EXHIBIT 2.5
AGREEMENT
AND
PLAN OF MERGER
OF
ACC ESCROW CORP.
AND
AMERICAN CELLULAR CORPORATION
AGREEMENT AND PLAN OF MERGER (this "Agreement") entered into as
of August 8, 2003, between ACC Escrow Corp., a Delaware corporation (the "ACC
Escrow"), and American Cellular Corporation, a Delaware corporation (the
"Corporation"), and approved by resolutions adopted by the Board of Directors
and the sole shareholder of each such corporation.
WHEREAS, the respective Boards of Directors and the sole
shareholder of each of ACC Escrow and the Corporation have approved the merger
of the ACC Escrow into the Corporation pursuant and subject to the terms and
conditions of this Agreement and pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "DGCL");
NOW, THEREFORE, the parties hereto agree as follows:
1. On the Effective Date (as defined in Section 7 hereof), pursuant to
the provisions of the DGCL, ACC Escrow shall merge with and into Corporation,
which shall be the continuing and resulting corporation (hereinafter sometimes
referred to as the "Surviving Corporation"). The name of the Surviving
Corporation shall be American Cellular Corporation. The corporate existence of
the Corporation under the DGCL, with all of its purposes, powers and objects,
shall continue unaffected and unimpaired by the merger, and as the Surviving
Corporation, it shall, from and after the Effective Date, possess all the
rights, privileges, immunities, powers and purposes of ACC Escrow and all the
intangible property, causes of action and every other asset of ACC Escrow shall
vest in the Surviving Corporation, and the Surviving Corporation shall assume
all of the obligations and liabilities of ACC Escrow, all without further act or
deed. The separate corporate existence of ACC Escrow shall cease upon the
Effective Date.
2. The Fifth Amended and Restated Certificate of Incorporation of the
Corporation, attached hereto as Exhibit A, shall be the Certificate of
Incorporation of the Surviving Corporation.
3. The By-laws of the Corporation, as in effect immediately preceding
the Effective Date, shall be the By-laws of the Surviving Corporation, and will
continue in full force
and effect until changed, altered or amended as therein provided and in the
manner prescribed by the DGCL.
4. The directors and officers of the Corporation in office immediately
preceding the Effective Date shall be the directors and officers of the
Surviving Corporation, and their respective terms of office shall not be changed
by the merger.
5. Upon the Effective Date, all the shares of common stock and
preferred stock of the Corporation which are issued and outstanding immediately
prior to the filing by the Corporation of the Certificate of Merger of ACC
Escrow with and into the Corporation with the Secretary of State of the State of
Delaware shall be canceled. Each share of common stock, par value $1.00 per
share, of ACC Escrow ("ACC Escrow Common Stock") which is issued and outstanding
shall, as a result of the merger, be converted, into one-twentieth of a fully
paid and non-assessable share of class A common stock, par value $.01 per share
of the Surviving Corporation (the "Class A Common Stock"). As soon as
practicable after the Effective Date, each holder of an outstanding certificate
or certificates representing ACC Escrow Common Stock shall be entitled to
surrender same to the Surviving Corporation and each such holder shall thereupon
receive in exchange a certificate or certificates representing the number of
full shares of Class A Common Stock of the Surviving Corporation to which the
certificate or certificates so surrendered shall entitle such holder. At the
Effective Date, all shares of ACC Escrow Common Stock shall no longer be
outstanding and shall be canceled and retired and shall cease to exist, and each
certificate representing any of such shares shall thereafter represent only the
right to receive the Class A Common Stock.
6. The Boards of Directors and the proper officers of the parties
hereto are hereby authorized, empowered and directed to do any and all acts, and
to make, deliver, file and/or record any and all instruments, papers and
documents which shall be or become necessary, proper or convenient to carry out
and effectuate any of the provisions of this Agreement or of the merger herein
provided for.
7. The effective date of this Agreement, and the date upon which the
merger herein provided for shall become effective, shall be the date the
Certificate of Merger is filed with the Secretary of State of the State of
Delaware (the "Effective Date").
8. Notwithstanding the full approval and adoption of this Agreement,
this Agreement may be terminated and abandoned by the Board of Directors of
either of the parties hereto at any time prior to the filing of any requisite
merger documents with the Secretary of State of the State of Delaware.
9. This Agreement may be executed in one or more counterparts each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument, and all signatures need not appear on any one
counterpart.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement is hereby executed by each of
the parties hereto as of the date first written above.
ACC Escrow Corp.
By
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Name:
Title:
American Cellular Corporation
By
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Name:
Title:
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EXHIBIT A
FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
AMERICAN CELLULAR CORPORATION
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