisions related to the classification of the board of
directors.
4.02. Directors
and Officers. The directors of Grande Holdings on the
Effective Date shall become the directors of the Surviving Corporation on and
after the Effective Date to serve until the next annual meeting of the Surviving
Corporation or until such time as their successors have been elected and
qualified or their earlier death, resignation or removal in accordance with the
Surviving Corporation’s Articles of Incorporation and Bylaws and the
NRS. The officers of Rio Holdings on the Effective Date shall become
the officers of the Surviving Corporation on and after the Effective Date to
serve until their successors have been duly appointed and qualified or until
their earlier death, resignation or removal in accordance with the Surviving
Corporation’s Articles of Incorporation and Bylaws and the NRS.
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4
4.03. Registered
Agent. Pursuant to the
Delaware General Corporation Law, on the Effective Date, Grande Holdings hereby
names and appoints the Secretary of State of the State of Delaware as registered
agent for Grande Holdings for service of process for the limited purposes set
forth in Section 252(d) therein. Any such process shall be mailed by
the Secretary of State of Delaware to the Surviving Corporation at the following
address:
Rio
Holdings, Inc.
c/o
Xxxxxxx Xxxxxx L.L.P.
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
4.04. Copies of
the Plan of Merger. A copy of this Agreement is on file at Rio
Holdings, Inc., c/o Xxxxxxx Xxxxxx L.L.P., 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000. A copy of this Agreement will be furnished to
any stockholder of Grande Holdings or to any stockholder of the Surviving
Corporation, on written request and without cost.
ARTICLE
V
MISCELLANEOUS
5.01. Further
Assurances and Assignments. Grande Holdings
agrees that when requested by the Surviving Corporation or by its successors or
assigns, Grande Holdings will execute and deliver or cause to be executed and
delivered all instruments necessary to consummate the transaction that is the
subject of this Agreement. Grande Holdings also agrees to take or
cause to be taken any further actions, assignments, or assurances that are
necessary to vest, perfect, and conform title of the Surviving Corporation to
all the rights, privileges, powers and franchises referred to in Article I of
this Agreement, and otherwise necessary to carry out the intent and purposes of
this Agreement.
5.02. Entire
Agreement and Counterparts. This Agreement
and any exhibits attached to and incorporated into this Agreement contain the
entire agreement between the parties with respect to the transaction
contemplated by this Agreement. This Agreement may be executed in any
number of counterparts; however, all counterparts taken together shall be deemed
to constitute one original. The Constituent Companies may rely on fax
signature pages.
5.03. Perfection
of Title. The parties hereto shall do all other acts and
things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
5.04. Controlling
Law. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
Delaware the state in which the principle business activities and the assets of
the Surviving Corporation will be located.
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5.05. Multiple
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
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EXECUTED
as of the 2 day of September, 2009.
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GRANDE COMMUNICATIONS HOLDINGS,
INC., a Delaware corporation
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RIO HOLDINGS, INC., a
Nevada corporation
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Chief
Executive Officer
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Chief
Executive Officer
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Signature
page to Plan of Merger
