Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
THE WASHINGTON POST COMPANY,
TWPC, INC.
AND
WP COMPANY
Dated as of September 19, 2003
i
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER.............................................................1
Section 1.1 The Merger................................................1
Section 1.2 Effective Time............................................1
Section 1.3 Effects of the Merger.....................................1
Section 1.4 Charter and Bylaws; Directors and Officers................2
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; CLOSING............2
Section 2.1 Conversion of Securities..................................2
Section 2.2 Further Assurances........................................3
Section 2.3 Closing...................................................3
ARTICLE III
RELATED ARRANGEMENTS...................................................4
Section 3.1 Related Arrangements......................................4
ARTICLE IV
GENERAL PROVISIONS.....................................................4
Section 4.1 Interpretation............................................4
Section 4.2 Counterparts..............................................5
Section 4.3 Entire Agreement; No Third-Party Beneficiaries............5
Section 4.4 Governing Law.............................................5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 19, 2003 (this
"Agreement"), among The Washington Post Company, a Delaware corporation
("Parent"), TWPC, Inc., a Delaware corporation and wholly-owned subsidiary of
Parent (the "Company"), and WP Company, a Delaware corporation and
wholly-owned subsidiary of the Company ("Sub").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent, the Company
and Sub have each approved the merger of Parent with and into Sub (the
"Merger"), upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Merger is being effected pursuant to the provisions of
Section 251(g) of the Delaware General Corporation Law, as amended (the
"DGCL").
NOW, THEREFORE, in consideration of the premises, representations,
warranties and agreements herein contained, the parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the DGCL, Parent shall be merged with Sub at
the Effective Time (as defined in Section 1.2). At the Effective Time, the
separate corporate existence of Sub shall cease and Parent shall continue as
the surviving corporation (the "Surviving Corporation") and shall succeed to
and assume all the rights and obligations of Sub in accordance with the DGCL.
The Merger shall be effected in accordance with, and pursuant to, the terms of
Section 251(g) of the DGCL.
Section 1.2 Effective Time. The Merger shall become effective when a
certificate of merger (the "Certificate of Merger"), executed in accordance
with the relevant provisions of the DGCL, is duly filed with the Secretary of
State of the State of Delaware, or at such other time as is specified in the
Certificate of Merger (the time the Merger becomes effective being hereinafter
referred to as the "Effective Time"). The Certificate of Merger shall be so
filed by Parent on the date of the Closing (as defined in Section 2.3) or such
other time as Parent and Sub shall mutually agree.
Section 1.3 Effects of the Merger. The Merger shall have the effects
set forth in Section 259 of the DGCL.
Section 1.4 Charter and Bylaws; Directors and Officers. (a) At the
Effective Time, the Certificate of Incorporation of Sub (the "Charter") as in
effect immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable law. At the Effective Time, the Bylaws of
Sub as in effect immediately prior to the Effective Time shall be the Bylaws
of the Surviving Corporation until thereafter changed or amended as provided
therein.
(b) The directors of Sub immediately prior to the Effective Time
shall be the directors of the Surviving Corporation at the Effective Time,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be. The officers of
Sub immediately prior to at the Effective Time of the Merger shall be the
officers of the Surviving Corporation at the Effective Time, until the earlier
of their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; CLOSING
Section 2.1 Conversion of Securities. As of the Effective Time, by
virtue of the Merger and without any action on the part of Parent, the Company
or Sub:
(a) Each issued and outstanding share of common stock, par value $1
per share, of the Company held by Parent shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(b) Each issued and outstanding share of common stock, par value of
$1 per share, of Sub shall be converted into one validly issued, fully paid
and nonassessable share of common stock, par value $1 per share, of the
Surviving Corporation.
(c) All shares that are held in the treasury of the Sub shall no
longer be outstanding and shall automatically be canceled and retired and
shall cease to exist and no consideration shall be delivered in exchange
therefor.
(d) Each issued and outstanding share of Class A Common Stock, par
value $1 per share, of Parent shall be converted into one validly issued,
fully paid and nonassessable share of Class A Common Stock of the Company. All
of the shares of Class A Common Stock of Parent converted into Class A Common
Stock of the Company pursuant to this Section 2.1(d) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such
shares of Class A Common Stock of Parent shall thereafter represent
automatically, without the requirement of any exchange thereof, the same
number of shares of Class A Common Stock of the Company.
(e) Each issued and outstanding share of Class B Common Stock, par
value $1 per share, of Parent shall be converted into one validly issued,
fully paid and nonassessable share of Class B Common Stock of the Company. All
of the shares of Class B Common Stock of Parent converted into Class B Common
Stock of the Company pursuant to this Section 2.1(e) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such
shares of Class B Common Stock of Parent shall thereafter represent
automatically, without the requirement of any exchange thereof, the same
number of shares of Class B Common Stock of the Company.
(f) Each issued and outstanding share of Series A Preferred Stock,
par value $1 per share, of Parent shall be converted into one validly issued,
fully paid and nonassesable share of Series A Preferred Stock of the Company.
All of the shares of Series A Preferred Stock of Parent converted into Series
A Preferred Stock of the Company pursuant to this Section 2.1(f) shall no
longer be outstanding and shall automatically be canceled and shall cease to
exist as of the Effective Time, and each certificate previously representing
any such shares of Series A Preferred Stock of Parent shall thereafter
represent automatically, without the requirement of any exchange thereof, the
same number of shares of Series A Preferred Stock of Parent.
(g) All shares of Class A Common Stock, Class B Common Stock and
Series A Preferred Stock that are held in the treasury of Parent shall be
converted into one validly issued share of Class A Common Stock, Class B
Common Stock and Series A Preferred Stock respectively, of the Company held in
the treasury of the Company.
Section 2.2 Further Assurances. If at any time after the Effective
Time the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation its right, title or interest in, to or
under any of the rights, privileges, powers, franchises, properties or assets
of either of the Constituent Corporations, or (b) otherwise to carry out the
purposes of this Agreement, the Surviving Corporation and its proper officers
and directors or their designees shall be authorized to execute and deliver,
in the name and on behalf of either of the Constituent Corporations, all such
deeds, bills of sale, assignments and assurances and to do, in the name and on
behalf of either Constituent Corporation, all such other acts and things as
may be necessary, desirable or proper to vest, perfect or confirm the
Surviving Corporation's right, title or interest in, to or under any of the
rights, privileges, powers, franchises, properties or assets of such
Constituent Corporation and otherwise to carry out the purposes of this
Agreement. In addition, the parties agree to take all steps necessary to
ensure that all the conditions required to effect the Merger in accordance
with, and pursuant to, the terms of Section 251(g) of the DGCL are satisfied.
Section 2.3 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") and all actions specified in this Agreement to
occur at the Closing shall take place at the offices of Cravath, Swaine &
Moore LLP, 825 Eighth Avenue, New York,
NY 10019, at 9:00 a.m., local time, on September 22, 2003.
ARTICLE III
RELATED ARRANGEMENTS
Section 3.1 Related Arrangements. Immediately after the Effective
Time, the Surviving Corporation shall convert to a Delaware limited liability
company (the "New LLC"). The Company shall:
(a) file, simultaneously with the filing of the Certificate of Merger
contemplated by Section 1.2, with the Secretary of State of the State of
Delaware an Amended and Restated Certificate of Incorporation of the Company
that is identical to the Certificate of Incorporation of Parent immediately
prior to the Effective Time (which such Amended and Restated Certificate of
Incorporation shall, among other things, change the name of the Company to
"The Washington Post Company");
(b) at the Effective Time, amend and restate its bylaws so that the
bylaws of the Company are identical to the bylaws of Parent immediately prior
to the Effective Time;
(c) immediately after the Effective Time, execute a Transfer Agreement to
be dated September 22, 2003, between the Company and the New LLC, pursuant to
which the New LLC will assign, transfer, convey and dispose to the Company and
the Company will accept and assume, all assets (including the capital stock of
subsidiaries and all other equity investments directly held by the New LLC)
and liabilities (including contingent liabilities) of the Surviving
Corporation, other than the assets and liabilities (including contingent
liabilities) relating to the operating newspaper publishing business known as
"The Washington Post"; and
(d) take all steps necessary to ensure that (i) the Company is the
successor issuer of Parent for purposes of registration of the Class B Common
Stock of the Company under the Securities and Exchange Act of 1934 and (ii)
the Class B Common Stock of the Company is listed on the New York Stock
Exchange in the same manner that the Class B Common Stock of Parent is listed
thereon immediately prior to the Effective Time.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 Interpretation. (a) When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
Section 4.2 Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other parties.
Section 4.3 Entire Agreement; No Third-Party Beneficiaries. This
Agreement 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.
Section 4.4 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.
[signature pages follow]
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
THE WASHINGTON POST COMPANY
By: /s/ Gerald M. Rosberg
-------------------------------------
Name: Gerald M. Rosberg
Title: Vice President - Development
TWPC, INC.
By: /s/ John B. Morse, Jr.
--------------------------------------
Name: John B. Morse, Jr.
Title: President
WP COMPANY
By: /s/ John B. Morse, Jr.
-------------------------------------
Name: John B. Morse, Jr.
Title: President