1
EXHIBIT 2.5
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement"),
dated as of June 6, 1997, is entered into by and between VIASYSTEMS, INC., a
Delaware corporation (the "Company") and CHIPS ACQUISITION, INC., a Delaware
Corporation ("Chips").
RECITALS:
WHEREAS, the Company and Chips deem it advisable and to the
advantage of such entities that Chips merge with and into the Company (the
"Merger") upon the terms and conditions herein provided in a transaction
intended to qualify as a "reorganization" within the meaning of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, immediately prior to the Merger, Viasystems Group,
Inc. ("Group") will be the sole stockholder of each of the Company and Chips.
NOW, THEREFORE, the parties do hereby adopt this Merger
Agreement and do hereby agree that Chips 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, Chips shall be merged with and into the
Company at the Effective Time (as hereinafter defined), with the Company
surviving the Merger (the "Surviving Corporation"). At the Effective Time, the
separate existence of Chips 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 Chips 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
2
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").
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").
(b) From and after the Effective Time, the Certificate of
Incorporation of the Company (the "Certificate of Incorporation") shall be the
Certificate of Incorporation of the Surviving Corporation until duly amended in
accordance with the terms thereof and the DGCL.
(c) 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.
(d) 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
CAPITAL STOCK
2.1 Cancellation of Chips Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of the stockholder of
Chips, all of the capital stock of Chips shall be cancelled with no
consideration being delivered in connection with the cancellation thereof.
2.2 Capital Stock of the Company. Each share of the Company's
capital stock outstanding as of the Effective Time, shall remain outstanding as
one share of identical capital stock of the Surviving Corporation and otherwise
shall be unaffected by the Merger.
3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Chips. Chips represents and
warrants to the Company as follows:
(a) Organization and Existence. Chips is a duly
organized and validly existing corporation under the laws of the State of
Delaware and has all requisite corporate power and authority to own its assets
and to carry on its business as now being conducted and to consummate the
transactions contemplated by this Merger Agreement.
(b) Capitalization of Chips. The sole stockholder of
Chips is Group. There are no outstanding options, warrants, calls,
subscriptions, claims or other rights, agreements or commitments obligating
Chips to issue any additional capital stock or any other securities convertible
into, exchangeable for or evidencing the right to subscribe for any shares of
the Capital Stock of Chips.
(c) Authority. Chips has all requisite Corporate 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 corporate action on the part of
Chips, and this Merger Agreement has been duly executed and delivered by Chips.
This Merger Agreement has been duly and validly executed and delivered by Chips
and constitutes the legal, valid and binding obligation of Chips, enforceable
against Chips 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 Chips 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 of Chips or the
Bylaws of Chips, (ii) any provision of any law, rule or regulation applicable
to Chips, (iii) any order, judgment or decree of any court or other agency
applicable to Chips, (b) violate, result in a breach of or constitute a default
under any term of any material mortgage, indenture, contract or agreement to
which Chips is a party or by which it or any of its respective properties is
bound, or (c) result in the creation of any 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
3
4
relating to the extension of credit or the borrowing of money ("Encumbrances")
on any of the properties or assets of Chips.
3.2 Representations and Warranties of the Company. The Company
hereby represents and warrants to Chips 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 to 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 1,000 shares of Common Stock, par value $.01 per share
("Common Stock") of which 1,000 shares are issued to Group and are outstanding.
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.
(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 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.
4
5
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 the board of directors
of Chips, or both, notwithstanding approval of this Merger Agreement by Group
in its capacity as the sole stockholder of the Company and Chips (the
"Stockholder").
4.3 Amendment. At any time after obtaining the approval of the
Stockholder, 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
Stockholder), as may be determined in the judgment of the board of directors of
the Company or the board of directors of Chips 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.
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 Tax-Free Reorganization. The Merger is intended to qualify as
a "reorganization" for purposes of Section 368(a)(1)(A) of the Code. The
parties shall file all tax returns consistent with such treatment and shall
comply with the reporting and recordkeeping requirements of Treasury Regulation
section 1.368-3.
5
6
IN WITNESS WHEREOF, this Merger Agreement, having first been
duly approved by the board of directors of the Company, the board of directors
of Chips, and the Stockholder, is hereby executed on behalf of the Company and
Chips by the respective duly authorized officers of both the Company and Chips.
VIASYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CHIPS ACQUISITION, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
6
7
CERTIFICATE OF ASSISTANT SECRETARY
OF
VIASYSTEMS, INC.
The undersigned, Xxxxx X. Xxxxxxx, hereby certifies that he or
she is the duly elected and presently incumbent Assistant Secretary of
Viasystems, 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: June 6, 1997 /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Assistant Secretary
7
8
CERTIFICATE OF ASSISTANT SECRETARY
OF
CHIPS ACQUISITION, INC.
The undersigned, Xxxxx X. Xxxxxxx, hereby certifies that he or
she is the duly elected and presently incumbent Assistant Secretary of Chips
Acquisition, Inc., a Delaware corporation (the "Chips"), 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 Chips, and was duly adopted by the board of directors
of the Chips with approval of the stockholders of the Chips 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: June 6, 1997 /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Assistant Secretary
8
