EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of March 31,
2003, by and among West Corporation, a Delaware corporation ("West"), West
Direct, Inc., a Delaware corporation ("WDI"), WD Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of West ("New West"), and each of the
stockholders of WDI whose names are set forth on the signature page hereto (the
"WDI Stockholders").
WHEREAS, the parties hereto desire to consummate a merger upon the terms
and subject to the conditions set forth herein;
WHEREAS, the WDI Stockholders hold 100% of the issued and outstanding
capital stock of WDI;
WHEREAS, the parties hereto intend that WDI merge with and into New West
and that New West continue as the surviving corporation in such merger (the
"Merger"), upon the terms and subject to the conditions set forth herein and in
accordance with the laws of the State of Delaware;
WHEREAS, the Board of Directors of each of West, WDI and New West, by
resolution at meetings held on March 31, 2003, have each approved the Merger
upon the terms and subject to the conditions set forth herein; and
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
Merger
------
Section 1.1 Merger. Upon the terms and subject to the conditions set forth
in this Agreement and in accordance with Section 251 of the Delaware General
Corporation Law (the "DGCL"), WDI shall be merged with and into New West at the
Effective Time of Merger (as defined in Section 1.2). Following the Merger, the
separate corporate existence of WDI shall cease and New West shall be the
surviving corporation and continue its corporate existence under the laws of the
State of Delaware.
Section 1.2 Effective Time of the Merger. The Merger shall become effective
at the date and time (the "Effective Time of Merger") when this Agreement or a
properly executed certificate of merger is duly filed with the Secretary of
State of the State of Delaware in accordance with the DGCL. The parties hereto
shall cause this Agreement or the certificate of merger to be executed and filed
as aforesaid upon the satisfaction or waiver of the conditions contained in this
Agreement.
Section 1.3 Effects of Merger. The Merger shall have the effects set forth
in Section 259 of the DGCL.
Section 1.4 Further Assurances. From time to time, as and when required by
New West or by its successors or assigns, there shall be executed and delivered
on behalf of WDI such deeds and other instruments, and there shall be taken or
caused to be taken by them, all such further and other action, as shall be
appropriate, advisable or necessary in order to vest, perfect or confirm, of
record or otherwise, in New West, the title to and possession of all property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of WDI, and otherwise to carry out the purpose of this Agreement, and
the officers and directors of New West are fully authorized in the name and on
behalf of WDI or otherwise, to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
Section 1.5 Tax-Free Reorganization. The parties hereto intend that the
Merger qualify as a reorganization within the meaning of Section 368(a) of the
Code. None of the parties hereto will knowingly take any action that would cause
the Merger to fail to qualify as a reorganization within the meaning of Section
368(a) of the Code.
ARTICLE II.
Names, Organizational Documents and Officers and Directors
----------------------------------------------------------
Section 2.1 Name of Surviving Corporation. The name of the surviving
corporation in the Merger shall be: "West Direct, Inc."
Section 2.2 Certificate of Incorporation. The Certificate of Incorporation
of New West in effect immediately prior to the Effective Time of Merger shall be
the Certificate of Incorporation of the surviving corporation in the Merger
after the Effective Time of Merger until amended thereafter as provided therein
or by law.
Section 2.3 By-laws. The By-laws of New West in effect at the Effective
Time of Merger shall be the By-laws of the surviving corporation of the Merger
after the Effective Time of Merger until amended thereafter as provided therein
or by law.
Section 2.4 Directors. The individuals who are directors of New West
immediately prior to the Effective Time of Merger shall serve as directors of
New West until the annual meeting of stockholders and thereafter will serve one
year terms until the expiration of such term, or their prior resignation,
removal or death, subject to the Certificate of Incorporation and By-laws of New
West.
Section 2.5 Officers. The individuals who are the officers of New West
immediately prior to the Effective Time of Merger shall be the officers of New
West until thereafter they cease to be officers in accordance with the DGCL and
the Certificate of Incorporation and By-Laws of New West.
-2-
ARTICLE III.
Conversion and Exchange of Stock
--------------------------------
Section 3.1 Exchange Ratio. At the Effective Time of Merger, by virtue of
the Merger and without any action on the part of any holder of common stock,
$.01 par value per share, of WDI ("WDI Common Stock") each of the following
transactions shall be deemed to occur simultaneously:
(a) All shares of WDI Common Stock issued and outstanding immediately prior
to the Effective Time of Merger which are held by West or any subsidiary of West
shall cease to be outstanding, shall be canceled and retired without payment of
any consideration therefor and shall cease to exist ("Excluded Shares").
(b) Subject to Section 3.4, each share of WDI Common Stock issued and
outstanding immediately prior to the Effective Time of Merger, other than
Excluded Shares, shall be converted into that number of shares (the "Merger
Shares") of fully paid and nonassessable shares of common stock, par value $.01
per share, of West ("West Common Stock") determined by dividing by 0.50954 (the
"Exchange Ratio"). All of such Merger Shares shall be subject to certain
restrictions and vesting requirements as set forth in the Restricted Stock
Agreement (as defined in Section 5.4).
(c) In the event of any stock dividend, stock split, reclassification,
recapitalization, combination or exchange of shares, or other similar
transaction, with respect to, West Common Stock after the date hereof and prior
to the Effective Time of Merger, the Exchange Ratio shall be adjusted
accordingly so as to maintain the relative proportionate interests of the
holders of WDI Common Stock and the holders of West Common Stock.
Section 3.2 Exchange of Certificates. (a) As soon as practicable after the
Effective Time of Merger, West shall make available, and each holder of WDI
Common Stock (other than holders of Excluded Shares) will be entitled to
receive, upon surrender to WDI of one or more certificates ("Certificates")
representing such stock for cancellation, (i)(A) certificates representing the
number of shares of West Common Stock into which such shares are converted in
the Merger, and (B) cash in consideration of fractional shares as provided in
Section 3.4 (the consideration in clauses (A) and (B) collectively, the "Share
Consideration"), and (ii) after the Effective Time of Merger, if applicable, any
dividends or other distributions with respect to West Common Stock to be issued
or paid pursuant to Section 3.3.
(b) In the event that any certificates for any shares of West Common Stock
are to be issued in a name other than that in which the Certificates
representing shares of WDI Common Stock surrendered in exchange therefor are
registered, it shall be a condition of such exchange that the certificate or
certificates so surrendered shall be properly endorsed or be otherwise in proper
form for transfer and that the person requesting such exchange shall pay to WDI
any transfer or other taxes required by reason of the issuance of certificates
for such shares of WDI Common Stock in a name other than that of the registered
holder of the Certificate surrendered, or shall establish to the satisfaction of
WDI that such tax has been paid or is not applicable.
-3-
(c) Until surrendered, Certificates representing shares of WDI Common Stock
shall represent solely the right to receive the relevant Share Consideration,
and after the Effective Time of Merger, if applicable, any dividends or other
distributions with respect to West Common Stock to be issued or paid pursuant to
Section 3.3, in each case, without any interest thereon. If any Certificates
representing shares of West Common Stock entitled to payment pursuant to Article
III shall not have been surrendered for such payment prior to such date on which
any payment in respect thereof would otherwise escheat to or become the property
of any governmental entity, such shares of West Common Stock shall, to the
extent permitted by applicable law, be deemed to be canceled and no money or
other property will be due to the holder thereof. Notwithstanding the foregoing,
neither West nor any party hereto shall be liable to a holder of shares of WDI
Common Stock for any amount properly delivered to a public official pursuant to
any applicable escheat laws.
Section 3.3 Dividends and Other Distributions. All shares of West Common
Stock to be issued pursuant to the Merger shall be deemed issued and outstanding
on the Effective Time of Merger and whenever a dividend or other distribution is
declared by West in respect of the West Common Stock, the record date for which
is on or after the Effective Time of Merger, that declaration shall include
dividends or other distributions in respect of all Merger Shares issuable
pursuant to this Agreement. No dividends or other distributions that are
declared or made on West Common Stock will be paid to persons entitled to
receive certificates representing West Common Stock pursuant to this Agreement
until such persons surrender their Certificates representing WDI Common Stock.
Subject to the effect of applicable laws, following surrender of any such
Certificate, there shall be issued and/or paid to the holder of the certificates
representing whole shares of West Common Stock issued in exchange therefor,
without interest, (A) at the time of such surrender, the dividends or other
distributions with a record date after the Effective Time of Merger and a
payment date on or prior to such time of surrender payable with respect to such
whole shares of West Common Stock and not paid and (B) at the appropriate
payment date, the dividends or other distributions payable with respect to such
whole shares of West Common Stock with a record date after the Effective Time of
Merger but with a payment date subsequent to surrender.
Section 3.4 No Fractional Shares. No certificates or scrip representing
less than one share of West Common Stock shall be issued upon the surrender for
exchange of Certificates representing West Common Stock pursuant to Article III.
In lieu of any such fractional share, each holder of WDI Common Stock who would
otherwise have been entitled to a fraction of a share of West Common Stock upon
surrender of Certificates for exchange pursuant to Article III shall be paid
upon such surrender cash (without interest) in an amount equal to such
fractional share, multiplied by $17.69.
Section 3.5 Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the Person claiming such Certificate to be lost,
stolen or destroyed and an indemnity agreement by such Person against any claim
that may be made against it with respect to such Certificate, will issue in
exchange for such lost, stolen or destroyed Certificate the shares of West
Common Stock, and any cash payable and any unpaid dividends or other
distributions in respect thereof pursuant to Section 3.3 upon the due surrender
of and deliverable in respect of the shares represented by such Certificate
pursuant to this Agreement.
-4-
Section 3.6 Closing of WDI's Transfer Books. At the Effective Time of
Merger, the stock transfer books of WDI shall be closed and no transfer of
shares of WDI Common Stock shall be made thereafter. In the event that, after
the Effective Time of Merger, Certificates are presented to the surviving
corporation, they shall be canceled and exchanged for West Common Stock, and/or
cash as provided in this Article III.
Section 3.7 Options. At the Effective Time of Merger, West shall cause each
holder of a then-outstanding and unexercised option (the "WDI Options")
exercisable for shares of WDI Common Stock to receive, by virtue of the Merger
and without any action on the part of the holder thereof, options exercisable
for shares of West Common Stock having the same terms and conditions as the WDI
Options (including such terms and conditions as may be incorporated by reference
into the agreements evidencing the WDI Options pursuant to the plans or
arrangements pursuant to which such WDI Options were granted), except that the
exercise price and the number of shares issuable upon exercise shall be divided
and multiplied, respectively, by the Exchange Ratio. West shall take all
corporate action necessary to reserve for issuance a sufficient number of shares
of West Common Stock for delivery upon the exercise of WDI Options after the
Effective Time of Merger.
Section 3.8 Closing. The closing of the transactions contemplated by this
Agreement shall take place (a) at the offices of Willkie Farr & Gallagher, 787
Seventh Avenue, New York, New York 10019, at 9:00 A.M. local time on the day
which is one business day after the day on which the last of the conditions set
forth herein is fulfilled or waived or (b) at such other time and place as West
shall determine.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE WDI STOCKHOLDERS
------------------------------------------------------
Each WDI Stockholder severally and not jointly represents and warrants to
West, WDI and New West as follows:
Section 4.1 Accredited Investor. The WDI Stockholder has such knowledge and
experience in financial and business matters that he or she is capable of
evaluating the merits and risks of his or her investment in the Merger Shares as
contemplated by this Agreement, and is able to bear the economic risk of such
investment for an indefinite period of time. The WDI Stockholder is an
"accredited investor" as such term is defined in Rule 501 promulgated under the
Securities Act of 1933, as amended the ("Securities Act").
Section 4.2 Private Placement. (a) The WDI Stockholder is acquiring the
Merger Shares for his or her own account for investment and not with a view
towards the resale, transfer or distribution thereof, nor with any present
intention of distributing the Merger Shares within the meaning of the Securities
Act.
(b) The WDI Stockholder acknowledges that the Merger Shares have not been
registered under the Securities Act, nor qualified under any state securities
laws, and that they are being offered and sold pursuant to an exemption from
such registration and qualification based in part upon the WDI Stockholder's
representations contained herein.
-5-
(c) The WDI Stockholder has been furnished access to such information and
documents as he or she has requested and has been afforded an opportunity to ask
questions of and receive answers from representatives of West and WDI concerning
the terms and conditions of this Agreement and the acquisition of the Merger
Shares contemplated hereby.
(d) The WDI Stockholder understands and acknowledges that he or she must
bear the economic risk of this investment in the Merger Shares unless and until
the Merger Shares are registered pursuant to the Securities Act and qualified
under applicable state securities laws or the WDI Stockholder obtains an opinion
of counsel in form and substance reasonably satisfactory to West and its
counsel, that such registration and qualification is not required. The WDI
Stockholder acknowledges and understands that West is under no obligation to
register the Merger Shares. The WDI Stockholder further understands and
acknowledges that there is no assurance that any exemption from the Securities
Act will be available, or, if available, that such exemption will allow the WDI
Stockholder to sell or otherwise transfer any or all the Merger Shares, in the
amounts, or at the times the WDI Stockholder might propose.
(e) The Investor is aware of the adoption of Rule 144 by the SEC under the
Securities Act, which permits limited public resales of securities acquired in a
non-public offering, subject to the satisfaction of certain conditions,
including (without limitation) the availability of certain current public
information about the issuer, the resale occurring only after the holding period
required by Rule 144 has been satisfied, the sale occurring through an
unsolicited "broker's transaction," and the amount of securities being sold
during any three-month period not exceeding specified limitations.
(f) The WDI Stockholder will not transfer the Merger Shares in violation of
the Securities Act, the Securities Exchange Act of 1934, as amended, or the
rules promulgated thereunder, including Rule 144 under the Securities Act. The
WDI Stockholder agrees that it will not dispose of the Merger Shares unless and
until it has complied with all requirements of the Restricted Stock Agreement
applicable to the disposition of Merger Shares and it has provided West with
written assurances, in substance and form satisfactory to West, that the
proposed disposition does not require registration of the Merger Shares under
the Securities Act or all appropriate action necessary for compliance with the
registration requirements of the Securities Act or with any exemption from
registration available under the Securities Act (including Rule 144) has been
taken.
ARTICLE V.
Conditions
----------
The respective obligation of each of West, WDI and New West to effect the
Merger is subject to the satisfaction or waiver at or prior to the Closing Date
of each of the following conditions:
Section 5.1 No Injunction or Action. No order, statute, rule, regulation,
executive order, stay, decree, judgment or injunction shall have been enacted,
entered, promulgated or enforced by any federal, state or foreign governmental
or public body, court,
-6-
tribunal, agency or other authority (each, a "Governmental Entity") which
prohibits or prevents the consummation of the Merger which has not been vacated,
dismissed or withdrawn prior to the Effective Time of the Merger.
Section 5.2 Governmental Approvals. All consents , waivers, authorizations
and approvals of any Governmental Entity required in connection with the
execution, delivery and performance of this Agreement shall have been duly
obtained and shall be in full force and effect on the Closing Date, except as
may be waived by West, WDI and New West.
Section 5.3 Consents and Approvals. All consents, waivers, authorizations
and approvals required in connection with the execution, delivery and
performance of this Agreement shall have been duly obtained and shall be in full
force and effect on the Closing Date, except as may be waived by West, WDI and
New West.
Section 5.4 Restricted Stock Agreements. Each of the WDI Stockholders shall
have executed and delivered to West a restricted stock agreement with respect to
the Merger Shares received by him or her in the Merger in substantially the form
attached hereto as Exhibit A (the "Restricted Stock Agreement").
ARTICLE VI.
Additional Agreements
---------------------
Section 6.1 Availability of the Agreement. New West shall maintain a copy
of this Agreement at its executive offices located at:
c/o West Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68164
Attn: General Counsel
Upon the request of a stockholder of any of the parties hereto, a copy of
this Agreement shall be provided to such stockholder without cost thereto.
Section 6.2 Securities Law Restrictions. Regardless of whether the offering
and sale of Merger Shares under this Agreement have been registered under the
Securities Act or have been registered or qualified under the securities laws of
any state, West at its discretion may impose restrictions upon the sale, pledge
or other transfer of the Merger Shares (including the placement of appropriate
legends on stock certificates or the imposition of stop-transfer instructions)
if, in the reasonable judgment of West, such restrictions are necessary or
desirable in order to achieve compliance with the Securities Act, the securities
laws of any relevant state or any other applicable law.
Section 6.3 Rights of West. West shall not be required to (a) transfer on
its books any Merger Shares that have been transferred in contravention of this
Agreement or the Restricted Stock Agreement or (b) treat as the owner of Merger
Shares, or otherwise to accord voting, dividend or liquidation rights to, any
transferee to whom Merger Shares have been transferred in contravention of this
Agreement or the Restricted Stock Agreement.
-7-
Section 6.4 Legend. All certificates evidencing Merger Shares shall bear
the following legend:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN
OPINION OF COUNSEL, SATISFACTORY TO WEST CORPORATION AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
ARTICLE VII.
General
-------
Section 7.1 Termination and Abandonment. At any time prior to the
consummation of the Merger, this Agreement may be terminated and the Merger
abandoned by West and WDI. In the event of termination of this Agreement as
provided for herein, this Agreement shall forthwith become void and there shall
be no liability or obligation on the part of West, WDI or New West, or their
respective officers, directors, stockholders, partners, option holders or other
persons under their control or direction; provided that the provisions of this
Article VII shall survive any termination of this Agreement.
Section 7.2 Amendment. This Agreement may be amended, and the observance of
any term of this Agreement may be waived, at any time prior to the Effective
Time of Merger with the mutual consent of each of the parties hereto.
Section 7.3 Headings. The headings set forth herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
Section 7.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which, when
taken together, shall constitute one and the same agreement.
Section 7.5 Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
Section 7.6 Notice. Any notice required by the terms of this Agreement
shall be given in writing and shall be deemed effective upon personal delivery
or upon deposit with the United States Postal Service, by registered or
certified mail, with postage and fees prepaid, or by facsimile. Notice shall be
addressed to West, WDI and New West at West's principal executive office and to
the WDI Stockholders at the addresses set forth on WDI's stockholder records.
Section 7.7 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with regard to the subject matter hereof.
It supersedes any
-8-
other agreements, representations or understandings (whether oral or written and
whether express or implied) relating to the subject matter hereof, other than
the Restricted Stock Agreement.
Section 7.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, AS SUCH LAWS
ARE APPLIED TO CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY IN SUCH STATE.
Section 7.9 Successors and Assigns. Except as otherwise expressly provided
to the contrary, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, West, WDI, New West and their successors and assigns and be
binding upon the WDI Stockholders and their legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person has become a party to this Agreement or has agreed in
writing to join herein and to be bound by the terms, conditions and restrictions
hereof.
Section 7.10 Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, (b) documents received by each
party pursuant hereto and (c) financial statements, certificates and other
information previously or hereafter furnished to each party, may be reproduced
by each party by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and each party may destroy any original
document so reproduced. All parties hereto agree and stipulate that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by each party in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 7.11 Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably and unconditionally waives trial by jury in any legal action or
proceeding relating to this Agreement, or the Restricted Stock Agreement and for
any counterclaim therein.
-9-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by its officers hereunto duly authorized, all as of
the day and year first above written.
WEST CORPORATION
By: /s/ Thomas B. Barker
--------------------------------------
Name: Thomas B. Barker
Title: President and Chief Executive
Officer
WEST DIRECT, INC.
By: /s/ Todd B. Strubbe
--------------------------------------
Name: Todd B. Strubbe
Title: President and Chief Executive
Officer
WDI ACQUISITION CORP.
By: /s/ Todd B. Strubbe
--------------------------------------
Name: Todd B. Strubbe
Title: President and Chief Executive
Officer
/s/ Thomas B. Barker
--------------------------------------------
Thomas B. Barker
/s/ Nancee R. Berger
--------------------------------------------
Nancee R. Berger
/s/ Rodney J. Kempkes
--------------------------------------------
Rodney J. Kempkes
/s/ Todd B. Strubbe
--------------------------------------------
Todd B. Strubbe