Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXX ENTERPRISES, INC.,
XXX HOLDINGS, INC.,
CEI-M Corporation
AND
XXX COMMUNICATIONS, INC.
DATED AS OF OCTOBER 19, 2004
ARTICLE I THE TENDER OFFER....................................................................................2
SECTION 1.01 The Tender Offer.............................................................................2
SECTION 1.02 Company Actions..............................................................................4
SECTION 1.03 The Purchase.................................................................................4
SECTION 1.04 Stockholder Lists............................................................................5
ARTICLE II THE MERGER..........................................................................................5
SECTION 2.01 The Merger...................................................................................5
SECTION 2.02 Effective Time; Closing......................................................................5
SECTION 2.03 Effects of the Merger........................................................................6
SECTION 2.04 Certificate of Incorporation and Bylaws......................................................6
SECTION 2.05 Directors....................................................................................6
SECTION 2.06 Officers.....................................................................................6
SECTION 2.07 Conversion of Shares.........................................................................6
SECTION 2.08 Short-Form Merger; Stockholders' Meeting Not Required........................................7
SECTION 2.09 Long-Form Merger; Stockholders' Meeting Required.............................................7
ARTICLE III DISSENTING SHARES; PAYMENT FOR SHARES...............................................................8
SECTION 3.01 Dissenting Shares............................................................................8
SECTION 3.02 Exchange of Certificates and Cash............................................................9
SECTION 3.03 Stock Transfer Books........................................................................11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................................................11
SECTION 4.01 Corporate Organization......................................................................11
SECTION 4.02 Capitalization..............................................................................11
SECTION 4.03 Authority Relative to this Agreement........................................................12
SECTION 4.04 No Conflict; Required Filings and Consents..................................................12
SECTION 4.05 SEC Filings and Financial Statements..................... ................................13
SECTION 4.06 Absence of Certain Changes or Events........................................................13
SECTION 4.07 No Undisclosed Liabilities..................................................................14
SECTION 4.08 Opinion of Financial Advisor................................................................14
SECTION 4.09 Board Approval..............................................................................14
SECTION 4.10 Brokers.....................................................................................14
SECTION 4.11 Financing.................................................. ................................14
SECTION 4.12 Vote Required...............................................................................15
ARTICLE V REPRESENTATIONS AND WARRANTIES OF..................................................................15
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PARENT, PURCHASER AND MERGER SUB................................................................................15
SECTION 5.01 Corporate Organization......................................................................15
SECTION 5.02 Authority Relative to this Agreement........................................................15
SECTION 5.03 No Conflict; Required Filings and Consents..................................................15
SECTION 5.04 Brokers.....................................................................................16
SECTION 5.05 Financing...................................................................................16
SECTION 5.06 No Material Transactions....................................................................17
SECTION 5.07 Subsidiaries................................................................................17
ARTICLE VI COVENANTS AND OTHER AGREEMENTS.....................................................................17
SECTION 6.01 Conduct of Business of the Company..........................................................17
SECTION 6.02 Notification of Certain Matters.............................................................17
SECTION 6.03 Indemnification; Directors, and Officers, Insurance.........................................18
SECTION 6.04 Access and Information......................................................................20
SECTION 6.05 Publicity...................................................................................20
SECTION 6.06 Reasonable Best Efforts.....................................................................20
SECTION 6.07 Cancellation of Vested Stock Options........................................................20
SECTION 6.08 Purchaser Compliance........................................................................21
SECTION 6.09 Financing...................................................................................21
SECTION 6.10 Litigation..................................................................................22
SECTION 6.11 No New Offers...............................................................................22
SECTION 6.12 DGCL 203 Restrictions.......................................................................22
SECTION 6.13 Restricted Stock............................................................................22
ARTICLE VII CONDITIONS.........................................................................................22
SECTION 7.01 Conditions to Obligation of Each Party to Effect the Merger.................................22
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER.................................................................23
SECTION 8.01 Termination.................................................................................23
SECTION 8.02 Effect of Termination.......................................................................24
SECTION 8.03 Amendment...................................................................................24
SECTION 8.04 Extension and Waiver........................................................................24
ARTICLE IX MISCELLANEOUS......................................................................................25
SECTION 9.01 Non-Survival of Representations, Warranties and Agreements..................................25
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SECTION 9.02 Fees and Expenses...........................................................................25
SECTION 9.03 Notices.....................................................................................25
SECTION 9.04 Governing Law...............................................................................26
SECTION 9.05 Entire Agreement; Assignment................................................................27
SECTION 9.06 Severability................................................................................27
SECTION 9.07 Headings....................................................................................27
SECTION 9.08 Parties In Interest.........................................................................27
SECTION 9.09 Specific Performance........................................................................28
SECTION 9.10 Counterparts................................................................................28
SECTION 9.11 Waiver of Jury Trial........................................................................28
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
October 19, 2004, is entered into by and among Xxx Enterprises, Inc., a Delaware
corporation ("Parent"), Xxx Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Purchaser"), CEI-M Corporation, a Delaware
corporation and a wholly-owned subsidiary of Purchaser ("Merger Sub"), and Xxx
Communications, Inc., a Delaware corporation (the "Company").
WHEREAS, Purchaser beneficially owns 25,696,470 shares of the Class C
Common Stock, par value $1.00 per share, of the Company (the "Class C Stock"),
and 340,710,646 shares of the Class A Common Stock, par value $1.00 per share,
of the Company (the "Class A Stock"), and Cox DNS, Inc., a Delaware corporation
and a wholly-owned subsidiary of Parent ("DNS"), owns 1,901,322 shares of Class
C Stock and 24,980,530 shares of Class A Stock, which together with the Class C
Stock and Class A Stock owned by Purchaser, in the aggregate, represents
approximately 62.05% of the outstanding shares of common stock of the Company
and 72.74% of the voting power in the Company;
WHEREAS, subject to the terms and conditions provided herein, Purchaser
and the Company hereby agree to commence a joint tender offer (the "Offer") to
acquire up to 100% of the issued and outstanding shares of Class A Stock (the
"Shares") not otherwise owned by Purchaser and DNS for an amount equal to $34.75
per Share (such amount being hereinafter referred to as the "Offer Price"), net
to the stockholders who tender their Shares, in cash;
WHEREAS, subject to the terms and conditions provided herein, upon the
purchase of Shares pursuant to the Offer, Parent intends to cause all shares of
capital stock of the Company owned by Purchaser and DNS to be transferred to
Merger Sub immediately prior to the Effective Time (as defined in Section 2.02
herein) and to merge Merger Sub with and into the Company pursuant to Delaware
General Corporation Law ("DGCL") Section 251 or Section 253, as applicable (the
"Merger");
WHEREAS, the Board of Directors of the Company, based on the
recommendation of the special committee of independent directors of the Board of
Directors of the Company (the "Special Committee"), has (i) determined that each
of the Offer and the Merger (as hereinafter defined), is advisable, fair to and
in the best interests of the stockholders of the Company (other than Parent and
its subsidiaries), (ii) resolved to approve and adopt this Agreement and the
transactions contemplated hereby, (iii) resolved to recommend acceptance of the
Offer and approval and adoption of this Agreement and the Merger by such
stockholders of the Company, subject to the terms and conditions set forth
herein, (iv) approved the transactions contemplated by this Agreement as an
exception to the Business Combination provisions of the Company's Certificate of
Incorporation, as amended to the date hereof (the "Company Charter") and (v)
taken all necessary action to render the restrictions in Section 203 of the DGCL
inapplicable to this Agreement, the transactions contemplated by this Agreement,
Parent, Purchaser, DNS and Merger Sub.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, Parent, Purchaser, Merger Sub and the Company hereby agree as
follows:
ARTICLE I
THE TENDER OFFER
SECTION 1.01. The Tender Offer.
(a) Subject to the provisions of this Agreement, the
Company and Purchaser will commence the Offer, as promptly as practicable (but
in no event earlier than November 1, 2004) after the public announcement (on the
date hereof or the following business day) of the execution of this Agreement.
(b) The Offer shall expire at 12:00 midnight, New York
City Time, twenty (20) business days following the commencement of the Offer
(the "Initial Expiration Date" and together with any extension permitted
hereunder, the "Expiration Date"), unless this Agreement is earlier terminated
in accordance with Section 8.01 hereof.
(c) The obligation of Purchaser and the Company to
commence the Offer and to accept for payment and pay for Shares tendered
pursuant to the Offer shall be subject only to (i) the non-waivable condition
that pursuant to the Offer, there shall have been validly tendered and not
withdrawn before the Offer expires the number of Shares which constitutes at
least a majority of the outstanding Shares not beneficially owned by Parent,
Purchaser or DNS or their respective affiliates or the directors and executive
officers of the Company immediately prior to the expiration of the Offer (the
"MOM Condition") and (ii) the other conditions set forth in Exhibit 1.01(c)
hereto, any of which conditions, except for the MOM Condition and condition (e)
on Exhibit 1.01(c), may be waived exclusively by Purchaser, for itself and on
behalf of the Company (which waiver shall be binding on the Company), in
Purchaser's sole discretion. Purchaser expressly reserves the right to amend or
make changes to the terms and conditions of the Offer; provided, however, that,
without the prior written consent of the Company (expressed in a resolution
adopted by both the Special Committee and the Company's Board of Directors),
Purchaser shall not do any of the following: (i) decrease the Offer Price or
change the form of consideration to be paid in the Offer, (ii) impose any
conditions to the Offer other than the conditions set forth in Exhibit 1.01(c)
hereto, (iii) otherwise amend the Offer in a manner that would materially and
adversely affect the holders of Shares, (iv) amend or waive the MOM Condition or
condition (e) on Exhibit 1.01(c) and (v) decrease the number of Shares to be
purchased by Purchaser pursuant to the Offer. Notwithstanding anything in this
Agreement to the contrary, without the consent of the Special Committee,
Purchaser shall have the right to extend the Offer on behalf of Purchaser and
the Company beyond the Initial Expiration Date for any of the following events:
(i) from time to time if, at the Initial Expiration Date (or extended Expiration
Date of the Offer, if applicable), any of the conditions to the Offer, including
without limitation, the MOM Condition, shall not have been satisfied or, if
permissible, waived; (ii) for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the "SEC")
or the staff thereof applicable to the Offer or any period required by
applicable law; or (iii) if Shares have been accepted for payment but the number
of
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Shares collectively owned by Parent, Purchaser and Merger Sub is less than 90%
of the then outstanding Shares, for an aggregate period of not more than 15
business days (for all such extensions) (each a "Subsequent Period") beyond the
date on which Shares are first accepted for payment as a "subsequent offering
period" (as such term is defined in Rule 14d-1(g)(8) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") in accordance with Rule
14d-11 of the Exchange Act. In the event that all of the conditions to the Offer
have not been satisfied or waived at the then scheduled expiration date of the
Offer, at the request of the Special Committee, Purchaser shall, and Parent
shall cause Purchaser to, extend the expiration date of the Offer in such
increments as Purchaser may determine until the earliest to occur of (i) the
satisfaction or waiver of such conditions, (ii) termination of this Agreement in
accordance with its terms, and (iii) the determination that such conditions are
not reasonably capable of being satisfied. To the extent Purchaser amends or
makes changes to the conditions of the Offer pursuant to the terms and
conditions of this Section 1.01(c), the Company will cooperate with Parent and
Purchaser in making any filings or amendments required by the DGCL, the Exchange
Act, the Securities Act of 1933, as amended (the "Securities Act") or any other
federal securities law, regulation or rule, or as otherwise may be necessary to
effect such amendment or change.
(d) As soon as reasonably practicable on the date the
Offer is commenced, (i) Parent, Purchaser and the Company shall file with the
SEC a single, joint Tender Offer Statement on Schedule TO (together with all
amendments thereto, the "Schedule TO") and a Schedule 13E-3 and (ii) the Company
shall file a Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9") with respect to the Offer, each of which will comply in all
material respects with the provisions of all applicable federal securities laws,
and will contain (including as an exhibit) or incorporate by reference the Offer
and forms of the related letter of transmittal and summary advertisement (which
documents, together with any supplements or amendments thereto, are referred to
collectively as the "Offer Documents"). The Company agrees that (A) the Schedule
14D-9 shall not be withdrawn or amended without the prior written consent of
Parent; provided, however, that such recommendation may be withdrawn or modified
by the Special Committee without the prior written consent of Parent to the
extent that the Special Committee determines in good faith, after receiving the
advice of outside counsel, that such recommendation would no longer be
consistent with its fiduciary duties to the Company's stockholders under
applicable law and (B) the Schedule 14D-9, on the date filed with the SEC and on
the date first published, sent or given to the Company's stockholders, will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that no representation is made by the Company with respect to
written information supplied by Parent or Purchaser specifically for inclusion
in the Schedule 14D-9. Each of Parent, Purchaser and the Company agree that the
Schedule TO, Schedule 13E-3 and the Offer Documents, on the date filed with the
SEC and on the date first published, sent or given to the Company's
stockholders, will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation is made by Parent or
Purchaser with respect to written information supplied by the Company
specifically for inclusion in the Schedule TO or the Offer Documents and no
representation is made by the Company with respect to written information
supplied by Parent or Purchaser specifically for inclusion in the Schedule TO or
the Offer Document. Each of Parent, Purchaser and the Company further agrees to
take all steps necessary
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to cause the Offer Documents to be filed with the SEC and to be disseminated to
the Company's stockholders, in each case as and to the extent required by
applicable federal securities laws. Each of Parent, Purchaser and the Company
agrees promptly to correct or supplement any information provided by it for use
in the Offer Documents if and to the extent that it shall have become false and
misleading in any material respect and Parent, Purchaser and the Company further
agree to take all steps necessary to cause the Offer Documents as so corrected
to be filed with the SEC and to be disseminated to the Company's stockholders,
in each case as and to the extent required by applicable federal securities
laws. Parent and its counsel shall be given the opportunity to review the
initial Schedule 14D-9 before it is filed with the SEC. In addition, Parent and
Purchaser on the one hand, and the Company on the other hand, agree to provide
the other and their respective counsel with any comments or other communications
that either party or their counsel may receive from time to time from the SEC or
its staff with respect to the Offer Documents promptly after the receipt of such
comments or other communications.
SECTION 1.02 Company Actions. The Company hereby approves of and
consents to the Offer. The Schedule 14D-9 will set forth, and the Company hereby
represents to Parent, Purchaser and Merger Sub, that (a) each of the Special
Committee and the Board of Directors of the Company (upon the recommendation of
the Special Committee), at meetings duly called and held, has (i) determined
that each of the Offer and the Merger is advisable, fair to and in the best
interests of the Company's stockholders (other than Parent and its
subsidiaries); (ii) approved this Agreement and the transactions contemplated
hereby, including, without limitation the Offer and the Merger; and (iii)
resolved to recommend that the Company's stockholders accept the Offer, tender
their Shares pursuant thereto and approve and adopt this Agreement and the
Merger; provided, however, that such recommendation may be withdrawn or modified
to the extent that the Board of Directors of the Company, based on the
recommendation of the Special Committee, determines in good faith, after
receiving the advice of outside counsel, that such recommendation would no
longer be consistent with its fiduciary duties to the Company's stockholders
under applicable law; (b) the Special Committee has received the written opinion
of Xxxxxxx, Sachs & Co., the financial advisor to the Special Committee
("Xxxxxxx Xxxxx"), dated the date of this Agreement (the "Fairness Opinion") to
the effect that, as of such date, $34.75 per Share in cash to be received by the
stockholders of the Company (other than Parent and its affiliates) pursuant to
the Offer and the Merger is fair from a financial point of view to such
stockholders (it being acknowledged and agreed that the inclusion of the
disclosure set forth in this clause (b) in the Company's Schedule 14D-9 shall be
subject to consent of Xxxxxxx Sachs in accordance with its engagement letter
with the Company); (c) the Special Committee, acting as the "Independent
Directors" for purposes of Article IX of the Company Charter, has approved the
transactions contemplated herein as exceptions to the Business Combination
provisions in Article IX of the Company Charter; and (d) the Board of Directors
of the Company and the Special Committee have taken all necessary action to
render the restrictions in Section 203 of the DGCL inapplicable to this
Agreement, the transactions contemplated by this Agreement, Parent, Purchaser,
DNS and Merger Sub.
SECTION 1.03 The Purchase. Subject to the terms of this Agreement and
the satisfaction or, if permissible, waiver, of all of the conditions to the
Offer, promptly after the expiration of the "initial offering period" (as such
term is defined in Rule 14d-1(g)(4) under the Exchange Act) (the "Initial
Period") and, if applicable, promptly, in accordance with Rule 14d-11 under the
Exchange Act, during any Subsequent Period, (i) Parent will cause Purchaser to
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accept for payment and pay for, in accordance with the terms of the Offer, up to
and including, but not more than 43,165,467 Shares in the aggregate, and (ii)
the Company will accept for payment and pay for, in accordance with the terms of
the Offer, all of the remaining Shares tendered pursuant to the Offer; provided,
however, that if there shall have been validly tendered (and not withdrawn)
pursuant to the Offer prior to 12:00 midnight, New York City Time, on the
expiration of the Initial Period or, if applicable, during any Subsequent
Period, that number of Shares which, when added to the Shares then owned by
Parent, Purchaser and DNS (including, without limitation, any Shares purchased
promptly after the expiration of the Initial Period) would represent 90% or more
of the issued and outstanding Shares at the close of business on the business
day immediately preceding such expiration, Parent, in its sole discretion, may
instead elect to cause Purchaser to accept for payment and pay for all of the
Shares validly tendered pursuant to the Offer and not yet accepted and paid for
rather than have both the Company and Purchaser accept and pay for Shares, in
accordance with the terms of the Offer.
SECTION 1.04 Stockholder Lists. In connection with the Offer, the
Company shall reasonably promptly furnish Purchaser with (i) mailing labels,
security position listings of Shares held in stock depositories and any
available listing or computer file containing the names and addresses of the
record holders of Shares, each as of the most recent practicable date, and (ii)
such additional information, including updated lists of stockholders, mailing
labels and lists of securities positions and such other information and
assistance as Purchaser or its agents may reasonably request in connection with
communicating to the record and beneficial holders of Shares with respect to the
Offer and the Merger.
ARTICLE II
THE MERGER
SECTION 2.01 The Merger.
(a) Subject to the terms and conditions of this
Agreement, Purchaser will, and Parent will cause Purchaser and DNS to each,
contribute all shares of Class A Stock and all shares of Class C Stock owned by
them (including any Shares purchased by Purchaser pursuant to the Offer) to
Merger Sub immediately prior to the Effective Time (as defined in Section 2.02
herein).
(b) Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 2.02 herein), (i) the
Company and Purchaser shall consummate the Merger pursuant to which Merger Sub
shall be merged with and into the Company and the separate corporate existence
of Merger Sub shall thereupon cease, (ii) the Company shall be the successor or
surviving corporation in the Merger (the "Surviving Corporation") and shall
continue to be governed by the laws of the State of Delaware, and (iii) the
separate corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger.
SECTION 2.02 Effective Time; Closing. As soon as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VII, the parties hereto shall cause the
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Merger to be consummated by filing a certificate of merger in the case of a
Long-Form Merger pursuant to Section 2.09 herein, or a certificate of ownership
and merger, in the case of a Short-Form Merger pursuant to Section 2.08 herein,
as applicable (in either case, the "Certificate of Merger") with the Secretary
of State of the State of Delaware and by making any related filings required
under the DGCL in connection with the Merger. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with the Secretary of
State of the State of Delaware or at such later time as is agreed to by the
parties hereto and as is specified in the Certificate of Merger (the "Effective
Time" or the "Closing"). Prior to such filing, a closing shall be held at the
offices of Dow, Xxxxxx & Xxxxxxxxx, PLLC, Xxx Xxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, or such other place as the parties shall agree, for the
purposes of confirming the satisfaction or waiver, as the case may be, of the
conditions set forth in Article VII.
SECTION 2.03 Effects of the Merger. From and after the Effective Time,
the Merger shall have the effects set forth in the DGCL (including, without
limitation, Sections 259, 260 and 261 thereof).
SECTION 2.04 Certificate of Incorporation and Bylaws. At the Effective
Time, the certificate of incorporation and the bylaws of the Company will be
amended in their entireties to read as set forth in Exhibits 2.04(a) (in the
case of the certificate of incorporation) and 2.04(b) (in the case of the
bylaws), and as so amended shall be the certificate of incorporation and bylaws
of the Surviving Corporation, until thereafter amended in accordance with their
respective terms and the DGCL.
SECTION 2.05 Directors. The directors of the Company immediately prior
to the Effective Time shall be the initial directors of the Surviving
Corporation until their respective successors are duly elected or appointed and
qualified in the manner provided in the certificate of incorporation and bylaws
of the Surviving Corporation, or until their earlier death, resignation or
removal, or otherwise as provided by law.
SECTION 2.06 Officers. The officers of the Company immediately prior to
the Effective Time shall be the initial officers of the Surviving Corporation
until their respective successors are duly elected or appointed and qualified in
the manner provided in the certificate of incorporation and bylaws of the
Surviving Corporation, or until their earlier death, resignation or removal, or
otherwise as provided by law.
SECTION 2.07 Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of Parent, Purchaser, Merger Sub
or the Company or any holder of Shares:
(a) Each Share issued and outstanding immediately prior
to the Effective Time (other than Shares to be canceled pursuant to clause (b)
below and any Dissenting Shares (as hereinafter defined)) shall be converted
automatically as of the Effective Time into the right to receive, subject to
compliance with the provisions of Section 3.02 hereof, an amount in cash per
Share equal to the Offer Price (the "Merger Consideration"), without interest.
Each certificate previously evidencing any such share shall, after the Effective
Time, represent only such right to receive, subject to compliance with the
provisions of Section 3.02 hereof, the
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Merger Consideration. The holders of such certificates previously evidencing
such Shares outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such Shares except as otherwise provided herein
or by law.
(b) Each Share and each share of Class C Stock or other
class or series of capital stock (i) held in the treasury of the Company or by
any wholly-owned subsidiary of the Company or (ii) owned by Parent, Purchaser or
Merger Sub, shall automatically be canceled, retired and cease to exist without
any conversion thereof and no payment shall be made with respect thereto.
(c) Each share of common stock, par value $.01 per share,
of Merger Sub outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock of the Surviving Corporation
and shall constitute the only outstanding shares of capital stock of the
Surviving Corporation.
SECTION 2.08 Short-Form Merger; Stockholders' Meeting Not Required. If,
following the purchase of Shares pursuant to the Offer and its expiration on the
Expiration Date and consummation of the completion of the Offer and the
contribution of Shares contemplated by Section 2.01(a), Merger Sub owns in the
aggregate at least 90% of the Shares outstanding, the parties hereto agree to
take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after the satisfaction or waiver of the
conditions to the Merger set forth in Article VII without a meeting of
stockholders of the Company, in accordance with Section 253 of the DGCL (a
"Short-Form Merger").
SECTION 2.09 Long-Form Merger; Stockholders' Meeting Required.
(a) If, following the purchase of Shares pursuant to the
Offer and its expiration on the Expiration Date and consummation of the
completion of the Offer and the contribution of Shares contemplated by Section
2.01(a), Merger Sub owns in the aggregate less than 90% of the Shares
outstanding, the parties hereto agree to take all necessary and appropriate
action to cause the Merger to become effective as soon as practicable after the
satisfaction or waiver of the conditions to the Merger set forth in Article VII,
in accordance with Section 251 of the DGCL (a "Long-Form Merger"). In
furtherance and not in limitation of the foregoing agreement, the Company agrees
that it shall, acting through its Board of Directors in accordance with
applicable law, take the following actions:
(i) duly call, give notice of, convene and hold
a special meeting of its stockholders (the "Special Meeting") as soon
as practicable following the acceptance for payment and purchase of
Shares pursuant to the Offer to consider and vote upon the approval and
adoption of this Agreement and the Merger;
(ii) prepare and file with the SEC a preliminary
proxy statement relating to this Agreement and the Merger and use its
best efforts (A) after consultation with Parent and Purchaser, to
respond promptly to any comments made by the staff of the SEC with
respect to such preliminary proxy statement and cause a definitive
proxy statement (together with any amendments or supplements thereto,
the "Proxy Statement")
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to be mailed to its stockholders at the earliest practicable time, and
(B) to obtain the necessary approvals of this Agreement and the Merger
by its stockholders; and
(iii) include in the Proxy Statement the Fairness
Opinion (subject to consent of Xxxxxxx Xxxxx in accordance with its
engagement letter with the Company), and the recommendations of the
Special Committee and the Company's Board of Directors that the
stockholders of the Company vote in favor of the approval and adoption
of this Agreement and the Merger; provided, however, that such
recommendation may be withdrawn or modified by the Special Committee
without the prior written consent of Parent to the extent that the
Special Committee determines in good faith, after receiving the advice
of outside counsel, that such recommendation would no longer be
consistent with its fiduciary duties to the Company's stockholders
under applicable law.
(b) Parent, Purchaser and Merger Sub will provide the
Company with the information concerning Parent, Purchaser, Merger Sub and their
respective subsidiaries and affiliates required under the Exchange Act to be
included in the Proxy Statement.
(c) Each of Parent, Purchaser, Merger Sub and the Company
covenants and agrees that the information supplied by it for inclusion in the
Proxy Statement or related materials, at the time such Proxy Statement or any
amendments or supplements thereto are filed with the SEC, and at the time of the
first mailing and at the time of the Special Meeting, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading.
(d) If a vote of the stockholders of the Company is
necessary to effect the Merger, Purchaser will vote and Parent will cause DNS to
vote all Shares and shares of Class C Stock owned by them and their subsidiaries
in favor of the approval and adoption of this Agreement and the Merger and will
agree not to dispose of Shares or shares of Class C Stock following the purchase
of Shares in the Offer or to grant voting power to any person or entity prior to
the earlier of the Effective Time or the termination of this Agreement, except
as contemplated by Section 2.01(a).
ARTICLE III
DISSENTING SHARES; PAYMENT FOR SHARES
SECTION 3.01 Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, Shares outstanding immediately prior to the Effective
Time that are held by stockholders (i) who shall have neither voted for approval
and adoption of this Agreement and the Merger nor consented thereto in writing
and (ii) who shall be entitled to and shall have demanded properly in writing
appraisal for such Shares in accordance with Section 262 of the DGCL
("Dissenting Shares"), shall not be converted into the right to receive the
Merger Consideration at or after the Effective Time unless and until the holder
of such Shares fails to perfect, withdraws or otherwise loses such holder's
right to appraisal. If a holder of Dissenting Shares shall withdraw (in
accordance with Section 262(k) of the DGCL) his or her demand for
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such appraisal or shall become ineligible for such appraisal, then, as of the
Effective Time or the occurrence of such event, whichever last occurs, such
holder's Dissenting Shares shall cease to be Dissenting Shares and shall be
converted into the right to receive the Merger Consideration, without interest
thereon in the manner provided in Section 2.07 hereof. The Company or the
Surviving Corporation, as the case may be, shall give Parent (a) prompt notice
of any written demands for appraisal, withdrawals of demands for appraisal and
any other instruments served pursuant to Section 262 of the DGCL and received by
the Company and (b) the opportunity to direct all negotiations and proceedings
with respect to demands for appraisal. The Company shall not, except with the
prior written consent of Parent, make any payment with respect to any demands
for appraisal or offer to settle or settle any such demands.
SECTION 3.02 Exchange of Certificates and Cash.
(a) Exchange Agent. As soon as practicable after the
execution of this Agreement, Parent, Purchaser, Merger Sub and the Company shall
enter into an agreement, subject to the Special Committee's approval (not to be
unreasonably withheld), and which agreement shall not be amended without the
Special Committee's approval (not to be unreasonably withheld), providing for
the matters set forth in this Section 3.02 (the "Exchange Agent Agreement") with
a bank or trust company selected by Parent, subject to the Special Committee's
approval (not to be unreasonably withheld) (the "Exchange Agent"), authorizing
such Exchange Agent to act as Exchange Agent in connection with the Offer and
the Merger. As and when needed, on a timely basis, Parent and the Company shall
deposit or shall cause to be deposited with or for the account of the Exchange
Agent, for the benefit of the holders of Shares (other than Dissenting Shares
and shares to be canceled pursuant to Section 2.07(b) hereof), such funds as are
necessary to pay for the Shares as a result of the Offer, as provided in Section
1.03(a) hereof and as a result of the Merger as provided in Section 2.07(a)
hereof (such cash funds are hereafter referred to as the "Exchange Fund").
(b) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, Parent will instruct the Exchange Agent to
mail to each holder of record of a certificate or certificates that immediately
prior to the Effective Time evidenced outstanding Shares (other than Dissenting
Shares and Shares to be canceled pursuant to Section 2.07(b) hereof (the
"Certificates"), (i) a form letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as Parent may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by Parent, together with a letter of transmittal,
duly executed, and such other customary documents as may be required pursuant to
such instructions (collectively, the "Transmittal Documents"), the holder of
such Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each Share formerly represented by such Certificate, without
any interest thereon, less any required withholding of taxes, and the
Certificate so surrendered shall thereupon be canceled. In the event of a
transfer of ownership of Shares that is not registered in the transfer records
of the Company, the Merger Consideration may be issued and paid in accordance
with this Article III to the transferee of such Shares if the Certificate
evidencing such Shares is presented to the Exchange Agent and is properly
endorsed or otherwise in proper form
9
for transfer. In such event, the signature on the Certificate or any related
stock power must be properly guaranteed and the person requesting payment of the
Merger Consideration must either pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of the
Certificate so surrendered or establish to the Surviving Corporation that such
tax has been paid or is not applicable. The Merger Consideration will be
delivered by the Exchange Agent as promptly as practicable following surrender
of a Certificate and the related Transmittal Documents. Cash payments may be
made by check unless otherwise required by a depositary institution in
connection with the book-entry delivery of securities. No interest will be
payable on such Merger Consideration. Until surrendered in accordance with this
Section 3.02, each Certificate shall be deemed at any time after the Effective
Time to evidence only the right to receive, upon such surrender, the Merger
Consideration for each Share formerly represented by such Certificate. The
Exchange Fund shall not be used for any purpose other than as set forth in this
Article III. Any interest, dividends or other income earned on the investment of
cash held in the Exchange Fund shall be for the account of Parent, or if Parent
shall have directed, the account of the Surviving Corporation. The Merger
Consideration delivered upon surrender of the Certificates in accordance with
the terms hereof shall be deemed to have been paid in full satisfaction of all
rights pertaining to such Shares.
(c) Termination of Exchange Fund. Any portion of the
Exchange Fund (including the proceeds of any investments thereof) which remains
undistributed to the holders of Shares for six months following the Effective
Time shall be delivered by the Exchange Agent to Parent on demand, or at
Parent's direction all or a portion thereof shall be delivered to the Surviving
Corporation. Any holders of Shares who have not theretofore complied with this
Article III shall thereafter look only to Parent and (if Parent shall have
directed that any portion of such Exchange Fund be delivered to the Surviving
Corporation) the Surviving Corporation for payment of the Merger Consideration.
(d) No Liability. None of the Surviving Corporation,
Parent, Purchaser, the Company or the Exchange Agent shall be liable to any
holder of Shares for any cash delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(e) Withholding Rights. The Surviving Corporation and the
Exchange Agent shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of Shares such
amounts as the Surviving Corporation or the Exchange Agent is required to deduct
and withhold with respect to the making of such payment under the United States
Internal Revenue Code of 1986, as amended (the "Code"), or any provision of
state, local or foreign tax law. To the extent that amounts are so withheld by
the Surviving Corporation or the Exchange Agent, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
the Shares in respect of which such deduction and withholding was made by the
Surviving Corporation or the Exchange Agent.
(f) Lost, Stolen or Destroyed Certificates. In the event
any Certificates evidencing Shares shall have been lost, stolen or destroyed,
the holder of such lost, stolen or destroyed Certificate(s) shall execute an
affidavit of that fact upon request. The holder of any such lost, stolen or
destroyed Certificate(s) shall also deliver a reasonable indemnity against any
claim that may be made against Parent, Purchaser, the Surviving Corporation or
the Exchange Agent with respect to the Certificate(s) alleged to have been lost,
stolen or destroyed. The
10
affidavit and any indemnity which may be required hereunder shall be delivered
to the Exchange Agent, who shall be responsible for making payment for such
lost, stolen or destroyed Certificates(s) pursuant to the terms hereof.
SECTION 3.03 Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed, and there shall be no further
registration of transfers of Shares thereafter on the records of the Company.
From and after the Effective Time, the holders of Certificates representing
Shares shall cease to have any rights with respect to such Shares, except as
provided in this Agreement or by applicable law. Any Certificates presented to
the Exchange Agent or the Surviving Corporation for any reason at or after the
Effective Time shall be canceled and exchanged for the Merger Consideration
pursuant to the terms in this Article III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC Reports (defined in Section 4.05 hereof)
filed prior to the date hereof or as otherwise known by Parent, the Company
hereby represents and warrants to Parent and Purchaser as follows:
SECTION 4.01 Corporate Organization. The Company and each of its
subsidiaries is a corporation, partnership or other legal entity duly
incorporated or organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization and has the requisite
power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being
conducted, except where such failures to be so organized, existing and in good
standing, individually or in the aggregate, have not had or would not reasonably
be expected to have a material adverse effect on the business, assets, results
of operations or financial condition of the Company and its subsidiaries, taken
as a whole (a "Company Material Adverse Effect"). The Company and each of its
subsidiaries is duly qualified or licensed and in good standing to do business
in each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification or
licensing necessary, except for such failures to be so qualified or licensed and
in good standing that, individually or in the aggregate, have not had, or would
not reasonably be expected to have a Company Material Adverse Effect.
SECTION 4.02 Capitalization.
(a) The authorized capital stock of the Company consists
of 671,000,000 shares of Class A Stock, 62,000,000 shares of Class C Stock and
10,000,000 shares of preferred stock. As of October 15, 2004, there were (i)
606,315,174 Shares and 27,597,792 shares of Class C Stock issued and
outstanding, all of which are validly issued, fully paid and nonassessable, (ii)
5,532,505 shares of Class A Stock held in the Company's treasury, (iii) no
shares of preferred stock issued or outstanding and (iv) 18,670,467 stock
options outstanding, and since such date, no Shares, Class C shares or Preferred
shares have been issued other than Shares issued pursuant to options which were
outstanding as of such date.
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(b) Except as set forth in this Section 4.02, and except
for this Agreement and the transactions contemplated hereby, there are not now,
and at the Effective Time there will not be, any shares of capital stock of the
Company issued or outstanding or any subscriptions, options, warrants, calls,
rights, convertible or exchangeable securities or other agreements, commitments
or rights of any character relating to issued or unissued capital stock or other
securities of the Company, or otherwise obligating the Company to issue,
transfer or sell, or cause to be issued, transferred or sold, or to make any
payments in respect of, shares of capital stock or other securities of the
Company.
(c) Except for this Agreement and the transactions
contemplated hereby, there are not now, and at the Effective Time there will not
be, any voting trusts or other agreements or understandings to which the Company
is a party or is bound with respect to the voting of capital stock of the
Company.
SECTION 4.03 Authority Relative to this Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby have
been duly authorized by the Board of Directors of the Company and the Special
Committee and no other corporate proceedings on the part of the Company are
necessary to authorize the execution, delivery and performance by the Company of
this Agreement or the consummation by the Company of the transactions
contemplated hereby (other than, with respect to the Long-Form Merger, the
approval of this Agreement and the Merger by the stockholders of the Company and
the filing of the Certificate of Merger as required by the DGCL). This Agreement
has been duly and validly executed and delivered by the Company and, assuming
the due authorization, execution and delivery by each of Parent, Purchaser and
Merger Sub, constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
SECTION 4.04 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement and the consummation of
the transactions contemplated hereby will not, (i) conflict with or violate the
Company Charter or its Bylaws (the "Bylaws"), or the certificate of
incorporation, bylaws or other equivalent organizational documents of any of its
subsidiaries or (ii) conflict with or violate any federal, state or local
statute, law, rule, regulation, ordinance, code, order, judgment, decree or any
other requirement or rule of law applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected, or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, result in the loss of a material benefit under or
give to others any right of termination, amendment, acceleration, increased
payment or cancellation of, or result in the creation of a lien or other
encumbrance on any property or contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their properties or assets is bound or affected, except in the case of
clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences which would not, individually or in the aggregate, have or
reasonably be
12
expected to have a Company Material Adverse Effect or prevent or materially
delay the performance by the Company of any of its obligations under this
Agreement or the consummation of any of the transactions contemplated hereby.
(b) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement and the consummation of
the Offer, the Merger and the other transactions contemplated hereby by the
Company will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign (each a "Governmental Entity"), except (i) for (A) any
applicable requirements of the Exchange Act or the Securities Act, (B) the
filing of appropriate merger and similar documents as required by the DGCL, the
Merger and the transactions contemplated hereby, and (C) the approvals from
franchising authorities or other regulatory agencies set forth on Schedule
4.04(b) (the "Governmental Approvals") and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate, have or reasonably
be expected to have a Company Material Adverse Effect or prevent or materially
delay the performance by the Company of any of its obligations under this
Agreement or the consummation of any of the transactions contemplated hereby.
SECTION 4.05 SEC Filings and Financial Statements. The Company has
heretofore filed (or, with respect to forms, reports, statements, schedules and
other materials required to be filed after the date hereof, will file) all
forms, reports, statements, schedules and other materials with the SEC required
to be filed pursuant to the Exchange Act or other federal securities laws since
October 1, 2001 (the "SEC Reports"). As of their respective dates, the SEC
Reports (including, without limitation, all financial statements included
therein, exhibits and schedules thereto and documents incorporated by reference
therein) complied in all material respects with all applicable requirements of
the Exchange Act and other federal securities laws and to the best knowledge of
the Company, did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which they
were made, not misleading. The financial statements of the Company (the "2003
Financial Statements") included in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2003 (including the related notes thereto)
and the Company's Quarterly Reports on Form 10-Q for the periods ended March 31,
2004 and June 30, 2004 (including the related notes thereto) have been prepared
from, and are in accordance with, the books and records of the Company and its
subsidiaries, comply in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto and subject,
in the case of unaudited interim financial statements, to normal year-end
adjustments) and fairly present in all material respects the consolidated
financial position and the consolidated results of operations and cash flows of
the Company and its consolidated subsidiaries as at the dates thereof or for the
periods presented therein.
SECTION 4.06 Absence of Certain Changes or Events. Since December 31,
2003, neither the Company nor any of its subsidiaries has (a) conducted its
business other than in the ordinary and usual course of business consistent with
past practice or (b) suffered any change in
13
its business, financial condition, results of operations, assets or liabilities
which, individually or in the aggregate, has had or would reasonably be expected
to have, a Company Material Adverse Effect, other than any change or effect
relating to general economic conditions or generally affecting the industries in
which the Company operates which are not disproportionate to the Company and
other than any change or effect attributable to the execution, announcement
and/or performance of this Agreement.
SECTION 4.07 No Undisclosed Liabilities. Except (a) for liabilities
incurred by the Company or its subsidiaries in the ordinary course of business
consistent with past practice and (b) for liabilities incurred in connection
with the transactions contemplated by this Agreement, neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations (whether
absolute, accrued, contingent or otherwise) which, individually or in the
aggregate, has had or would reasonably be expected to have a Company Material
Adverse Effect.
SECTION 4.08 Opinion of Financial Advisor. The Special Committee has
received the written opinion of Xxxxxxx Xxxxx, dated the date hereof, to the
effect that, as of such date, $34.75 per Share in cash to be received by the
stockholders of the Company (other than Parent and its affiliates) pursuant to
the Offer and the Merger is fair from a financial point of view to such
stockholders.
SECTION 4.09 Board Approval. The Board of Directors of the Company,
based on the recommendation of the Special Committee, at a meeting duly called
and held and at which a quorum was present and voting, (a) determined that this
Agreement, the Offer and the Merger are advisable, fair to and in the best
interests of the Company's stockholders (other than Parent and its
subsidiaries), (b) approved this Agreement, the Offer, the Merger and the other
transactions contemplated hereby, and (c) resolved to recommend acceptance of
the Offer and approval and adoption of this Agreement by the Company's
stockholders (if such approval and adoption by the Company's stockholders is
required by law in order to effectuate the Merger). The Special Committee
constitutes the "Independent Directors" as provided in Article IX of the Company
Charter and has approved the transactions contemplated herein, including the
Offer and the Merger, as an exception to the Business Combination provision
under Article IX of the Company Charter. The Board of Directors of the Company
and the Special Committee have taken all necessary action to render the
restrictions in Section 203 of the DGCL inapplicable to this Agreement, the
transactions contemplated by this Agreement, Parent, Purchaser, DNS and Merger
Sub.
SECTION 4.10 Brokers. No broker, finder or investment banker (other
than Xxxxxxx Sachs) is entitled to any brokerage, finder's or other fee or
commission in connection with this Agreement, the Offer, the Merger and the
other transactions contemplated hereby based upon arrangements made by or on
behalf of the Company. The Company has heretofore furnished to Parent a complete
and correct copy of all agreements between the Company and Xxxxxxx Xxxxx
pursuant to which such firm would be entitled to any payment relating to the
transactions contemplated hereby.
SECTION 4.11 Financing. The Company has received from Parent, and
provided to the Special Committee, a copy of a fully executed commitment letter
from Citicorp North America, Inc., Citigroup Global Markets Inc., Xxxxxx
Commercial Paper Inc., Xxxxxx Brothers Inc.,
14
JPMorgan Chase Bank and X.X. Xxxxxx Securities Inc. (the "Lenders") dated August
23, 2004, as amended, providing for financing necessary for Purchaser and the
Company to consummate the transactions contemplated by the Offer and Merger (the
"Commitment Letter").
SECTION 4.12 Vote Required. If the conditions of Section 2.08 are not
met, no vote of the Company stockholders is required to effect the Long-Form
Merger other than a vote of the holders of the outstanding shares of Class A and
Class C Stock, voting together as a single class with each share of Class A
stock being entitled to one vote and each share of Class C stock being entitled
to ten votes, with such vote to be taken at the Special Meeting held pursuant to
Section 2.09(a)(i) hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
PARENT, PURCHASER AND MERGER SUB
Parent, Purchaser and Merger Sub hereby jointly and severally represent
and warrant to the Company as follows:
SECTION 5.01 Corporate Organization. Each of Parent, Purchaser and
Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
SECTION 5.02 Authority Relative to this Agreement. Each of Parent,
Purchaser and Merger Sub has all necessary corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent, Purchaser and Merger Sub and the consummation by each
of them of the transactions contemplated hereby have been duly and validly
authorized by the Boards of Directors of Parent, Purchaser and Merger Sub, and
by Parent as the sole stockholder of Purchaser, and by Purchaser as the sole
stockholder of Merger Sub, and no other corporate proceedings on the part of
Parent, Purchaser or Merger Sub are necessary to authorize the execution,
delivery and performance of this Agreement by Parent, Purchaser or Merger Sub or
the consummation by Parent, Purchaser or Merger Sub of the transactions
contemplated hereby (other than the filing of the Certificate of Merger as
required by the DGCL). This Agreement has been duly and validly executed and
delivered by each of Parent, Purchaser and Merger Sub and, assuming the due
authorization, execution and delivery by the Company, constitutes a valid and
binding obligation of each of Parent, Purchaser and Merger Sub, enforceable
against each of Parent, Purchaser and Merger Sub in accordance with its terms.
SECTION 5.03 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by
Parent, Purchaser and Merger Sub do not, and the performance of this Agreement
and the consummation of the transactions contemplated hereby will not, (i)
conflict with or violate the certificate of incorporation or bylaws of Parent,
Purchaser or Merger Sub, (ii) conflict with or violate any federal, state or
local statute, law, rule, regulation, ordinance, code, order, judgment, decree
or
15
any other requirement or rule of law applicable to any of Parent, Purchaser or
Merger Sub or by which any of their properties or assets are bound or affected,
or (iii) result in any breach of or constitute a default (or an event which,
with notice, lapse of time or both, would become a default) under, result in the
loss of a material benefit under or give to others any right of termination,
amendment, acceleration, increased payments or cancellation of, or result in the
creation of a lien or other encumbrance on any property or contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which any
of Parent, Purchaser or Merger Sub is a party or by which any of Parent,
Purchaser or Merger Sub or any of their properties or assets is bound or
affected, except in the case of clauses (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences which would not, or would
not reasonably be expected to, individually or in the aggregate, prevent or
materially delay the performance by Parent, Purchaser or Merger Sub of any of
their respective obligations under this Agreement or the consummation of any of
the transactions contemplated hereby (a "Parent Material Adverse Effect").
(b) The execution and delivery of this Agreement by
Parent, Purchaser and Merger Sub do not, and the performance of this Agreement
and the consummation of the Offer, the Merger and the other transactions
contemplated hereby by Parent, Purchaser and Merger Sub will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity, except (i) for (A) any applicable requirements, if
any, of the Exchange Act or the Securities Act, (B) filing of appropriate merger
and similar documents as required by the DGCL, and (C) the Governmental
Approvals and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not,
individually or in the aggregate, have or reasonably be expected to have a
Parent Material Adverse Effect.
SECTION 5.04 Brokers. No broker, finder or investment banker (other
than Citigroup and Xxxxxx Brothers) is entitled to any brokerage, finder's or
other fee or commission in connection with this Agreement, the Offer, the Merger
and the other transactions contemplated hereby based upon arrangements made by
or on behalf of Parent, Purchaser or Merger Sub.
SECTION 5.05 Financing. Parent has received, and provided to the
Special Committee, a complete, correct and fully executed copy of the Commitment
Letter providing for the financing necessary for Purchaser and the Company to
consummate the transactions contemplated by the Offer and Merger. The Commitment
Letter is in full force and effect on the date hereof. There are no facts or
circumstances known to Parent that it believes are likely to (i) prevent the
conditions (with respect to Parent) described in the Commitment Letter from
being satisfied, (ii) prevent the Facilities (as defined in the Commitment
Letter) from being consummated pursuant to the terms of the Commitment Letter,
(iii) prevent Parent from receiving financing pursuant to the Facilities or (iv)
make any of the assumptions (with respect to Parent) set forth in the Commitment
Letter unreasonable. The aggregate proceeds contemplated by the Facilities, when
taken together with the available cash of Parent and the Company, are sufficient
to enable Purchaser or Purchaser and the Company, as the case may be, to
purchase Shares pursuant to Section 1.03 hereof and to fund the Merger
Consideration pursuant to Section 2.07 hereof.
16
SECTION 5.06 No Material Transactions. None of Parent, Purchaser or
Merger Sub has commenced negotiations, agreed in principle or executed any
agreement (A) pursuant to which (i) all or any substantial portion of the
material assets or properties of the Company or the Surviving Corporation or
their subsidiaries would be offered, sold, leased, exchanged or otherwise
disposed of, (ii) any material number of shares of capital stock of the Company
or the Surviving Corporation or their subsidiaries would be offered or sold,
(iii) the Company or the Surviving Corporation or their subsidiaries would be
merged, combined or reorganized with another person or entity subsequent to the
Closing, or (B) that would constitute a material change to the Company's
existing long term business plan. Neither Parent nor Purchaser will be required
to make any disclosure in the Schedule TO in response to paragraphs (c)(1) and
(c)(2) of Rule 1006 of Regulation M-A (17 C.F.R. Section 1006) that does not
relate to the transactions contemplated by this Agreement.
SECTION 5.07 Subsidiaries. Each of Purchaser and Merger Sub are direct
or indirect wholly-owned subsidiaries of Parent. Merger Sub was formed
specifically for the transactions contemplated by this Agreement and has
conducted no operations and incurred no obligation other than in connection with
the transactions contemplated by this Agreement and related to the financing.
Prior to the date hereof, Purchaser has had no operations or purpose other than
the ownership of stock in its subsidiaries.
ARTICLE VI
COVENANTS AND OTHER AGREEMENTS
SECTION 6.01 Conduct of Business of the Company. The Company covenants
and agrees that, prior to the Effective Time, unless Parent shall have otherwise
agreed in writing or unless such action shall have been approved by a majority
of the entire Board of Directors of the Company or except as otherwise expressly
contemplated by this Agreement:
(a) The business of the Company and its subsidiaries
shall be conducted only in, and the Company and its subsidiaries shall not take
any action except in, the ordinary and usual course of business consistent with
past practice;
(b) The Company and its subsidiaries shall not make any
material modifications in employee benefit plans, employment or compensation
arrangements;
(c) The Company and its subsidiaries shall not grant any
awards of restricted stock or stock options; and
(d) The Company and its subsidiaries shall use their
commercially reasonable best efforts to keep available the services of their
present officers and key employees and to preserve the good will of those having
business relationships with any of them.
SECTION 6.02 Notification of Certain Matters. The Company shall give
prompt notice to Parent, and Parent shall give prompt notice to the Company, of
the occurrence, or failure to occur, of any event which occurrence or failure to
occur would be likely to cause (a) any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect, or (b) any
material failure of the Company, on the one hand, or Parent, Purchaser or
17
Merger Sub, on the other hand, as the case may be, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it under
this Agreement; provided, however, that no such notification shall affect the
representations or warranties of the parties or the conditions to the
performance by the parties hereunder.
SECTION 6.03 Indemnification; Directors, and Officers, Insurance.
(a) Parent and the Company agree that all rights to
indemnification, advancement of expenses and exculpation now existing in favor
of each individual who, as of the Effective Time, is a present or former
director or officer of the Company or any of its subsidiaries (each, an
"Indemnified Person") as provided in the Company Charter and Bylaws, or in the
certificate or articles of incorporation, bylaws or similar documents of any of
such subsidiaries, in effect as of the date hereof, shall, with respect to
matters occurring prior to the Effective Time, survive the Merger and continue
in full force and effect after the Effective Time. Until the sixth anniversary
of the Effective Date, the certificate of incorporation and bylaws of the
Surviving Corporation and the certificate or articles of incorporation, bylaws
or similar documents of its subsidiaries shall, with respect to matters
occurring prior to the Effective Time, contain provisions no less favorable with
respect to indemnification, advancement of expenses and exculpation of the
Indemnified Persons than are set forth in the Company Charter and Bylaws or in
the certificate or articles of incorporation, bylaws or similar documents of the
Surviving Corporation's subsidiaries in effect as of the date of execution of
this Agreement, and such provisions shall not be amended, repealed or otherwise
modified prior to the sixth anniversary of the Effective Time in any manner that
would materially adversely affect the rights thereunder, as of the Effective
Time, of any Indemnified Person, with respect to matters occurring prior to the
Effective Time. To the maximum extent permitted by law, all such indemnification
of Indemnified Persons with respect to matters occurring before the Effective
Time, shall be mandatory rather than permissive, and the Company or the
Surviving Corporation and their subsidiaries, as the case may be, shall advance
expenses in connection with such indemnification. Parent and the Company further
agree that all rights to indemnification or advancement of expenses now existing
in favor of Indemnified Persons in any indemnification agreement between such
person and the Company or any such subsidiary, as the case may be, or under law
shall survive the Merger and continue in full force and effect in accordance
with the terms of such agreement or law.
(b) From and after the Effective Time, Parent and the
Surviving Corporation shall jointly and severally, to the fullest extent
permitted by applicable law, indemnify, defend and hold harmless each
Indemnified Person against any costs or expenses (including reasonable
attorneys' fees and expenses), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any actual or
threatened claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of, relating to or in
connection with (i) any acts or omissions occurring or alleged to occur prior to
the Effective Time in their capacities as officers or directors of the Company
or any of its subsidiaries or taken by them at the request of the Company or any
of its subsidiaries (including, without limitation, acts or omissions in
connection with such persons serving as an officer, director or other fiduciary
in any entity if such service was at the request or for the benefit of the
Company) or (ii) the adoption and approval of this Agreement, the Offer, the
Merger or the other transactions contemplated by this Agreement or arising out
of or pertaining to the transactions contemplated
18
by this Agreement. Notwithstanding the foregoing, in the event of any
indemnifiable claim (whether or not arising before the Effective Time), (i)
Parent and the Surviving Corporation shall pay the reasonable fees and expenses
of counsel selected by the Indemnified Person seeking indemnification pursuant
to this Section 6.03(b), which counsel shall be reasonably satisfactory to
Parent and the Surviving Corporation, promptly after statements therefor are
received and otherwise advance or reimburse to such directors documented
expenses reasonably incurred, (ii) any determination required to be made with
respect to whether such Indemnified Person's conduct complies with the standards
set forth in the DGCL and any applicable provisions of the Company's Certificate
of Incorporation or Bylaws shall be made by independent counsel mutually
acceptable to Parent, the Surviving Corporation and such Indemnified Persons;
provided, however, that neither Parent nor the Surviving Corporation shall be
liable for any settlement effected without its written consent (which consent
shall not be unreasonably withheld). The Indemnified Persons seeking
indemnification pursuant to this Section 6.03(b) as a group may retain one law
firm with respect to each related matter except to the extent there is, in the
opinion of counsel to an Indemnified Person under applicable standards of
professional conduct, a conflict on any significant issue between positions of
such director and any other director seeking indemnification pursuant to this
Section 6.03(b).
(c) Parent shall or the Surviving Corporation shall
obtain and maintain directors and officers liability insurance policies for the
Indemnified Persons with respect to matters occurring prior to the Effective
Time for a period of six years from the Effective Time on terms with respect to
coverage and amount no less favorable than those of the applicable policies in
effect on the date hereof; provided, however, that in no event shall Parent or
the Surviving Corporation be obligated to expend in order to obtain or maintain
insurance coverage pursuant to this Section 6.03(c) any amount per annum in
excess of 200% of the aggregate premiums currently paid or payable by the
Company in 2004 (on an annualized basis) for such purpose (the "cap"); and
provided further, that if equivalent coverage cannot be obtained, or can be
obtained only by paying an annual premium in excess of the cap, Parent or the
Surviving Company shall only be required to obtain as much coverage as can be
obtained by paying an annual premium equal to the cap.
(d) In the event the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers or conveys all or any substantial
portion of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of the
Surviving Corporation (or their respective successors or assigns) assume the
obligations of the Surviving Corporation (or their respective successors or
assigns) as contemplated by this Section 6.03. The Surviving Corporation and
Parent shall pay all reasonable expenses, including reasonable attorneys' fees,
that may be incurred by any Indemnified Person in enforcing the indemnity and
other obligations provided in this Section 6.03. For the period from the time
when Purchaser or the Company first purchases Shares pursuant to the Offer
through the Effective Time, Parent shall not permit the Company to amend the
provisions in the Company Charter and Bylaws providing for exculpation of
director and officer liability and indemnification of Indemnified Persons. The
provisions of this Section 6.03 shall survive the consummation of the Merger and
expressly are intended to benefit each of the Indemnified Persons.
Notwithstanding anything to the contrary, it is agreed that the rights of an
Indemnified Person under this Section 6.03 shall be in addition to,
19
and not a limitation of any other rights such Indemnified Person may have under
the Company Charter and Bylaws, any other indemnification arrangements, the DGCL
or otherwise and nothing in this Section 6.03 shall have the effect of, or be
construed as having the effect of, reducing the benefits to the Indemnified
Persons under the Company Charter and Bylaws, any other indemnification
arrangements, the DGCL or otherwise with respect to matters occurring prior to
the Effective Time.
SECTION 6.04 Access and Information. The Company shall afford to
Parent, Purchaser and their representatives such access during normal business
hours throughout the period prior to the Effective Time to the Company's books,
records (including, without limitation, tax returns and work papers of the
Company's independent auditors), facilities, personnel and to such other
information as Parent shall reasonably request.
SECTION 6.05 Publicity. None of the Company, Parent, Purchaser or
Merger Sub shall issue or cause the publication of any press release or other
public announcement with respect to this Agreement, the Offer, the Merger or the
other transactions contemplated hereby without prior consultation with the other
parties, except as may be required by law or any listing agreement with a
national securities exchange to which Parent or the Company is a party. Upon
execution of this Agreement, Parent and the Special Committee shall agree upon
the text of a press release to be issued with respect to this Agreement and the
transactions contemplated hereby.
SECTION 6.06 Reasonable Best Efforts. Subject to the terms and
conditions hereof, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
as promptly as practicable the transactions contemplated by the Offer, the
Merger and this Agreement, and to cooperate with each other in connection with
the foregoing, including using its reasonable best efforts to (a) obtain all
necessary waivers, consents and approvals from other parties to material
agreements, leases and other contracts, (b) obtain all necessary consents,
approvals and authorizations as are required to be obtained under any federal,
state or foreign law or regulation, (c) lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the parties
to consummate the transactions contemplated hereby, (d) effect any necessary
registrations and filings and submissions of information requested by
governmental authorities, and (e) fulfill all conditions to this Agreement. In
furtherance of and not in limitation of the foregoing, the Company shall permit
Parent to reasonably participate in the defense and settlement of any claim,
suit or cause of action relating to any takeover proposal, the Offer, the
Merger, this Agreement or the other transactions contemplated hereby, and the
Company shall not settle or compromise any such claim, suit or cause of action
without Parent's prior written consent, which shall not be unreasonably
withheld.
SECTION 6.07 Cancellation of Vested Stock Options. Each employee or
former employee of the Company who, on or prior to the Effective Time, is the
holder of vested stock option rights to purchase Shares shall be offered the
right to receive an amount in cash (the "Option Cash Payment") equal to the
product of (i) the total number of Shares subject to such vested stock options
and (ii) the amount, if any, by which the Merger Consideration exceeds the
exercise price per share of the Shares subject to such vested stock option
rights. The vested
20
stock options rights of any employee or former employee who accepts the offer
specified in this Section 6.07 shall be cancelled upon the payment to any such
employee or former employee of the Option Cash Payment. The right to receive the
Option Cash Payment shall be subject to the prior execution by each employee or
former employee who accepts the offer specified in this Section 6.07 of all
necessary written consents and releases, as determined by Parent in its sole
discretion, to provide for the cancellation of the affected vested stock option
rights.
SECTION 6.08 Purchaser Compliance. Parent shall cause Purchaser and
Merger Sub to comply with all of their obligations under this Agreement.
Subsequent to the Effective Time, Parent shall cause Surviving Corporation to
comply with all of its obligations under this Agreement to be performed
subsequent to the Effective Time.
SECTION 6.09 Financing.
(a) Authority to Negotiate. Parent and the Company agree
that unless and until this Agreement is terminated pursuant to Article 8 hereof,
Parent shall have the authority to negotiate the Facilities on behalf of both
Parent and the Company, and to amend or modify the Commitment Letter and the
terms of the Xxx Communications Credit Facility (as defined in the Commitment
Letter) so long as such amendment or modification does not adversely affect the
likelihood of the Facilities closing, complies with all applicable law and does
not give rise to reasonable concerns regarding the solvency of the Company or
the availability of sufficient surplus to complete the Offer and the Merger;
provided, however, that Parent shall not agree, without the Special Committee's
prior approval, to any amendment or modification to the Xxx Communications
Credit Facility that would commit the Company to pay any fees or expenses or to
any obligations in each case if Shares are not purchased pursuant to the Offer.
(b) Company Financing. The Company agrees to use its
reasonable best efforts to complete the transactions (related to the Company)
contemplated by the Commitment Letter. Without limiting the generality of the
foregoing, the Company agrees to provide reasonable and customary assistance and
information in connection with the syndication and arrangement of the Facilities
as set forth in the eighth and ninth paragraphs of the Commitment Letter and to
undertake the other obligations therein referred to. In furtherance thereof, the
Company agrees that it shall execute and take all actions reasonably necessary
to duly execute and deliver the Xxx Communications Credit Facility and, unless
and until this Agreement is terminated pursuant to Article 8 hereof, it shall
not seek to negotiate, amend, modify, terminate or cancel the Commitment Letter
or the Xxx Communications Credit Facility; provided, however, the Company shall
not be obligated to execute the Xxx Communications Credit Facility or any
amendment or modification thereto if to do so would be a violation of applicable
law or cause the Company to be in violation of applicable law or give rise to
reasonable concerns regarding the solvency of the Company or the availability of
sufficient surplus to complete the Offer and the Merger; and provided further
that Parent shall not agree, without the Special Committee's prior approval, to
any amendment or modification to the Xxx Communications Credit Facility that
would commit the Company to pay any fees or expenses or to any obligations in
each case if Shares are not purchased pursuant to the Offer. The Company will
not knowingly attempt, directly or indirectly, to induce or encourage the
Lenders or other entities not to fund any of the financing contemplated by the
Commitment Letter.
21
(c) Parent Financing. Parent agrees to use its reasonable
best efforts to complete the transactions (related to Parent) contemplated by
the Commitment Letter. Following the date hereof, any amendment, modification,
termination or cancellation of any of the Facilities or any information known to
Parent which makes it unlikely that the Facilities will be obtained on the terms
set forth in the Commitment Letter shall be promptly disclosed to the Special
Committee. Parent will not knowingly attempt, directly or indirectly, to induce
or encourage the Lenders or other entities not to fund any of the financing
contemplated by the Commitment Letter.
SECTION 6.10 Litigation. Neither Parent nor the Company shall take any
action inconsistent with the Memoranda of Understanding regarding the
contemplated dismissals of the Georgia and Delaware stockholder actions if such
action would materially adversely affect the Company or the Special Committee
and each agrees to cooperate in negotiating further agreements consistent with
the Memoranda of Understanding and shall not unreasonably refuse to execute such
agreements. Parent and the Company shall cooperate in the defense of any other
litigation relating to the transactions contemplated by this Agreement and the
Company shall not settle any such litigation without Parent's prior written
consent. Following the Effective Time, any settlement of any such litigation
shall require a full release of the Company, its directors, including the
Committee, and any of their financial and legal advisors.
SECTION 6.11 No New Offers. Each of the Company, Parent, Purchaser and
Merger Sub hereby agree that if the Offer is terminated in accordance with the
terms of this Agreement without the purchase of the Shares thereunder, no such
party or their controlled affiliates will purchase or offer to purchase Shares
for a period of ninety (90) days after the date of such termination without the
consent of the Company (with the approval of the Special Committee). The
inclusion of this Section 6.11 shall in no way relieve any party or other person
of any additional duties, obligations or restrictions that may otherwise be
applicable to the parties with respect to the purchase of Shares.
SECTION 6.12 DGCL 203 Restrictions. If this Agreement is terminated,
each of Parent, Purchaser and Merger Sub agrees that to the extent it was
subject to the restrictions set forth in Section 203 of the DGCL prior to the
approval of this Agreement by the Special Committee, it will, by reason of this
Agreement, voluntarily comply with any such restrictions to the extent such
restrictions would have been applicable had this Agreement not been executed and
neither the Special Committee nor the board of directors had passed any
resolutions exempting such person from Section 203.
SECTION 6.13 Restricted Stock. The Company confirms that at the
Effective Time shares of restricted stock granted by the Company shall be
converted into cash and be free of all restrictions and forfeiture provisions.
ARTICLE VII
CONDITIONS
SECTION 7.01 Conditions to Obligation of Each Party to Effect the
Merger. The respective obligations of Parent, Purchaser, Merger Sub and the
Company to consummate the
22
Merger are subject to the satisfaction or waiver (by mutual written consent of
the Company and Parent) at or prior to the Effective Time of each of the
following conditions:
(a) Purchase of Shares in Offer. Purchaser or Purchaser
and the Company, as applicable, shall have purchased the Shares that have been
tendered pursuant to the Offer, and the Expiration Date of the Offer shall have
occurred.
(b) Stockholder Approval. This Agreement and the Merger
shall have been approved and adopted by the requisite vote, if any, of the
stockholders of the Company;
(c) No Order. No court of competent jurisdiction or
United States federal or state Governmental Entity shall have issued an order,
decree, ruling or taken any other action restraining, enjoining or otherwise
prohibiting the consummation of the Merger or the other transactions
contemplated by this Agreement; provided, however, that the parties shall use
their reasonable best efforts to cause any such decree, judgment, injunction or
other order to be vacated or lifted.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time, whether prior to or after approval by the stockholders of the Company:
(a) by mutual written consent of Parent and the Company
(acting at the direction of the Special Committee);
(b) by either Parent or the Company (with the prior
approval of the Special Committee) if the Effective Time has not occurred on or
before July 19, 2005 (the "Termination Date"); provided, however, that the right
to terminate this Agreement under this Section 8.01(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Effective Time to occur on or
before the Termination Date;
(c) by either Parent or the Company (with the prior
approval of the Special Committee) if any court of competent jurisdiction or
other Governmental Entity shall have issued an order, decree, ruling or taken
any other action restraining, enjoining or otherwise prohibiting the Merger and
such order, decree, ruling or other action shall have become final and
nonappealable;
(d) by Parent at any time prior to the purchase of Shares
pursuant to the Offer, if a breach of any representation, warranty, covenant or
agreement on the part of the Company set forth in this Agreement shall have
occurred that would cause any condition set forth on Exhibit 1.01(c) of this
Agreement not to be satisfied, and such breach shall not have been cured in
order to satisfy the condition within 30 days of the date of such breach;
23
(e) by the Company at any time prior to the purchase of
Shares pursuant to the Offer, if a breach of any representation, warranty,
covenant or agreement on the part of Parent, Purchaser or Merger Sub set forth
in this Agreement shall have occurred that would cause any condition set forth
on Exhibit 1.01(c) of this Agreement not to be satisfied, and such breach shall
not have been cured in order to satisfy the condition within 30 days of the date
of such breach, other than the obligation to commence the Offer in accordance
with Section 1.01(a) of this Agreement, which shall require full compliance; or
(f) by either Parent or the Company (with the prior
approval of the Special Committee), if (x) the Offer shall have expired without
any Shares being purchased pursuant to the Offer or (y) the Purchaser shall not
have accepted for payment any Shares pursuant to the Offer by the ninetieth 90th
day from the date the Offer is commenced or such later date as contemplated by
the forty-five (45) day period referenced in condition (g) of Exhibit 1.01(c) of
this Agreement; provided, however, that the right to terminate this Agreement
under this section 8.01(f) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Purchaser to purchase the Shares pursuant to the Offer on
or before such date.
SECTION 8.02 Effect of Termination. In the event of the termination of
this Agreement as provided in Section 8.01 hereof, except as provided in Section
9.01 hereof, this Agreement shall forthwith become void and have no effect, and
there shall be no liability on the part of Parent, Purchaser, Merger Sub or the
Company. Nothing contained in this Section 8.02 shall relieve any party from
liability for any willful breach of this Agreement.
SECTION 8.03 Amendment. This Agreement may not be amended and no
waiver, consent or approval by or on behalf of the Company (or Special
Committee, if applicable) may be granted except pursuant to an instrument in
writing signed by or on behalf of the Company (or Special Committee, if
applicable) following approval of such action by the Special Committee and
signed by Parent, Purchaser and Merger Sub; provided, however, that after any
approval of this Agreement by the stockholders of the Company at the Special
Meeting, if applicable, no amendment may be made without the further approval of
the stockholders of the Company which would: (i) decrease the Merger
Consideration; or (ii) change any other terms and conditions in this Agreement
if any of the changes would, individually or in the aggregate, materially and
adversely affect the stockholders of the Company.
SECTION 8.04 Extension and Waiver. At any time prior to the Effective
Time, whether before or after approval of this Agreement by the stockholders of
the Company at the Special Meeting, if applicable:
(a) the Special Committee on behalf of the Company may
(a) extend the time for the performance of any of the obligations or other acts
of Parent, Purchaser and Merger Sub, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document, certificate
or writing delivered by Parent, Purchaser and Merger Sub pursuant hereto, or (c)
waive compliance by Parent, Purchaser and Merger Sub with any of the agreements
or with any conditions to the Company's obligations.
24
(b) Parent may (a) extend the time for the performance of
any of the obligations or other acts of the Company, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document,
certificate or writing delivered by the Company pursuant hereto, or (c) waive
compliance by the Company with any of the agreements or with any conditions to
Parent's, Purchaser's or Merger Sub's obligations.
(c) Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party by a duly authorized officer.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement
shall terminate at the Effective Time or the termination of this Agreement
pursuant to Section 8.01 hereof, as the case may be, except that the agreements
set forth in Section 8.02 and Section 9.02 hereof shall survive termination and
this Section 9.01 shall not limit any covenant or agreement of the parties
hereto which by its terms contemplates performance after the Effective Time.
SECTION 9.02 Fees and Expenses. All costs and expenses incurred in
connection with the Offer, the Merger, this Agreement and the consummation of
the transactions contemplated hereby shall be paid by the party incurring such
expenses, regardless of whether the Offer or the Merger shall be consummated;
provided that Parent shall bear one-half of the printing and mailing costs and
filing fees in connection with the Offer.
SECTION 9.03 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by telecopy or telex, overnight courier service or by
registered or certified mail (postage prepaid, return receipt requested), to the
respective parties at the following addresses or at such addresses as shall be
specified by the parties by like notice:
(a) If to Parent, Purchaser or Merger Sub:
Xxx Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. X'Xxxxx,
Executive Vice President and
Chief Financial Officer
Telecopy No: 000-000-0000
25
with copies to:
Xxx Enterprises, Inc.
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq., Vice President-
Legal Affairs, General Counsel and
Corporate Secretary
Telecopy No: 000-000-0000
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No: 202-776-2222
(b) If to the Company:
Xxx Communications, Inc.
c/o Special Committee
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chair
Telecopy No.: 000-000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: 212-859-4000
SECTION 9.04 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 thereof, except to the extent that mandatory provisions of federal law
apply. Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the Court
of Chancery of the State of Delaware and any appellate court thereof, in any
action or proceeding arising out of or relating to this Agreement or the
agreements delivered in connection herewith or the transactions contemplated
hereby or thereby or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereby irrevocably and unconditionally (a)
agrees not to commence any such action except in such court, (b) agrees that any
claim in respect of any such action or proceeding may be heard and determined in
such Delaware state court, (c) waives, to the fullest extent it may legally and
effectively do so any objection which it may now or hereafter have to venue of
any such action or proceeding in any such Delaware state court, and (d) waives,
to the fullest extent permitted by law, the defense of any inconvenient forum to
the
26
maintenance of such action or proceeding in any such Delaware state court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each of the parties
to this Agreement irrevocably consents to service of process in any such action
or proceeding in the manner provided for notices in Section 9.03 of this
Agreement; provided, however, that nothing in this Agreement shall affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 9.05 Entire Agreement; Assignment. This Agreement (together
with the annexes hereto) contains the entire agreement among Parent, Purchaser,
Merger Sub and the Company with respect to the Offer, the Merger and the
transactions contemplated hereby and supersedes all prior agreements and
undertakings, both written and oral, among the parities, or any of them, with
respect to these matters. Each party hereto has participated in the drafting of
this Agreement, which each party acknowledges is the result of extensive
negotiations between the parties. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. This Agreement shall not be assigned, except that
Purchaser may assign any of its rights and obligations hereunder, including,
without limitation, the right to purchase any or all of the Shares tendered
pursuant to the Offer, to Parent or one or more direct or indirectly
wholly-owned subsidiaries of Parent so long as such assignment does not prevent
or impair the satisfaction of any of the conditions set forth in Exhibit 1.01(c)
or Article VII or delay completion of the Offer, the Merger or the other
transactions contemplated hereby; provided, however, that no such assignment
shall relieve Purchaser of its obligations hereunder.
SECTION 9.06 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any terms or provisions of this Agreement in any other jurisdiction so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner adverse to any party. 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 in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
SECTION 9.07 Headings. Headings are used for reference purposes only
and do not affect the meaning or interpretation of this Agreement.
SECTION 9.08 Parties In Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and their respective
successors, legal representatives and permitted assigns, and, except for the
provisions of Section 6.03 hereof, which shall be enforceable by the
beneficiaries contemplated thereby, nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
27
SECTION 9.09 Specific Performance. The parties hereto agree that
irreparable harm would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement or to enforce specifically the performance of the
terms hereof in addition to any other remedies to which they are entitled at law
or in equity.
SECTION 9.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
SECTION 9.11 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS CONTAINED IN THIS SECTION 9.11.
[Signatures on the following page]
28
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
XXX ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
XXX HOLDINGS, INC.
By: /s/ G. Xxxxxx Xxxxx
----------------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
CEI-M Corporation
By: /s/ Xxxxxx X. X'Xxxxx
----------------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Vice President
XXX COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
29
EXHIBIT 1.01(c)
TO THE AGREEMENT AND
PLAN OF MERGER
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, and in addition to
(and not in limitation of) Purchaser's rights to extend and amend the Offer at
any time in its sole discretion in accordance with the terms of this Agreement,
Purchaser and the Company shall not be required to accept for payment, purchase
or pay for, subject to any applicable rule and regulation of the SEC, including
Rule 14e-1(c) under the Exchange Act, and may delay the acceptance for payment
of or, subject to the restriction referred to above, the payment for, any
tendered Shares (whether or not any Shares theretofore have been accepted for
payment or paid for pursuant to the Offer), and may terminate the Offer as to
any Shares not then paid for, if at any time on or after October 19, 2004 and
prior to the time of payment for any such Shares, any of the following events
shall occur:
(a) the MOM Condition shall not have been met;
(b) there shall be pending an order, decree, ruling or
action restraining, enjoining or otherwise prohibiting the consummation of the
Offer or the Merger or the other transactions contemplated by this Agreement in
connection with a suit, claim or action filed by a private (non-government)
third-party;
(c) there shall (A) be pending any suit, claim, action,
proceeding, hearing, notice of violation, demand letter or an investigation
initiated, filed or conducted, or (B) have been a statute, rule, regulation,
judgment, order or injunction promulgated, entered, enforced, enacted, issued or
rendered applicable to the Offer or the Merger, in either case initiated by any
domestic, federal or state governmental, regulatory or administrative agency or
authority or court or legislative body or commission which (i) prohibits or
imposes any material limitations on Parent's or Purchaser's ownership, control
or operation of all or a material portion of the businesses or assets of the
Company or its subsidiaries, (ii) prohibits or makes illegal the acceptance for
payment, payment for or purchase of Shares or the consummation of the Offer or
the Merger, (iii) results in a material delay in or restricts the ability of
Purchaser, or renders Purchaser unable, to accept for payment, pay for or
purchase some or all of the Shares, (iv) imposes material limitations on the
ability of Purchaser or Parent effectively to exercise full rights of ownership
of the Shares, including, without limitation, the right to vote the Shares
purchased by it on all matters properly presented to the Company's stockholders,
(v) requires material divestiture by Parent or its affiliates of Shares, (vi)
seeks to compel Parent, its affiliates, or the Company or its subsidiaries to
dispose of material portions of the business, assets or properties of the
Company or its subsidiaries, Parent or its affiliates or (vii) challenges or
seeks to enjoin or prohibit (or seeks damages for) the consummation of the
Merger or the acquisition by Parent, Purchaser or the Company of the Shares;
provided that Parent shall have used all reasonable efforts to cause any such
judgment, order or injunction to be vacated or lifted; it being understood that
the receipt of the consents listed on Schedule 4.04(b) to this Agreement shall
not be a condition to the Offer and to the extent any of the foregoing have been
initiated by any
1
governmental authority listed on Schedule 4.04(b) to this Agreement with respect
to the consents listed thereon such event shall not be a condition to the Offer;
(d) the representations and warranties of the Company set
forth in this Agreement shall not be true and correct as of the date of
consummation of the Offer as though made on or as of such date, or the Company
shall have breached or failed in any material respect to perform or comply with
any material obligation, agreement or covenant required by this Agreement to be
performed or complied with by it, except in the case of any of the foregoing for
any such failures, conflicts, violations, breaches, defaults or other
occurrences which, individually or in the aggregate, have not had or would not
reasonably be expected to have a Company Material Adverse Effect or prevent or
materially delay the performance by the Company of any of its obligations under
this Agreement or the consummation of any of the transactions contemplated
hereby;
(e) the funding from the Xxx Communications Credit
Facility shall not have been obtained by the Company for reasons other than
those contemplated in condition (g) below;
(f) the funding from the Xxx Enterprises Credit Facility
shall not have been obtained by Parent for reasons other than those contemplated
in condition (g) below;
(g) there shall have occurred, and continue to exist, any
of the following that causes the failure of the conditions set forth in (e) and
(f) above not to be satisfied (provided that in such event Parent shall use
reasonable best efforts for a forty-five (45) day period beginning after the
occurrence of such event to obtain replacement financing on substantially
identical terms) (i) any general suspension of, or limitation on prices for,
trading in securities on any national securities exchange, including the New
York Stock Exchange, for a period of two days, (ii) a declaration of a banking
moratorium, (iii) any extraordinary limitation by any governmental authority
that affects the extension of credit in the United States, (iv) the commencement
of war or other hostilities involving the United States that materially and
adversely affects the extension of credit in the United States, (v) a change in
general financial bank or capital market conditions which materially and
adversely affects the ability of United States financial institutions to extend
credit or closes the capital markets, as a practical matter, to Parent or (vi)
if any of (i) through (v) exists at the time of the execution of this Agreement,
a material acceleration or worsening thereof;
(h) the Company (as directed by the Special Committee),
Parent, Purchaser and Merger Sub shall have agreed that Purchaser and the
Company shall terminate the Offer or postpone the acceptance for payment of or
payment for Shares thereunder; or
(i) the Agreement shall have been terminated in
accordance with its terms.
Except for the MOM Condition and the condition set forth in (e) above,
the foregoing conditions are for the sole benefit of Parent, Purchaser, Merger
Sub and their respective affiliates (other than the Company and its
subsidiaries) and may be asserted by Parent or Purchaser, in whole or in part,
at any time and from time to time in the reasonable discretion of Parent or
Purchaser. The failure by Parent or Purchaser at any time to exercise their
respective rights
2
under such conditions shall not be deemed a waiver of any such rights and each
such right shall be deemed an ongoing right which may be asserted at any time or
from time to time.
Should the Offer be terminated pursuant to any of the foregoing
provisions, all tendered Shares not theretofore accepted for payment shall
forthwith be returned to the tendering stockholders.
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Exhibit 2.04(a) to the Agreement and
Plan of Merger dated October 19, 2004
CERTIFICATE OF INCORPORATION OF
XXX COMMUNICATIONS, INC.
ARTICLE I: NAME.
The name of this corporation (the "Corporation") is:
Xxx Communications, Inc.
ARTICLE II: REGISTERED OFFICE/INCORPORATOR.
The address of the registered office of the Corporation in the State of
Delaware is Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, in
the City of Xxxxxxxxxx, Xxxxxx xx Xxx Xxxxxx 00000. The registered agent in
charge thereof is The Corporation Service Company. The name and mailing address
of the incorporator is Xxxx X. Xxxx, Xxx Enterprises, Inc., 0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000.
ARTICLE III: BUSINESS.
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware, including the performance of all activities
required for the merger of the Corporation with CEI-M Corporation pursuant to
that certain Agreement and Plan of Merger dated as of October 19, 2004, by and
among the Corporation, Xxx Enterprises, Inc., Xxx Holdings, Inc. and CEI-M
Corporation and to have and exercise all the powers conferred by the laws of the
State of Delaware upon corporations formed under the General Corporation Law of
the State of Delaware.
ARTICLE IV: AUTHORIZED CAPITAL STOCK.
A. AUTHORIZED SHARES. The total number of shares of all capital
stock that the Corporation shall have the authority to issue is seven hundred
forty three million (743,000,000) shares, of which (i) seven hundred thirty
three million (733,000,000) shares of a par value one cent ($.01) per share
shall be Common Stock and (ii) ten million (10,000,000) shares of a par value
one cent ($.01) per share shall be Preferred Stock. The Common Stock shall be
divided into two classes as follows: six hundred seventy one million
(671,000,000) shares of Class A Common Stock ("Class A Stock") and sixty two
million (62,000,000) shares of Class C Common Stock ("Class C Stock").
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B. CLASS A STOCK AND CLASS C STOCK.
1. POWERS, PREFERENCES AND RIGHTS.
Except as otherwise provided in this Article IV, each share of Common
Stock shall be identical.
2. VOTING RIGHTS.
a. If there shall be only one class of Common
Stock outstanding, each share of Common Stock shall entitle the holder thereof
to one (1) vote.
b. If both classes of Common Stock are issued
and outstanding, each share of Class A Stock shall entitle the holder thereof to
one (1) vote and each share of Class C Stock shall entitle the holder thereof to
ten (10) votes. Except as set forth herein, all actions submitted to a vote of
stockholders shall be voted on by the holders of Class A Stock and Class C Stock
(as well as the holders of any Preferred Stock, if any, entitled to vote
thereon) voting together as a single class.
c. The holders of Class A Stock and Class C
Stock shall each be entitled to vote separately as a class with respect to (i)
amendments to this Certificate of Incorporation that alter or change the powers,
preferences or special rights of their respective class of stock so as to affect
them adversely and (ii) such other matters as require class votes under the
General Corporation Law of the State of Delaware.
d. Except as otherwise provided by law or
pursuant to this Article IV or by resolution or resolutions of the Board of
Directors of the Corporation (the "Board") providing for the issuance of any
series of Preferred Stock, the holders of the Class A Stock and the Class C
Stock shall have sole voting power for all purposes as to which the stockholders
of the Corporation are entitled to vote, each holder of the Class A Stock and
Class C Stock being entitled to vote as provided in subparagraph 2.b of
paragraph B of Article IV.
3. DIVIDENDS.
a. If and when dividends on the Class A Stock and Class
C Stock are declared payable from time to time by the Board as provided in this
subparagraph 3.a of paragraph B of Article IV, whether payable in cash, in
property or in shares of stock of the Corporation, the holders of Class A Stock
and the holders of Class C Stock shall be entitled to share equally, on a per
share basis, in such dividends, subject to the limitations described below. If
dividends are declared that are payable in shares of Class A Stock or Class C
Stock, such dividends shall be payable at the same rate on all classes of Common
Stock and the dividends payable in shares of Class A Stock shall be payable only
to holders of Class A Stock and the dividends payable in shares of Class C Stock
shall be payable only to holders of Class C Stock. If the Corporation shall in
any manner subdivide or combine the outstanding shares of Class A Stock or Class
C Stock, the outstanding shares of the other class of Common Stock shall be
proportionally subdivided or combined in the same manner and on the same basis
as the outstanding shares of Class A Stock or Class C Stock, as the case may be,
that have been subdivided or combined.
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b. Subject to provisions of law and the preferences of
the Preferred Stock and of any other stock ranking prior to the Class A Stock or
the Class C Stock as to dividends, the holders of the Class A Stock and the
Class C Stock shall be entitled to receive dividends at such time and in such
amounts as may be determined by the Board and declared out of any funds lawfully
available therefor, and shares of Preferred Stock of any series shall not be
entitled to share therein except as otherwise expressly provided in the
resolution or resolutions of the Board providing for the issue of such series.
4. CONVERSION OF CLASS C STOCK BY HOLDER.
a. The holder of each share of Class C Stock shall have
the right at any time, or from time to time, at such holder's option, to convert
such share into one fully paid and nonassessable share of Class A Stock on and
subject to the terms and conditions hereinafter set forth.
b. In order to exercise his conversion privilege, the
holder of any shares of Class C Stock to be converted shall present and
surrender the certificate or certificates representing such shares during usual
business hours at any office or agency of the Corporation maintained for the
transfer of Class C Stock and shall deliver a written notice of the election of
the holder to convert the shares represented by such certificate or any portion
thereof specified in such notice. Such notice shall also state the name or names
(with address) in which the certificate or certificates for shares of Class A
Stock issuable on such conversion shall be registered. If required by the
Corporation, any certificate for shares surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder of such shares or his duly authorized
representative. Each conversion of shares of Class C Stock shall be deemed to
have been effected on the date (the "conversion date") on which the certificate
or certificates representing such shares shall have been surrendered and such
notice and any required instruments of transfer shall have been received as
aforesaid, and the person or persons in whose name or names any certificate or
certificates for shares of Class A Stock shall be issuable on such conversion
shall be, for the purpose of receiving dividends and for all other corporate
purposes whatsoever, deemed to have become the holder or holders of record of
the shares of Class A Stock represented thereby on the conversion date.
c. As promptly as practicable after the presentation and
surrender for conversion, as herein provided, of any certificate for shares of
Class C Stock, the Corporation shall issue and deliver at such office or agency,
to or upon the written order of the holder thereof, certificates for the number
of shares of Class A Stock issuable upon such conversion. In case any
certificate for shares of Class C Stock shall be surrendered for conversion of a
part only of the shares represented thereby, the Corporation shall deliver at
such office or agency, to or upon the written order of the holder thereof, a
certificate or certificates for the number of shares of Class C Stock
represented by such surrendered certificate that are not being converted. The
issuance of certificates for shares of Class A Stock issuable upon the
conversion of shares of Class C Stock by the registered holder thereof shall be
made without charge to the converting holder for any tax imposed on the
Corporation in respect of the issue thereof. The Corporation shall not, however,
be required to pay any tax that may be payable with respect to any transfer
involved in the issue and delivery of any certificate in a name other than that
of the registered
3
holder of the shares being converted, and the Corporation shall not be required
to issue or deliver any such certificate unless and until the person requesting
the issue thereof shall have paid to the Corporation the amount of such tax or
has established to the satisfaction of the Corporation that such tax has been
paid.
d. The holder of shares converted from Class C to Class
A shares shall only be entitled to dividends (i) payable on shares of Class C
Stock that were declared on a date prior to the conversion date of such
converted shares, and (ii) payable on shares of Class A Stock that were declared
on or after such conversion date of such converted shares.
e. In case of any sale or conveyance of all or
substantially all of the property or business of the Corporation as an entirety,
a holder of a share of Class C Stock shall have the right thereafter to convert
such share into the kind and amount of cash, shares of stock and other
securities and properties receivable upon such sale or conveyance by a holder of
one share of Class A Stock and shall have no other conversion rights with regard
to such share. The provisions of this subparagraph 4.e of paragraph B of Article
IV shall similarly apply to successive sales or conveyances.
f. Shares of the Class C Stock converted into Class A
Stock shall be retired and shall resume the status of authorized but unissued
shares of Class C Stock.
g. Such number of shares of Class A Stock as may from
time to time be required for such purpose shall be reserved for issuance upon
conversion of outstanding shares of Class C Stock.
5. TERMINATION OF CLASS C STOCK.
a. All outstanding shares of Class C Stock shall
automatically, without any further act or deed on the part of this Corporation
or any other person, be converted into shares of Class A Stock on a
share-for-share basis at the option of the Corporation, at any time when the
Board and the holders of a majority of the outstanding shares of the Class C
Stock approve the conversion of all of the Class C Stock into Class A Stock.
b. In the event of any automatic conversion of Class C
Stock pursuant to this subparagraph 5 of paragraph B of Article IV, certificates
formerly representing outstanding shares of Class C Stock will thereafter be
deemed to represent the number of shares of Class A Stock into which such shares
have been converted.
6. PRIORITY OF PREFERRED STOCK.
The Class A Stock and the Class C Stock are subject to all the powers,
rights, privileges, preferences and priorities of any series of Preferred Stock
as may be stated herein and as shall be stated and expressed in any resolution
or resolutions adopted by the Board, pursuant to authority expressly granted to
and vested in it by the provisions of this Article IV.
7. LIQUIDATION, DISSOLUTION OR WINDING UP.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether
4
voluntarily or involuntarily (sometimes referred to as liquidation), after
payment or provision for payment of the debts and other liabilities of the
Corporation and the preferential amounts to which the holders of any stock
ranking prior to the Class A Stock and the Class C Stock in the distribution of
assets shall be entitled upon liquidation, the holders of the Class A Stock and
the Class C Stock shall be entitled to share pro rata in the remaining assets of
the Corporation according to their respective interests.
C. PREFERRED STOCK.
Shares of Preferred Stock may be issued from time to time in one or
more series. Shares of Preferred Stock that may be redeemed, purchased or
acquired by the Corporation may be reissued except as otherwise provided by law.
The Board is hereby authorized to fix or alter the designations and powers,
preferences and relative, participating, optional or other rights, if any, and
qualifications, limitations or restrictions thereof, including, without
limitation, the dividend rate (and whether dividends are cumulative), conversion
rights, if any, voting rights, rights and terms of redemption (including sinking
fund provisions, if any), redemption price and liquidation preferences of any
wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof, or any of them, and to increase or
decrease the number of shares of any series subsequent to the issue of shares of
that series, but not below the number of shares of such series then outstanding.
ARTICLE V: NUMBER OF DIRECTORS AND LIMITATION OF LIABILITY OF DIRECTORS.
A. NUMBER OF DIRECTORS. The number of directors that shall
constitute the whole Board of the Corporation shall be as specified in the
Bylaws of the Corporation, as the same may be amended from time to time.
B. LIMITATION OF LIABILITY OF DIRECTORS. The Corporation shall,
to the fullest extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented, or any
successor provision thereto, indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said section
and, as provided in said section shall advance expenses, including reasonable
attorneys' fees, of any and all such persons, and the indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such persons. To the fullest extent permitted by Section 102
of the General Corporation Law of Delaware, as the same may be amended and
supplemented, or any successor provision thereto, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
C. FUTURE AMENDMENTS. In addition to the provisions of paragraph
B of Article V hereof, if Delaware law is amended hereafter to authorize or
permit corporate action further limiting or eliminating the personal liability
of a director to the Corporation or its stockholders,
5
then the liability of each director of the Corporation shall be further limited
or eliminated to the fullest extent permitted by any such future amendment of
the law of the State of Delaware.
D. REPEAL OR MODIFICATION. Any repeal or modification of this
Article V or any provision hereof shall not increase the personal liability of
any director or the Corporation for any act or occurrence taking place prior to
such repeal or modification, or otherwise adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE VI: MEETINGS.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws of the Corporation may provide. The books of the
Corporation may be kept (subject to any provision of Delaware law) outside the
State of Delaware at such place or places as may be designated from time to time
by the Board or in the Bylaws of the Corporation. Elections of directors need
not be by written ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE VII: ELECTION OF DIRECTORS.
A. STOCKHOLDERS' MEETING. The Directors shall be elected at the
annual meeting of stockholders as set forth in the Bylaws.
B. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors, effected by amendment
to the Bylaws, may be filled by resolution of a majority of the directors then
in office, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and qualified, unless sooner displaced. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute. If at any time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board of Directors (as constituted immediately prior to any such
increase), the Court of Chancery of the State of Delaware, upon application of
any stockholder or stockholders holding at least ten percent of the total number
of shares at the time outstanding having the right to vote for such directors,
may summarily order an election to be held to fill any such vacancies or newly
created directorships or to replace the directors chosen by the directors then
in office.
ARTICLE VIII: INDEMNIFICATION.
The Corporation shall indemnify, in the manner and to the full extent
permitted by law, any person (or the estate of any person) who was or is a party
to, or is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise (a "Proceeding"), by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise. The Corporation may, to the full
extent permitted by law, purchase and maintain insurance on behalf of any such
person against any liability that may be asserted against him. To the full
extent permitted by law, the indemnification provided herein shall include
expenses (including attorneys' fees), judgments,
6
fines and amounts paid in settlement, and, in the manner provided by law, any
such expenses shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding. The indemnification provided
herein shall not be deemed to limit the right of the Corporation to indemnify
any other person for any such expenses to the full extent permitted by law, nor
shall it be deemed exclusive of any other rights to which any person seeking
indemnification from the Corporation may be entitled under any agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office.
ARTICLE IX: ADOPTION, AMENDMENT OR REPEAL OF BYLAWS.
The Board of Directors may adopt, amend or repeal the Bylaws as and to
the extent provided therein; provided, however, that the granting of such power
to the Board of Directors shall not divest the stockholders of the power, nor
limit the stockholders' power to adopt, amend or repeal the Bylaws.
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Exhibit 2.04(b) to the Agreement and
Plan of Merger dated October 19, 2004
AMENDED AND RESTATED BYLAWS
OF
XXX COMMUNICATIONS, INC.
The Bylaws of the corporation shall be amended and restated as of this
__ day of _____, 200_, to read in full as follows:
ARTICLE I
OFFICES
Section 1. The registered office of the corporation shall be
located at 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxx xx Xxxxxxxx 00000.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware and the United States as
the Board of Directors may from time to time determine or as the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All annual meetings of the stockholders for the
election of directors shall be held in Atlanta, Georgia, at such place and time
as may be fixed from time to time by the Board of Directors, or at such other
place either within or without the State of Delaware or the United States as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver of the notice thereof.
Meetings of the stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware or the United States, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof. In lieu of holding an annual meeting of stockholders at a designated
place, the Board of Directors may, in its sole discretion, determine that any
annual meeting of stockholders may be held solely by means of remote
communication.
Section 2. Annual meetings of the stockholders shall be held on
such date and at such time as shall be designated from time to time by the Board
of Directors. At the annual meeting, the stockholders shall elect the Board of
Directors and shall transact such other business as may properly be brought
before the meeting.
Section 3. Business may be properly brought before an annual
meeting by a stockholder only upon the stockholder's timely notice thereof in
writing to the Secretary of the
corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the corporation not less than
thirty (30) days nor more than sixty (60) days prior to the meeting as
originally scheduled, provided, however, that if less than forty (40) days'
notice or prior public disclosure of the date of the date of the meeting is
given or made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the annual meeting was mailed or such public
disclosure was made. For purposes of this Section 3 any adjournment(s) or
postponement(s) of the original meeting whereby the meeting will reconvene
within thirty (30) days from the original date shall be deemed for purposes of
notice to be a continuation of the original meeting and no business may be
brought before any reconvened meeting unless such timely notice of such business
was given to the Secretary of the corporation for the meeting as originally
scheduled. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting (ii)
the name and record address of the stockholder proposing such business, (iii)
the class and number of shares of the corporation that are beneficially owned by
the stockholder in such business. Notwithstanding the foregoing, nothing in this
Section 3 shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement distributed by at the
direction of, or on behalf of the Board. The chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Section, and if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted.
Section 4. Written notice of the annual meeting stating the
place, date and time of the meeting shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 5. Special meetings of the stockholders for any purpose
or purposes, unless otherwise provided by statute, the Certificate of
Incorporation or these Bylaws, may be called by the Chairman of the Board and
shall be called by the Chairman of the Board or Secretary at the request in
writing of a majority of the Board of Directors or at the request in writing of
stockholders owning a majority of the issued and outstanding shares entitled to
vote. Such requests shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting shall state the
place, date and time of the meeting and the purpose or purposes for which the
meeting is called and shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote at
such meeting. In lieu of holding a special meeting of stockholders at a
designated place, the Board of Directors may, in its sole discretion, determine
that any special meeting of stockholders be held solely by means of remote
communication.
Section 7. Business transacted at any special meeting of the
stockholders shall be limited to the purpose or purposes stated in the notice,
unless the holders of a majority of the issued and outstanding shares entitled
to vote otherwise consent thereto either at the special meeting or in writing
executed subsequent to the meeting.
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Section 8. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days before every annual
or special meeting of the stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to examination by any stockholder for
any purpose germane to the meeting during ordinary business hours, and for a
period of at least ten (10) days prior to the meeting at the principal place of
business of the corporation. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof and may be inspected
by any stockholder who is present at the meeting.
Section 9. The holders of record of a majority of the voting
power of the corporation, who are present in person or represented by proxy at
the meeting, shall constitute a quorum at all annual and special meetings of the
stockholders for the transaction of business, unless otherwise provided by
statute, the Certificate of Incorporation or these Bylaws. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally described in the notice to the stockholders. If the
adjournment is for more than thirty (30) days or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 10. When a quorum is present at any annual or special meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy at the meeting shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of statute, the Certificate of Incorporation or these Bylaws a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 11. No proxy shall be voted or acted upon after a period
of three years from its date, unless the proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another person
or persons to act for such stockholder as proxy, the following shall constitute
valid means by which a stockholder may grant such authority:
(a) A stockholder may execute a writing authorizing
another person or persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or the stockholder's authorized officer,
director, employee, or agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature; and
(b) A stockholder may authorize another person or persons
to act for such stockholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of electronic transmission
to the person or persons who will be the holder of the proxy or to an agent of
the proxyholder(s) duly authorized by such proxyholder(s) to receive such
transmission; provided, however, that any such telegram, cablegram, or other
means of
3
electronic transmission must either set forth or be submitted with information
from which it can be determined that the telegram, cablegram, or other
electronic transmission was authorized by the stockholder. If it is determined
that any such telegram, cablegram, or other electronic transmission is valid,
the inspectors or, if there are no inspectors, such other persons making that
determination, shall specify the information upon which they relied.
Any copy, facsimile telecommunication, or other reliable reproduction
of a writing or electronic transmission authorizing a person or persons to act
as proxy for a stockholder may be substituted or used in lieu of the original
writing or electronic transmission for any and all purposes for which the
original writing or electronic transmission could be used; provided, however,
that such copy, facsimile telecommunication, or other reproduction shall be a
complete reproduction of the entire original writing or electronic transmission.
Section 12. For the purposes of these Bylaws, if authorized by
the Board of Directors in its sole discretion, and subject to such guidelines
and procedures as the Board of Directors may adopt, stockholders and
proxyholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (i) the corporation shall
implement reasonable measures to verify that each person deemed present and
permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the corporation.
Section 13. Unless otherwise provided by statute, the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken
at any annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding stock
of the corporation having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Such consent shall be filed
with the Secretary of the corporation. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
Section 14. A telegram, cablegram, or other electronic
transmission consenting to an action to be taken and transmitted by a
stockholder or proxyholder, or by a person or persons authorized to act for a
stockholder or proxyholder, shall be deemed to be written, signed, and dated for
the purposes of these Bylaws, provided that any such telegram, cablegram, or
other electronic transmission sets forth or is delivered with information from
which the corporation can determine (i) that the telegram, cablegram, or other
electronic transmission was transmitted by the stockholder or proxyholder or by
a person or persons authorized to act for the stockholder
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or proxyholder and (ii) the date on which such stockholder or proxyholder or
authorized person or persons transmitted such telegram, cablegram, or electronic
transmission. Any consent by means of telegram, cablegram, or other electronic
transmission shall be deemed to have been signed on the date on which such
telegram, cablegram, or electronic transmission was transmitted. No consent
given by telegram, cablegram, or other electronic transmission shall be deemed
to have been delivered until such consent is reproduced in paper form and until
such paper form shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested. Notwithstanding the foregoing
limitations on delivery, consents given by telegram, cablegram, or other
electronic transmission may be otherwise delivered to the principal place of
business of the corporation or to an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded if, to the extent, and in the manner provided by resolution of the
Board of Directors of the corporation.
Section 15. Any copy, facsimile, or other reliable reproduction
of a consent in writing (or reproduction in paper form of a consent by telegram,
cablegram, or electronic transmission) may be substituted or used in lieu of the
original writing (or original reproduction in paper form of a consent by
telegram, cablegram, or electronic transmission) for any and all purposes for
which the original consent could be used, provided that such copy, facsimile, or
other reproduction shall be a complete reproduction of the entire original
writing (or original reproduction in paper form of a consent by telegram,
cablegram, or electronic transmission).
ARTICLE III
DIRECTORS
Section 1. The number of directors that constitutes the Board of
Directors shall be at least three (3) and not more than eleven (11). The first
Board of Directors shall initially consist of the number of directors as shall
be specified at the organizational meeting of the corporation. Thereafter,
within the limits above specified, the number of directors shall be determined
by resolution of the Board of Directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article. Each director
shall hold office until his or her successor is elected and qualified. Directors
need not be stockholders.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director. The directors so chosen shall hold office until the
next annual election and until their successors are duly elected and qualified,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If at any time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board of Directors (as
constituted immediately prior to any such increase), the Court of Chancery of
the State of Delaware, upon application of any stockholder or stockholders
holding at least ten percent of the total number of shares at the time
outstanding having the right to vote
5
for such directors, may summarily order an election to be held to fill any such
vacancies or newly created directorships or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by
its Board of Directors, which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute, the Certificate of
Incorporation or these Bylaws directed or required to be exercised or done by
the stockholders.
Section 4. The Chairman of the Board and Vice Chairman of the
Board, if any, shall be elected by the Board of Directors at the Board's first
meeting after each annual meeting of stockholders. The Chairman of the Board and
Vice Chairman of the Board, if any, shall continue to serve as the Chairman of
the Board or the Vice Chairman of the Board, until his successor has been chosen
and qualified
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. The Board of Directors of the corporation may hold
meetings, both regular and special, within or without the State of Delaware or
the United States.
Section 2. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall from time to time be
determined by the Board of Directors.
Section 3. Special meetings of the Board of Directors may be
called by the Chairman of the Board on three (3) days' notice to each director,
either personally or by mail, or on twenty-four (24) hours' notice (provided,
however, that a portion of such 24-hour period shall include at least four (4)
hours of a business day) to each director by facsimile or by electronic
transmission. Such meetings shall be called by the Chairman of the Board or
Secretary in like manner and on like notice on the written request of a majority
of the directors.
Section 4. At all regular and special meetings of the Board of
Directors, a simple majority of the directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, unless otherwise specifically provided by statute, the Certificate of
Incorporation or these Bylaws. If a quorum is not present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum shall be present.
Section 5. Unless otherwise provided by statute, the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board or the committee, as the
case may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of the proceedings of the Board of Directors; provided, however,
that such electronic transmission or transmissions must either set forth or be
submitted with information from which it can be determined that the electronic
transmission or transmissions were authorized by the director.
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Section 6. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors, or
any committee, by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 1. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each consisting
of two or more directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 2. Except as provided below, any committee, to the
extent provided in the resolutions of the Board of Directors and in these
Bylaws, shall have and may exercise all of the powers and authority of the Board
of Directors in the management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed to all papers that
may require it. No committee, however, shall have the power or authority to
amend the Certificate of Incorporation; to adopt an agreement of merger or
consolidation; to recommend to the stockholders the sale, lease, exchange or
other disposition of all or substantially all of the corporation's property and
assets; to recommend to the stockholders a dissolution of the corporation or a
revocation of a dissolution; or to amend these Bylaws; further, unless a
resolution of the Board of Directors, these Bylaws or the Certificate of
Incorporation expressly so provides, no committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger.
Section 3. A committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors.
Section 4. Each committee shall keep regular minutes of its
meetings and shall file them with the minutes of the proceedings of the Board of
Directors when required.
ARTICLE VI
COMPENSATION OF DIRECTORS
Section 1. Unless otherwise provided by statute, the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of the directors.
Section 2. The directors may be paid their expenses, if any, of
attending meetings of the Board of Directors. Such payments may take the form of
a fixed sum for attendance at each
7
meeting or a stated salary as a director. Members of committees may be allowed
like compensation for attending committee meetings.
Section 3. No payment permitted under this Article V shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
ARTICLE VII
OFFICERS
Section 1. The officers of the corporation shall be designated
by the Board of Directors, by election, and shall include a President or a Chief
Executive Officer (either, the "CEO"), a Secretary and a Treasurer. The Board of
Directors may also elect such other officers and agents as it deems necessary,
including Vice Presidents and one or more Assistant Secretaries and Assistant
Treasurers. Any number of offices may be held by the same person, unless
otherwise provided by statute, the Certificate of Incorporation or these Bylaws.
Section 2. The officers of the corporation shall be elected by
the Board of Directors at the Board's first meeting after each annual meeting of
stockholders.
Section 3. The officers of the corporation shall hold office
until their successors are chosen and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors whenever in its
judgment the best interests of the corporation will be served thereby. Any
vacancy occurring in any office of the corporation shall be filled by the Board
of Directors.
Section 4. In the absence of the Chairman and Vice Chairman, if
any of the Board, the CEO shall preside at the meetings of the Board of
Directors and at meetings of the stockholders and he shall have such other
powers and perform such duties as may from time to time be assigned to him by
the Board of Directors.
Section 5. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors.
Section 6. The CEO shall be responsible for corporate policy
and strategy. The CEO shall see that all orders and resolutions of the Board of
Directors are carried into effect. The CEO shall execute under the seal of the
corporation bonds, mortgages and other contracts requiring a seal, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof is expressly delegated by the Board of
Directors to some other officer or agent of the corporation.
Section 7. In the absence of the CEO or in the event of the
CEO's inability or refusal to act, the Vice President (or in the event there are
more than one, the Vice Presidents in the order designated, or in the absence of
any designation, then in the order of their election) shall perform the duties
of the CEO, as the case may be, and, when so acting, shall have all the powers
of and be subject to all the restrictions upon the CEO, as the case may be. The
Vice President shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
8
Section 8. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all of the
proceedings of the meetings of the corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for any
committees when required. The Secretary shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors and shall perform such other duties as may be prescribed by the Board
of Directors or the CEO, under whose supervision he or she shall be. The
Secretary shall have custody of the corporate seal of the corporation, and he or
she, or an Assistant Secretary, shall have the authority to affix the same to
any instrument requiring it, and (when so affixed) it may be attested by his or
her signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his or her signature.
Section 9. The Assistant Secretary, or if there are more than
one, the Assistant Secretaries in the order determined by the Board of Directors
(or if there is no such determination, then in the order of their election),
shall, in the absence of the Secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 10. The Treasurer shall have custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
Section 11. The Treasurer shall disburse the funds of the
corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the CEO, and the Board of Directors
at the Board's regular meetings or when the Board so requires, an account of all
his or her transactions as Treasurer and of the financial condition of the
corporation.
Section 12. If required by the Board of Directors, the
Treasurer shall give the corporation a bond (which shall be renewed every six
years) in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his or her
office and for the restoration to the corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the corporation.
Section 13. The Assistant Treasurer, or if there are more than
one, the Assistant Treasurers in the order determined by the Board of Directors
(or if there is no such determination, then in the order of their election),
shall, in the absence of the Treasurer or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
9
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of any statute, the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any director or stockholder, it shall not be construed to mean solely personal
notice, but such notice may be given in writing by mail or overnight courier
addressed to such director or stockholder at his, her or its address as it
appears on the records of the corporation with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same is deposited in the
United States mail, or upon receipt if given via overnight courier. Notice to
stockholders may also be given in the form of electronic transmission as
permitted by Section 3 of this Article VII. Notice to directors may also be
given by facsimile or electronic mail (directed to the facsimile transmission
number, or if by electronic mail, directed to an electronic mail address, for
which the director has consented to receive notice).
Section 2. Whenever any notice is required to be given by
statute, the Certificate of Incorporation or these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, or by
electronic transmission, whether before or after the time stated therein, shall
be deemed equivalent thereto. If such a waiver is given by electronic
transmission, the electronic transmission must either set forth or be submitted
with information from which it can be determined that the electronic
transmission was authorized by such person or persons.
Section 3. Any notice to stockholders given by the corporation
shall be effective if delivered or given by a form of electronic transmission to
which the stockholder to whom the notice is given has consented. Notice given
pursuant to this Section shall be deemed given: (i) if by facsimile
telecommunication, when directed to a facsimile telecommunication number at
which the stockholder has consented to receive notice; (ii) if by electronic
mail, when directed to an electronic mail address at which the stockholder has
consented to receive notice; (iii) if by posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate notice; and
(iv) if by any other form of electronic transmission, when directed to the
stockholder. An affidavit of the secretary or an assistant secretary or of the
transfer agent or other agent of the corporation that the notice has been given
by a form of electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
ARTICLE IX
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by the CEO or a Vice President, and by
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, certifying the number of shares owned by the stockholder in the
corporation.
Section 2. Any or all of the signatures on the certificate may
be a facsimile if the certificate is manually signed on behalf of a transfer
agent or a registrar (other than the
10
corporation itself or an employee of the corporation). In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, the certificate may be issued by
the corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 3. The Board of Directors may direct that a new
certificate or certificates be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates or his or
her legal representative to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by the proper evidence of succession, assignment or authority to
transfer, the corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date that shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new date for
the new adjourned meeting.
Section 6. The corporation shall be entitled to recognize the
exclusive rights of a person registered on its books as the owner of shares to
receive dividends and to vote as such owner. The corporation shall be entitled
to hold liable for calls and assessments a person registered on its books as the
owner of shares. The corporation shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, regardless of whether the corporation shall have express or other notice
thereof, unless otherwise provided by statute, the Certificate of Incorporation
or these Bylaws.
ARTICLE X
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, unless otherwise provided by statute, the Certificate of
Incorporation or these Bylaws, may be declared
11
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, property, or in shares of stock, unless otherwise
provided by statute, the Certificate of Incorporation or these Bylaws. Before
payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the Board of Directors
from time to time, in their absolute discretion, may think proper as a reserve
or reserves for contingencies, equalizing dividends, repairing or maintaining
any property of the corporation, or for such other purpose or purposes as the
Board of Directors shall think conducive to the interests of the corporation,
and the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
Section 2. Annual Statements. The Board of Directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
Section 3. Checks. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the corporation
shall be designated by resolution of the Board of Directors
Section 5. Indemnification. The corporation shall have the
power to indemnify its officers, directors, employees and agents of the
corporation, and such other persons as designated by the Board of Directors, to
the full extent as permitted under the laws of the State of Delaware.
Section 6. Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization, and the name
of the State of Delaware. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 7. Amendments. These Bylaws may be altered, amended or
repealed or new Bylaws adopted by either (i) by the stockholders at any annual
meeting or at any special meeting of the stockholders (if notice of such
alteration, amendment, repeal or adoption of new Bylaws is contained in the
notice of such special meeting), by a vote of a majority of the holders of stock
having voting power present in person or represented by proxy at such meeting at
which there is a quorum or (ii) by the Board of Directors.
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Schedule 4.04(b)
(Governmental Approvals)
Cable Television Franchising Authorities
Topeka, Kansas
Santa Barbara, California
Goleta, California
Carpinteria, California
Connecticut DPUC
La Mesa, California
Irvine, California
Oceanside, California
State Regulatory Commission/Telecommunications Authorizations
Louisiana Public Service Commission
Virginia State Corporation Commission
