Agreement and Plan of Merger - ARAMARK Corp. and ARAMARK Worldwide Corp.
FORM OF AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER is dated as of __________, 2001
(this "Agreement") among ARAMARK Corporation ("ARAMARK") and ARAMARK Worldwide
Corporation ("AWC"), each a Delaware corporation.
RECITALS
A. ARAMARK is a corporation duly organized and existing under the
laws of the State of Delaware. AWC is a corporation duly organized and existing
under the laws of the State of Delaware and a wholly owned subsidiary of
ARAMARK.
B. The respective boards of directors of ARAMARK and AWC have
determined that it is advisable and in the best interests of each corporation
that ARAMARK merge with and into AWC (the "Merger") upon the terms and subject
to the conditions of this Agreement.
C. The respective boards of directors of ARAMARK and AWC have been
duly advised of the terms and conditions of the Merger and, by resolutions duly
adopted, have authorized, approved and adopted this Agreement. The stockholders
of ARAMARK will approve and adopt this Agreement at a special meeting of
stockholders to be held on __________, 2001. ARAMARK, the sole stockholder of
AWC, will approve and adopt this Agreement by written consent without a meeting.
D. The parties intend by this Agreement to effect a "reorganization"
under Section 368 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, ARAMARK and AWC hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.01 The Merger. Upon the terms and subject to the
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conditions of this Agreement, and in accordance with the relevant provisions of
the Delaware General Corporation Law (the "DGCL"), ARAMARK will merge with and
into AWC upon the Effective Time, as defined in this Agreement. AWC will be the
surviving corporation in the Merger (the "Surviving Corporation"). Upon the
Effective Time, the separate existence of ARAMARK will cease, and the Surviving
Corporation will succeed, without other transfer, to all of the rights and
property of ARAMARK, and will be subject to all of the debts and liabilities of
ARAMARK, as provided for in Section 259 of the DGCL. On and after the Effective
Time, the Surviving Corporation will carry on its business with the assets of
ARAMARK, as well as with the assets of the Surviving Corporation.
Section 1.02 Effective Time. As soon as practicable following the
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satisfaction or waiver of the conditions set forth in Article II, the Merger
will be consummated by filing a
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certificate of merger (the "Certificate of Merger") with the Secretary of State
of the State of Delaware in accordance with the DGCL. The Merger will become
effective when the Certificate of Merger is filed or such later time as is set
forth in the Certificate of Merger. The time when the Merger becomes effective
is called the "Effective Time".
Section 1.03 Certificate of Incorporation and By-Laws. The
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Certificate of Incorporation of AWC shall be amended at the Effective Time to
read in its entirety as set forth in Exhibit A hereto. The Certificate of
Incorporation of AWC, as so amended, and the By-Laws of AWC in effect at the
Effective Time will be the Certificate of Incorporation and By-Laws of the
Surviving Corporation and will remain in effect until changed or amended as
provided therein or by applicable law. The name of the Surviving Corporation
will be ARAMARK Corporation.
Section 1.04 Directors and Officers. The directors of AWC at the
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Effective Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation until the earlier of their resignation or removal or until
their respective successors are duly elected and qualified. The officers of
ARAMARK at the Effective Time shall, from and after the Effective Time, be the
officers of the Surviving Corporation until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified.
Section 1.05 Effect on Capital Stock. At the Effective Time, by
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virtue of the Merger and without any action on the part of the holder thereof:
(a) Each share of Class A common stock, par value $0.01 per share, of
ARAMARK issued and outstanding immediately before the Effective Time (other
than shares of ARAMARK Class A common stock held by Dissenting Stockholders
(as defined in Section 1.05(g)) will convert into twenty shares of AWC
Class A-1 common stock, par value $0.01 per share, and such shares of AWC
Class A-1 common stock will be reflected on the stock ledger of AWC as
issued and outstanding, fully paid and nonassessable, uncertificated
shares. To the fullest extent authorized by law, all instructions, orders
and notices recorded on the ARAMARK stock ledger in respect of such shares
of ARAMARK Class A common stock will be recorded on the AWC stock ledger in
respect of such shares of AWC Class A-1 common stock; in particular, to the
fullest extent authorized by law, instructions in respect of uncertificated
shares of ARAMARK Class A common stock will become instructions in respect
of uncertificated shares of AWC Class A-1 common stock, and notices in
respect of such shares of ARAMARK Class A common stock under Section 3.02
of the Stockholders' Agreement (as defined herein) will become instructions
in respect of uncertificated shares of AWC Class A-1 common stock, such
that perfected security interests made in accordance with Section 3.02 of
the Stockholders' Agreement shall be unaffected by the Merger.
(b) Each share of Class B common stock, par value $0.01 per share, of
ARAMARK issued and outstanding immediately before the Effective Time will
convert into two shares of AWC Class A common stock, divided as equally as
possible among (i) shares of validly issued, fully paid and non-assessable
Class A-1 common stock, par
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value $0.01 per share, of AWC, (ii) shares of validly issued, fully paid
and non-assessable Class A-2 common stock, par value $0.01 per share, of
AWC, and (iii) shares of validly issued, fully paid and non-assessable
Class A-3 common stock, par value $0.01 per share, of AWC, and such shares
of AWC Class A-1 common stock, AWC Class A-2 common stock and AWC Class A-3
common stock will be reflected on the stock ledger of AWC as uncertificated
shares; provided that if, with respect to any stockholder, such division
results in an unequal allocation of whole shares of AWC Class A-1 common
stock, AWC Class A-2 common stock and AWC Class A-3 common stock, then such
one or two whole shares as must be unequally allocated among shares of AWC
Class A-1 common stock, AWC Class A-2 common stock and AWC Class A-3 common
stock shall be so allocated by lot. To the fullest extent authorized by
law, all instructions, orders and notices recorded on the ARAMARK stock
ledger in respect of such shares of ARAMARK Class B common stock will be
recorded on the AWC stock ledger in respect of such shares of AWC Class A-1
common stock, AWC Class A-2 common stock and AWC Class A-3 common stock; in
particular, to the fullest extent authorized by law, instructions in
respect of uncertificated shares of ARAMARK Class B common stock will
become instructions in respect of uncertificated shares of AWC Class A-1
common stock, AWC Class A-2 common stock and AWC Class A-3 common stock,
and notices in respect of such shares of ARAMARK Class B common stock under
Section 3.02 of the Stockholders' Agreement (as defined herein) will become
instructions in respect of uncertificated shares of AWC Class A-1 common
stock, AWC Class A-2 common stock and AWC Class A-3 common stock, such that
perfected security interests made in accordance with Section 3.02 of the
Stockholders' Agreement shall be unaffected by the Merger.
(c) As of the Effective Time, all shares of ARAMARK Class A common
stock and ARAMARK Class B Common Stock will no longer be outstanding and
will automatically be canceled and retired and will cease to exist, and
each holder of a certificate representing any such shares of ARAMARK common
stock will cease to have any rights with respect thereto, and all such
certificates previously representing shares of ARAMARK common stock will be
cancelled and be null and void and of no further effect.
(d) Each share of common stock, par value $0.01 per share, of AWC
issued and outstanding immediately before the Effective Time will no longer
be outstanding and will automatically be canceled and retired and will
cease to exist, and each holder of a
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certificate representing any such shares of AWC common stock will cease to
have any rights with respect thereto.
(e) Each option or other right to purchase or otherwise acquire
shares of ARAMARK Class B common stock pursuant to ARAMARK's stock
ownership plans and programs granted and outstanding immediately before the
Effective Time will convert into an option or right to acquire, on the same
terms and conditions as were applicable under the ARAMARK stock option or
right to purchase, two (2) shares of AWC common stock with the number of
shares to be received by each holder pursuant to such option or other right
to purchase divided among shares of AWC Class A-1 common stock, AWC Class
A-2 common stock and AWC Class A-3 common stock in the manner set forth in
Section 1.05(b) hereto at a price per share equal to one-half the exercise
price of each option or other right to purchase or otherwise acquire shares
of ARAMARK common stock under such plans and programs immediately before
the Effective Time. The parties will take all action necessary to
implement the provisions of this Section 1.05(e), including, if necessary,
to amend any agreement or plan providing an option or other right to
acquire shares of ARAMARK common stock, to ensure that after giving effect
to the foregoing no such option or right will be exercisable for ARAMARK
common stock following the Effective Time.
(f) Each right to receive shares of ARAMARK Class B common stock
pursuant to ARAMARK's Stock Unit Retirement Plan (the "SURP") outstanding
immediately before the Effective Time will convert into a right to receive,
on the same terms and conditions as were applicable under the ARAMARK SURP,
two (2) shares of AWC Class A common stock, divided among AWC Class A-1
common stock, AWC Class A-2 common stock and AWC Class A-3 common stock in
the manner provided in Section 1.05(b) hereto. Each right to receive
shares of ARAMARK series D preferred stock pursuant to the ARAMARK SURP
outstanding immediately before the Effective Time will convert into a right
to receive, on the same terms and conditions as were applicable under the
ARAMARK SURP, an equal number of shares of ARAMARK series D preferred
stock. The parties will take all action necessary to implement the
provisions of this Section 1.05(f), including, if necessary, to amend any
agreement or plan providing a right to acquire shares of ARAMARK common or
preferred stock, to ensure that after giving effect to the foregoing no
such right will exist for ARAMARK common or preferred stock following the
Effective Time.
(g) Notwithstanding anything in this Agreement to the contrary but
only to the extent required by the DGCL, shares of ARAMARK Class A common
stock that are issued and outstanding immediately prior to the Effective
Time and are held by holders of ARAMARK Class A common stock who comply
with all the provisions of the DGCL concerning the right of holders of
ARAMARK Class A common stock to an appraisal of their shares pursuant to
Section 262 of the DGCL ("Section 262") ("Dissenting Stockholders") shall
not be converted into AWC Class A-1 common stock as provided in Section
1.05(a) or have the entries in connection with therewith made in the stock
ledger of the Surviving Corporation but shall be entitled to receive such
consideration as may be determined to be due such Dissenting Stockholder
pursuant to
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Section 262; provided, however, that (i) if any Dissenting Stockholder
shall subsequently deliver a written withdrawal of his or her demand for
appraisal (with the written approval of the Surviving Corporation, if such
withdrawal is not tendered within 60 days after the Effective Time), or
(ii) if any Dissenting Stockholder fails to establish and perfect his, her
or its entitlement to appraisal rights as provided by applicable law, or
(iii) if within 120 days of the Effective Time neither any Dissenting
Stockholder nor the Surviving Corporation has filed a petition demanding a
determination of the value of all shares of ARAMARK Class A common stock
outstanding at the Effective Time and held by Dissenting Stockholders in
accordance with applicable law, then such Dissenting Stockholder or
Stockholders, as the case may be, shall forfeit the right to appraisal of
such shares and such shares shall thereupon be deemed to be subject to the
provisions of Section 1.05(a) above.
ARTICLE II
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 2.01 Conditions to Each Party's Obligation to Effect the
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Merger. The respective obligations of each party to effect the Merger are
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subject to the satisfaction or waiver, prior to the Effective Time, of the
following conditions:
(a) more than 50% of the outstanding voting power of ARAMARK common
stock entitled to vote, voting together as a single class, have voted to
adopt this Agreement;
(b) no statute, rule, regulation, executive order, decree, injunction
or other order has been enacted, entered, promulgated or enforced by any
court or governmental authority that is in effect and has the effect of
prohibiting the consummation of the Merger;
(c) all approvals and consents necessary or desirable, if any, in
connection with consummation of the Merger have been obtained;
(d) the number of shares of ARAMARK Class A common stock held by
Dissenting Stockholders who have not voted in favor of or consented to the
Merger and who are entitled to demand and have delivered a written demand
for appraisal of such shares in the time and manner provided in Section 262
of the DGCL and who have not failed to perfect or effectively withdrawn or
lost their rights to appraisal and payment under Section 262 shall not
exceed 5% of the issued and outstanding shares of ARAMARK Class A common
stock immediately prior to the Effective Time;
(e) (i) Management Investors who hold, in combination with their
Permitted Transferees, at least a majority of the ARAMARK common stock held
by stockholders that are Management Investors and their Permitted
Transferees and (ii) holders of at least three-fourths of the ARAMARK
common stock held by stockholders that are Institutional and Individual
Investors, taken as a whole, have executed a written consent to the
amendment of the Amended and Restated Stockholders' Agreement, dated as of
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December 14, 1994, among ARAMARK and the parties identified on the books of
ARAMARK as "Management Investors" or their "Permitted Transferees" or as
"Individual Investors" or "Institutional Investors" (the "Stockholders'
Agreement") to provide that the Stockholders' Agreement will terminate at the
Effective Time; and
(f) ARAMARK Worldwide Corporation simultaneously has consummated an
initial public offering of shares of its Class B common stock.
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendment; Waiver. At any time before the Effective
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Time, ARAMARK and AWC may, to the extent permitted by the DGCL, by written
agreement amend, modify or supplement any provision of this Agreement.
Section 3.02 Entire Agreement; Assignment. This Agreement
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constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. Neither this Agreement nor any right, interest or
obligation under this Agreement may be assigned, in whole or in part, by
operation of law or otherwise, without the prior written consent of the other
parties.
Section 3.03 Governing Law. This Agreement will be governed by and
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construed in accordance with the substantive laws of the State of Delaware
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto.
Section 3.04 Parties in Interest. Nothing in this Agreement, express
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or implied, is intended to confer upon any other person any rights or remedies
of any nature whatsoever under or by reason of this Agreement.
Section 3.05 Counterparts. This Agreement may be executed in one or
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more counterparts, each of which will be deemed to be an original, but all of
which will constitute one and the same agreement, and will become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties.
Section 3.06 Abandonment. At any time before the Effective Time,
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this Agreement may be terminated and the Merger may be abandoned by the board of
directors of ARAMARK or AWC.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its respective officers thereunto duly
authorized, all as of the day and year first above written.
ARAMARK CORPORATION,
a Delaware corporation
By:
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ARAMARK WORLDWIDE CORPORATION,
a Delaware corporation
By:
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