1
EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 9, 1997 (this
"Agreement"), among ABC Media, Inc., a New York corporation ("Media"), ABC,
Inc., a New York corporation ("ABC"), Xxxxxx-Xxxxxx, Inc., a Florida
corporation ("KRI"), and KRI Media Acquisition, Inc., a New York corporation
and a wholly owned subsidiary of KRI ("Merger Subsidiary").
WITNESSETH
WHEREAS, pursuant to Section 6.2(d) of that certain Acquisition
Agreement dated as of April 4, 1997 (the "Acquisition Agreement"), by and
between ABC and KRI, KRI created a wholly owned subsidiary, Merger Subsidiary,
solely for the purpose of merging with and into Media, a wholly owned
subsidiary of ABC, and which Merger Subsidiary, prior to the Effective Time,
has not engaged in any business activities other than in connection with the
Merger; and
WHEREAS, the Boards of Directors of Media and Merger Subsidiary have
each determined that the Merger (as defined in Section 1.1 hereof) is
consistent with, and in furtherance of, their respective business strategies
and goals and have each approved the Merger upon the terms and conditions set
forth herein; and
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall constitute a tax-free reorganization under Sections 368(a)(1)(A)
and (a)(2)(E) and Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended (the "Code"); and
WHEREAS, Media was incorporated on May 9, 1972 (under its original
name, "Belleville News-Democrat, Inc.") pursuant to the Business Corporation
Law of the State of New York ("New York Law"). Merger Subsidiary was
incorporated on May 6, 1997 pursuant to New York Law; and
WHEREAS, Media has outstanding 1200 shares of voting common stock, par
value $.01 per share; and
WHEREAS, Merger Subsidiary has outstanding 10 shares of voting common
stock, par value $.01 per share.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I -- THE MERGER
SECTION 1.1 -- THE MERGER. At the Effective Time (as defined in
Section 1.2 hereof) and subject to and upon the terms and conditions of this
Agreement and New York Law, Merger Subsidiary shall be merged with and into
Media (the "Merger"), the separate corporate existence
1
2
of Merger Subsidiary shall cease, and Media shall continue as the surviving
corporation which shall be a wholly owned subsidiary of KRI. Media as the
surviving corporation after the Merger is herein sometimes referred to as the
"Surviving Corporation" and Merger Subsidiary as the non-surviving corporation
after the Merger is herein sometimes referred to as the "Merged Corporation."
The name of the Surviving Corporation shall be Cypress Media, Inc. ABC, Media,
KRI and Merger Subsidiary are herein referred to collectively as the "Parties"
and each individually as a "Party."
SECTION 1.2 -- EFFECTIVE TIME. The Parties shall cause the Merger to
be consummated by filing a Certificate of Merger with the Secretary of State of
the State of New York with respect to the Merger, in such form as required by,
and executed in accordance with, the relevant provisions of New York Law (the
date and time of such filing or such time as is agreed upon by the Parties and
specified in the Certificate of Merger being the "Effective Time").
SECTION 1.3 -- CERTIFICATE OF INCORPORATION, BYLAWS, DIRECTORS AND
OFFICERS OF SURVIVING CORPORATION. At the Effective Time:
(a) the Certificate of Incorporation of the Surviving Corporation
shall be the Certificate of Incorporation of Media as in effect immediately
prior to the Effective Time, except that the name of the Surviving Corporation
shall be Cypress Media, Inc., until thereafter amended as provided by law, the
Certificate of Incorporation or the Bylaws of such Surviving Corporation; and
(b) the Bylaws of the Surviving Corporation shall be the Bylaws of
Media as in effect immediately prior to the Effective Time, except that the
name of the Surviving Corporation shall be Cypress Media, Inc., until
thereafter amended as provided by law, the Certificate of Incorporation or the
Bylaws of such Surviving Corporation; and
(c) the directors of the Surviving Corporation shall be as follows and
shall serve as directors until their successors are elected or appointed and
qualified or until their resignation or removal:
Xxxxx X. Xxxxxxx
Xxxx Xxxx Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxx Xxxxx
Xxxxx XxXxxxx
Xxxxxxx X. Xxxxxx, Xx.
P. Xxxxxxx Xxxxxx; and
2
3
(d) the officers of the Surviving Corporation shall be as follows and
shall serve in such capacities until their successors are elected or appointed
and qualified or until their resignation or removal:
Name Office
---- ------
P. Xxxxxxx Xxxxxx Chief Executive Officer
Xxxx X. Xxxxxxxx President
Xxxx Xxxxx Senior Vice President/Finance and Chief
Financial Officer
Xxxxx XxXxxxx Senior Vice President/Operations
Xxxx Xxxx Xxxxxxx Senior Vice President/Human Resources
Xxxxxxx X. Xxxxxx Secretary
ARTICLE II -- EFFECT ON STOCK OF THE SURVIVING
CORPORATION AND THE MERGED CORPORATION
SECTION 2.1 -- CONVERSION OF SECURITIES. The manner and basis of
converting the shares of common stock of the Surviving Corporation and of the
Merged Corporation at the Effective Time, by virtue of the Merger and without
any action on the part of any of the Parties or the holder of any of such
securities, shall be as hereinafter set forth in this Article II.
SECTION 2.2 -- CONVERSION OF SHARES. At the Effective Time, each share
of common stock, par value $.01 per share, of Media ("Media Common Stock")
issued and outstanding immediately prior to the Effective Time, and all rights
in respect thereof, shall, by virtue of the Merger and without any action on
the part of ABC, forthwith cease to exist and be converted into and become
exchangeable solely for 1,754,930 shares of Series B Preferred Stock, par value
$1.00 per share, of KRI (the "Series B Preferred Stock"). At the Effective
Time, upon delivery by ABC of stock certificates representing all of the
outstanding shares of Media common stock, duly endorsed or accompanied by duly
executed stock powers in blank, KRI will issue to ABC the shares of Series B
Preferred Stock contemplated by this Section 2.2.
SECTION 2.3 -- CONVERSION OF COMMON STOCK OF THE MERGED CORPORATION
INTO COMMON STOCK OF THE SURVIVING CORPORATION. At the Effective Time, each
share of common stock, par value $.01 per share, of Merger Subsidiary (the
"Merger Subsidiary Common Stock"), issued and outstanding immediately prior to
the Effective Time, and all rights in respect thereof, shall, by virtue of the
Merger and without any action on the part of KRI, forthwith cease to exist and
be
3
4
converted into and thereafter represent one validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation, par value
$.01 per share (the "Surviving Corporation Common Stock").
ARTICLE III -- SURVIVAL OF THE ACQUISITION AGREEMENT
SECTION 3.1 -- EXEMPT ACTS. The execution and performance of this
Agreement shall be "Exempt Acts" within the meaning of Section 7.9 of the
Acquisition Agreement.
SECTION 3.2 -- PROVISIONS OF THE ACQUISITION AGREEMENT.
Notwithstanding anything herein to the contrary, all of the provisions of the
Acquisition Agreement shall remain in full force and effect, except that to the
extent applicable each of the representations and warranties of ABC and KRI
shall be deemed to cover the transactions contemplated by this Agreement.
ARTICLE IV -- MISCELLANEOUS
SECTION 4.1 -- COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
SECTION 4.2 -- GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to any applicable principles of conflicts of law.
4
5
IN WITNESS WHEREOF, Media, ABC, KRI and Merger Subsidiary have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
ABC MEDIA, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
KRI MEDIA ACQUISITION, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxx
Vice President and General Counsel
ABC, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
XXXXXX-XXXXXX, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxxx X. Xxxxxxx
Vice President and General Counsel
5
