1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), made
this 19th day of June, 1998, by and between ▇▇▇▇▇ & Co., Inc., a New York
corporation ("Bowne-New York"), and ▇▇▇▇▇ & Co., Inc., a Delaware corporation
and a wholly-owned subsidiary of Bowne-New York ("▇▇▇▇▇-Delaware") (the two
corporate parties hereto being sometimes collectively referred to as the
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Bowne-New York and Bowne-
Delaware have determined that the proposed merger (the "Merger") of Bowne-New
York with Bowne-Delaware upon the terms hereinafter set forth is advisable and
in the best interests of the shareholders of such corporations and the Boards of
Directors of Bowne-New York and ▇▇▇▇▇-Delaware have adopted and approved this
Agreement and both such Boards of Directors have directed that this Agreement be
submitted to the shareholders of Bowne-New York and ▇▇▇▇▇-Delaware for their
approval; and
WHEREAS, the Merger is intended to constitute a reorganization
within the meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986;
and
WHEREAS, Bowne-New York and ▇▇▇▇▇-Delaware, as appropriate,
intend to take all such action as may be necessary or appropriate as and when
required by the provisions of this Agreement, in order to consummate the Merger;
and
WHEREAS, the authorized capital stock of Bowne-New York
consists solely of (i) 60,000,000 shares of common stock, par value $.01 per
share, of which 18,409,983 shares are issued and outstanding as of the date
hereof and (ii) 1,000,000 shares of preferred stock, par vale $.01 per share, of
which no shares are issued and outstanding as of the date hereof; and
WHEREAS, the authorized capital stock of ▇▇▇▇▇-Delaware
consists solely of (i) 60,000,000 shares of common stock, par value $.01 per
share, of which 100 shares are issued and outstanding as of the date hereof, all
of which shares are owned by Bowne-New York and (ii) 1,000,000 shares of
preferred stock, par vale $.01 per share, of which no shares are issued and
outstanding as of the date hereof;
NOW, THEREFORE, the Constituent Corporations do hereby agree
to merge on the terms and conditions herein provided, as follows:
2
ARTICLE I
GENERAL
1.1 Agreement to Merge. The parties to this Agreement agree to
effect the Merger herein provided for, subject to the terms and conditions set
forth herein.
1.2 Effective Time of the Merger. The Merger shall be
effective in accordance with the laws of the States of New York and Delaware.
The date and time the Merger becomes effective is referred to as the "Effective
Time of the Merger".
1.3 Surviving Corporation. At the Effective Time of the
Merger, Bowne-New York shall be merged with and into Bowne-Delaware, and
Bowne-Delaware shall be the surviving corporation, governed by the laws of the
State of Delaware (hereinafter sometimes called the "Surviving Corporation").
The name of the Surviving Corporation will be ▇▇▇▇▇ & Co., Inc.
1.4 Certificate of Incorporation and Bylaws. At the Effective
Time of the Merger, the Certificate of Incorporation and Bylaws of
▇▇▇▇▇-Delaware in effect immediately prior to the Effective Time of the Merger
shall be the Certificate of Incorporation and Bylaws of the Surviving
Corporation, subject always to the right of the Surviving Corporation to amend
its Certificate of Incorporation and Bylaws in accordance with the laws of the
State of Delaware and the provisions of the Certificate of Incorporation.
1.5 Directors. The directors of Bowne-New York in office at
the Effective Time of the Merger shall be and constitute the directors of the
Surviving Corporation, each holding the same directorship in the Surviving
Corporation as he or she held in Bowne-New York for the terms elected and/or
until their respective successors shall be elected or appointed and qualified.
The directors of the Surviving Corporation shall continue to be members of the
same class of directors as they were in Bowne-New York, and the time for
election of each class of directors for the Surviving Corporation shall be the
same as it was for the corresponding class of directors of Bowne-New York.
1.6 Officers. The officers of Bowne-New York in office at the
Effective Time of the Merger shall be and constitute the officers of the
Surviving Corporation, each holding the same office in the Surviving Corporation
as he or she held in Bowne-New York for the terms elected and/or until their
respective successors shall be elected or appointed and qualified.
1.7 Effect of the Merger. On and after the Effective Time of
the Merger, the separate existence of Bowne-New York and ▇▇▇▇▇-Delaware shall
cease and the Surviving Corporation shall succeed, without further action, to
all the properties and assets of Bowne-New York and Bowne-Delaware of every
kind, nature and description and to Bowne-New York's and ▇▇▇▇▇-Delaware's
business as a going concern. The Surviving Corporation shall also succeed to all
rights, title and interests to all real estate and other property owned by
2
3
▇▇▇▇▇-New York or ▇▇▇▇▇-Delaware without reversion or impairment, without
further act or deed, and without any transfer or assignment having occurred, but
subject to any existing liens thereon. All liabilities and obligations of
Bowne-New York or Bowne-Delaware shall become the liabilities and obligations of
the Surviving Corporation, and any proceedings pending against Bowne-New York or
Bowne-Delaware will be continued as if the Merger had not occurred.
1.8 Further Assurances. Bowne-New York hereby agrees that at
any time, or from time to time, as and when requested by the Surviving
Corporation, or by its successors and assigns, it will execute and deliver, or
cause to be executed and delivered in its name by its last acting officers, or
by the corresponding officers of the Surviving Corporation, all such
conveyances, assignments, transfers, deeds or other instruments, and will take
or cause to be taken such further or other action and give such assurances as
the Surviving Corporation, its successors or assigns may deem necessary or
desirable in order to evidence the transfer, vesting of any property, right,
privilege or franchise or to vest or perfect in or confirm to the Surviving
Corporation, its successors and assigns, title to and possession of all the
property, rights, privileges, powers, immunities, franchises and interests
referred to in this Article I and otherwise to carry out the intent and purposes
thereof.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 Bowne-New York Capital Stock. At the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of Bowne-New
York, Bowne-Delaware or the holders of any of the common stock ("Bowne-New York
Common Stock") of Bowne-New York, each issued and outstanding share of Bowne-New
York Common Stock and each share of Common Stock of Bowne-New York held in the
treasury of Bowne-New York shall be converted into one share of Bowne-Delaware
Common Stock.
2.2 Bowne-Delaware Capital Stock. At the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of Bowne-New
York, ▇▇▇▇▇-Delaware or the holders of any of the common stock ("Bowne-Delaware
Common Stock") of Bowne-Delaware, each issued and outstanding share of
▇▇▇▇▇-Delaware Common Stock shall be cancelled.
2.3 Series B Junior Participating Preferred Stock.
▇▇▇▇▇-Delaware agrees to adopt a Rights Agreement prior to the Effective Time
and substantially similar to the Rights Agreement, dated as of January 30, 1997,
between Bowne-New York and The Bank of New York providing for the issuance of
preferred share purchase rights (the "Rights") with each share of Bowne-Delaware
Common Stock issued in the Merger such that the holders of Bowne-Delaware Common
Stock will have effectively the same Rights after the Merger that the holders of
Bowne-New York Common Stock had immediately prior to the Merger.
3
4
ARTICLE III
TERMINATION AND AMENDMENT
3.1 Termination. This Agreement may be terminated and
abandoned at any time prior to the Effective Time of the Merger, whether before
or after action thereon by the shareholders of the Constituent Corporations, by
the mutual written consent of the Boards of Directors of Bowne-New York and
▇▇▇▇▇-Delaware.
3.2 Consequences of Termination. In the event of the
termination and abandonment of this Agreement pursuant to the provisions of
Section 3.1 hereof, this Agreement shall be of no further force or effect.
3.3 Modification, Amendment, Etc. Any of the terms or
conditions of this Agreement may be waived at any time, whether before or after
action thereon by the shareholders of the Constituent Corporations, by the party
entitled to the benefits thereof, and this Agreement may be modified or amended
at any time, whether before or after action thereon by the shareholders of the
Constituent Corporations, to the full extent permitted by the corporate laws of
the States of New York and Delaware. Any waiver, modification or amendment shall
be effective only if reduced to writing and executed by the duly authorized
representatives of the Constituent Corporations.
ARTICLE IV
MISCELLANEOUS
4.1 Expenses. The Surviving Corporation shall pay all expenses
of carrying this Agreement into effect and accomplishing the Merger herein
provided for.
4.2 Headings. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provisions of
this Agreement.
4.3 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to
be an original instrument, and all such counterparts together shall constitute
only one original.
4.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflicts of laws principals thereof.
4
5
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by an officer duly authorized thereunto
as of the date first above written.
▇▇▇▇▇ & CO., INC., a New York corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its Senior Vice President and Chief Financial Officer
▇▇▇▇▇ & CO., INC., a Delaware corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its Senior Vice President and Chief Financial Officer
5
