Exhibit 2.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of January 7, 1999, by and
among Xxxxxxx Xxxxxxxx Xxxxxxxx, LLC, a Delaware limited liability company ("BSH
LLC"), Strategic Interactive Group, LLC, a Delaware limited liability company
("SIG LLC") and Xxxxxxx Xxxxxxxx Xxxxxxxx Co., a Massachusetts business trust
("Parent").
W I T N E S S E T H:
WHEREAS, BSH LLC is a limited liability company duly formed and validly
existing under the laws of the State of Delaware, and BSH Holding LLC, a
Delaware limited liability company, is the sole member and 100% beneficial owner
of BSH LLC;
WHEREAS, SIG LLC is a limited liability company duly formed and validly
existing under the laws of the State of Delaware, and SIG Holding LLC, a
Delaware limited liability company, is the sole member and 100% beneficial owner
of SIG LLC;
WHEREAS, Parent is a business trust duly organized and validly existing
under the laws of The Commonwealth of Massachusetts and is (i) the sole member
and 100% beneficial owner of BSH Holding, and (ii) the sole member and 100%
beneficial owner of SIG Holding;
WHEREAS, upon the terms and subject to the conditions of this Agreement and
in accordance with the Delaware Limited Liability Company Act (the "Act"), the
Limited Liability Company Agreement of BSH LLC dated November 5, 1998 (the "BSH
LLC Agreement") and the Limited Liability Company Agreement of SIG LLC dated
November 5, 1998 (the "SIG LLC Agreement"), BSH LLC and SIG LLC desire to enter
into a business combination transaction pursuant to which SIG LLC will merge
with and into BSH LLC, with BSH LLC surviving, which merger is intended to
constitute a merger of one disregarded entity with another for tax purposes
under the Internal Revenue Code of 1986, as amended; and
WHEREAS, each of BSH Holding LLC, as the sole member of BSH LLC, and SIG
Holding LLC, as sole member of SIG LLC, has adopted and approved this Agreement
and the Merger (as hereinafter defined) in accordance with Section 209 of the
Act and, as the case may be, the BSH LLC Agreement and the SIG LLC Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. The Merger. In accordance with the relevant provisions of the Act, at
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the Effective Time (as hereinafter defined), SIG LLC shall be merged with and
into BSH LLC (the "Merger"). As a result of and following the Merger, the
separate existence of the SIG LLC shall cease to exist and BSH LLC shall
continue as the surviving entity of the Merger (the
"Surviving Company"), and all identity, rights, powers, privileges and assets,
and all obligations, liabilities and debts of SIG LLC shall be vested in the
Surviving Company in accordance with Section 209(g) of the Act.
2. The Effective Time. The Merger shall become effective (the "Effective
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Time") immediately upon the later of (i) the date on which a Certificate of
Merger, together with any other documents required to be filed to consummate the
Merger, is filed with and accepted by the Secretary of State of the State of
Delaware, or (ii) any future effective date or time of the Merger stated in the
Certificate of Merger filed with and accepted by the Secretary of State of the
State of Delaware.
3. Certificate of Formation. The Certificate of Formation of BSH LLC, as
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in effect on the Effective Date, shall be the Certificate of Formation of the
Surviving Company until thereafter changed or amended as provided therein or by
applicable law.
4. Limited Liability Company Operating Agreement. The Limited Liability
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Company Operating Agreement of BSH LLC as in effect on the Effective Date and
attached hereto as Exhibit A (the "Surviving Company Operating Agreement") shall
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be the Limited Liability Company Operating Agreement of the Surviving Company
until thereafter changed or amended as provided therein or by applicable law.
5. Purposes. The purposes of the Surviving Company shall be as set forth
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in the Surviving Company Operating Agreement as in effect on the date hereof
until such time as such purposes may be changed or amended as provided in the
Surviving Company Operating Agreement and by applicable law.
6. Officers of Surviving Company. The officers of BSH LLC on the
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Effective Date shall be the officers of the Surviving Company in accordance with
the Surviving Company Operating Agreement and the delegation of authority
thereunder by the sole member of BSH LLC, until successors therefor are duly
appointed and qualified, or such delegation is revoked, as the case may be.
7. LLC Membership Interests.
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As of the Effective Date, all of membership interest of SIG LLC, and
any certificate evidencing the same, shall be canceled, and the membership
interests in the Surviving Company outstanding immediately prior to the Merger
shall remain issued and outstanding from and after the Effective Date.
8. Additional Actions. If, at any time on and after the Effective Time,
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the Surviving Company or its successors and assigns shall consider or be advised
that any further assignments or assurances in law or any organizational or other
acts are necessary or desirable (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Company title to and
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possession of any property or right of SIG LLC acquired or to be acquired by
reason of, or as a result of, the Merger, or (b) otherwise to carry out the
purposes of this Agreement, SIG LLC and its sole member and its officers shall
be deemed to have granted to the Surviving Company an irrevocable power of
attorney to execute and deliver all such proper deeds, assignments and
assurances in law and to do all acts necessary or proper to vest, perfect or
confirm title to and possession of such property or rights in the Surviving
Company and otherwise to carry out the purposes of this Agreement.
9. Termination. Notwithstanding the prior approval of this Agreement by
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the sole member of BSH LLC and the sole member of SIG LLC (all collectively, the
"Members") this Agreement may be terminated by any of the Members for any reason
and at any time prior to the Effective Time.
10. Amendment. Notwithstanding the prior approval of this Agreement by
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the Members, any term or provision of this Agreement may be amended by the
Members for any reason and at any time prior to the Effective Time; provided,
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however, that any amendment which directly, materially and adversely affects any
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right specifically granted hereunder to a particular party in a manner different
than other parties shall not be effective unless such party has consented to
such amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
Plan of Merger as of the date first set forth above.
XXXXXXX XXXXXXXX XXXXXXXX, LLC
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
STRATEGIC INTERACTIVE GROUP, LLC
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
XXXXXXX XXXXXXXX XXXXXXXX CO.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Xxxxxxx Xxxxxxxx Xxxxxxxx Co. (the "Trust") is a
Massachusetts business trust. A copy of the
Trust's Declaration of Trust, as the same may be
amended and/or restated from time to time, is on
file with the Secretary of State of The
Commonwealth of Massachusetts. Each of the parties
hereto acknowledges and agrees that this Agreement
is not executed on behalf of the trustees or
officers of the Trust as individuals or, in the
event the trustee is a corporation or other
entity, on behalf of the individual owners of such
corporation or entity, and the obligations of this
Agreement are not binding upon any of the
trustees, officers or shareholders of the Trust,
or any of their respective trustees, officers,
directors, partners, members or shareholders,
individually, but are binding only upon the assets
and property of the Trust. Each of the parties
hereto agrees that no shareholder, trustee or
officer of the Trust, or any of their respective
trustees, officers, directors, partners, members
and shareholders, may be held personally liable or
responsible for any obligations of the Trust
arising out of this Agreement. With respect to
obligations of the Trust arising out of this
Agreement, each of the parties hereto shall look
for payment or satisfaction of any claim solely to
the assets and property of the Trust.
Exhibit A
Xxxxxxx Xxxxxxxx Xxxxxxxx, LLC
Limited Liability Company Agreement
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This Agreement is made as of November __, 1998 by and between Xxxxxxx
Xxxxxxxx Xxxxxxxx, LLC, a Delaware limited liability company (the "LLC"), and
Xxxxxxx Xxxxxxxx Xxxxxxxx Co., a Massachusetts business trust with a business
office at The Prudential Tower, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, as the
sole member (the "Member") of the LLC.
WHEREAS, the LLC was formed as a limited liability company under the
Delaware Limited Liability Company Act (as amended from time to time, the "Act")
on November __, 1998; and
WHEREAS, the Member wishes to set out fully its rights, obligations and
duties regarding the LLC and its assets and liabilities.
NOW, THEREFORE, in consideration of the mutual covenants expressed herein,
the parties hereby agree as follows:
1. Purpose; Powers. The principal business activity and purposes of the
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LLC shall initially be to provide direct marketing and consulting services, and
to engage in any business related thereto or useful in connection therewith, as
well as any and all other activities permitted under the Act. The LLC shall
possess and may exercise all the powers and privileges granted by the Act, any
other law or this Agreement, together with any powers incidental thereto, and
may take any other action not prohibited under the Act or other applicable law,
so far as such powers and actions are necessary or convenient to the conduct,
promotion or attainment of the business, purposes or activities of the LLC.
2. Principal Place of Business. The principal office and place of
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business of the LLC shall be located at The Prudential Tower, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The Member may change the principal office
or place of business of the LLC at any time and may cause the LLC to establish
other offices or places of business in various jurisdictions and appoint agents
for service of process in such jurisdictions. The initial registered agent of
the LLC shall be The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. The registered office of the LLC in the State of Delaware, as
required by Section 18-104 of the Act, shall be The Corporation Trust Company at
such address.
3. Fiscal Year. The fiscal year end of the LLC shall be December 31.
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4. Capital Contributions. The contribution made by the Member to the
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capital of the LLC as of the date hereof and the percentage interest of the
Member in the profits and losses of the LLC are as follows:
Initial
Capital Percentage
Member Contribution Interest
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Xxxxxxx Xxxxxxxx Xxxxxxxx Co. $10.00 100%
Future contributions to capital, if any, shall be made in such amounts and at
such times as the Member may determine.
5. Capital Account; Distributions. A capital account shall be
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established for the Member and shall be maintained in accordance with applicable
regulations under Section 704(b) of the Internal Revenue Code of 1986, as
amended (the "Code"). A capital account shall be maintained for the sole
purpose of allocating income, gain, loss and deduction to the Member and shall
have no effect on the amount of any distributions to the Member in liquidation
or otherwise.
6. Certificates.
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(a) General. At the option of the Member, interests in the LLC may be
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represented by one or more certificates, in such form as may from time to time
be prescribed by the Manager. Such certificate shall be signed by the Member or
an officer of the Member on the Member's behalf, which signature may be a
facsimile thereof. In case the Member or officer of the Member who has signed
or whose facsimile signature has been placed on such certificate shall have
ceased to be the Member or an officer of the Member, as the case may be, before
such certificate is issued, it may be issued by the LLC with the same effect as
if such person were the Member or an officer of the Member at the time of its
issue. The certificate shall contain a legend with respect to any restrictions
on transfer.
(b) Application of Article 8 of the Uniform Commercial Code. The LLC
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hereby irrevocably elects that all interests in the LLC shall be securities
governed by Article 8 of the Uniform Commercial Code in effect in the State of
Delaware. Each certificate, if any, evidencing an interest in the LLC shall
bear the following legend:
"This Certificate evidences a membership interest in Xxxxxxx Xxxxxxxx
Xxxxxxxx, LLC and shall be a security for purposes of Article 8 of the
Uniform Commercial Code in effect in the State of Delaware."
No change to this provision shall be effective until all outstanding
certificates have been surrendered for cancellation and any new certificates
thereafter issued shall not bear the foregoing legend.
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7. Management.
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(a) General. The management of the LLC's business and affairs shall
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be vested in the Member. The Member shall have full power and authority (a) to
take any action and execute any documents on behalf of the LLC, and (b) to
appoint such officers, representatives, or agents for the LLC (each of whom
shall serve in such capacity until the Member removes such person or appoints a
successor for such person), and to grant to any such officer, representative or
agent the power and authority to take such action and execute such documents on
behalf of the LLC as may be determined by the Member. In addition, the Member
may enter into one or more management agreements with one or more third party
managers, and assign such managers the rights, duties and obligations as
provided in such management agreement. Any delegation of powers and duties
pursuant to this Section 7 may be revoked at any time by the Member. Any
officer of the LLC may be removed with or without cause at any time by the
Member.
(b) Officers of the LLC. Unless the Member decides otherwise, the
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officers of the Member from time to time shall have the authority to act on
behalf of the Member in managing and conducting the business of the LLC as
provided for in this Section 7. Unless the Member decides otherwise, if an
official title is one commonly used for officers of a business corporation
formed under the Delaware General Corporation Law, the assignment or incumbency
of such title to a person who serves as such officer of the Member shall
constitute assignment of the same title, and delegation of the authorities and
duties normally associated with that office, to such person as such officer of
the LLC.
8. Limitation of Liability. Except as otherwise provided in the Act, the
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Member shall not be obligated personally for any debt, obligation or liability
of the LLC, whether arising in contract, tort or otherwise, solely by reason of
being a member of the LLC. The Member shall have no responsibility to restore
any negative balance in its capital account. The Member shall not be personally
liable to the LLC for acting in good faith reliance upon the provisions of this
Agreement, or for breach of any fiduciary or other duty that does not involve
(i) a breach of the duty of loyalty to the LLC, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, or (iii) a transaction from which the Member derived an improper personal
benefit.
9. Other Business. The Member may engage or have an interest in other
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business ventures which are similar to or competitive with the business of the
LLC, and the pursuit of such ventures, even if competitive, shall not be deemed
wrongful or improper or give the LLC any rights with respect thereto. The
Member shall not be obligated to present an investment opportunity to the LLC
even if it is similar or consistent with the business of the LLC, and it shall
have a right to take for its own account or recommend to others any such
investment opportunity.
10. Indemnification. To the fullest extent permitted by law, the LLC
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shall indemnify the Member and any and all officers and agents of the LLC and
the officers,
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directors, trustees, partners, members and shareholders of any such person which
is a corporation, trust, partnership, limited liability company or other entity,
against any and all liability incurred and/or for any act performed by them in
good faith within the scope of the authority conferred on them by this
Agreement, and/or for any act in good faith omitted to be performed by them
(including, without limitation, reasonable legal and other professional fees and
expenses), except for their gross negligence or willful misconduct.
11. Term. The LLC shall have a perpetual existence and shall not
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terminate upon the resignation, bankruptcy or dissolution of the Member or the
occurrence of any other event which terminates the continued membership of the
Member in the LLC; provided, however, the LLC shall terminate upon the first to
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occur of the following:
(a) the written consent of the Member; or
(b) the entry of a decree of judicial dissolution under Section 18-802
of the Act.
Upon any such dissolution, the Member shall proceed to liquidate the LLC and
wind up its affairs and make final distributions as provided in the Act. The
cost of dissolution and liquidation shall be borne as an expense of the LLC. On
completion of the liquidation, the LLC shall be terminated and the Member (or
such other person or persons as the Act may require or permit) shall file a
Certificate of Cancellation with the Secretary of State of the State of Delaware
under the Act and take such other actions as may be necessary to terminate the
existence of the LLC and cancel any other filings as appropriate.
12. Amendment. This Agreement may only be amended pursuant to an
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instrument in writing signed by the Member.
13. Governing Law. This Agreement is governed by and shall be construed
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in accordance with the laws of the State of Delaware, exclusive of its conflict-
of-laws principles.
14. Entire Agreement. This Agreement embodies the entire agreement and
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understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
MEMBER:
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Xxxxxxx Xxxxxxxx Xxxxxxxx Co.,
a Massachusetts business trust
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
LLC:
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Xxxxxxx Xxxxxxxx Xxxxxxxx, LLC,
a Delaware limited liability company
By: Xxxxxxx Xxxxxxxx Xxxxxxxx Co.,
a Massachusetts business trust, as
sole Member
By:__________________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
