EXHIBIT 10.2
CONFORMED COPY
AMENDED AND RESTATED
UNITED/NEW UNITED AGREEMENT AND PLAN OF MERGER
This AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement") is entered into as of the 31st day of December, 2001, by and among
New UnitedGlobalCom, Inc., a Delaware corporation ("New United"),
UnitedGlobalCom, Inc., a Delaware corporation ("United"), and United/New United
Merger Sub, Inc., a Delaware corporation ("Merger Sub"), pursuant to Section 251
of the General Corporation Law of the State of Delaware (the "DGCL").
WITNESSETH that:
WHEREAS, on December 3, 2001, the parties hereto entered into a
United/New United Agreement and Plan of Merger (the "Original Agreement"), and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in its entirety, and
WHEREAS, each of the parties to this Agreement intends for Merger Sub
to merge with and into United, with United as the surviving entity in such
merger,
NOW, THEREFORE, the parties to this Agreement, in consideration of the
mutual covenants, agreements and provisions hereinafter contained, do hereby
prescribe the terms and conditions of said merger and the mode of carrying the
same into effect as follows:
FIRST: At the Effective Time, as hereinafter defined, Merger Sub shall
be merged with and into United (the "Merger"), with United being the surviving
entity in the Merger (the "Surviving Entity") and changing its name to "UGC
Holdings, Inc."
SECOND: At the Effective Time, the manner of converting the outstanding
shares of the capital stock of United and Merger Sub shall be as follows:
(a) All of the shares of United's Series E Convertible Preferred Stock,
par value $0.01 per share, that are issued and outstanding immediately prior to
the Effective Time shall be automatically converted into an aggregate of 1,500
shares of Class A Common Stock, par value $0.01 per share, of the Surviving
Entity.
(b) Each share of United's Class A Common Stock, par value $0.01 per
share ("United Class A Stock"), that is issued and outstanding immediately prior
to the Effective Time (except as provided in paragraph (g) below) shall be
automatically converted into and represent the right to receive, and shall be
exchangeable for one share of Class A Common Stock, par value $0.01 per share,
of New United ("New United Class A Stock").
(c) Each share of United's Class B Common Stock, par value $0.01 per
share ("United Class B Stock"), that is issued and outstanding immediately prior
to the Effective Time (except as provided in paragraph (g) below and excluding
Dissenting Shares) shall be automatically converted into and represent the right
to receive, and shall be exchangeable for one share of New United Class A Stock.
(d) Each share of United's Convertible Preferred Stock, Series B, par
value $0.01 per share ("United Series B Preferred Stock"), outstanding
immediately prior to the Effective Time (except as provided in paragraph (g)
below and excluding Dissenting Shares) shall be automatically converted into and
represent the right to receive, and shall be exchangeable for, a number of
shares of New United Class A Stock equal to the number of shares of United Class
A Stock that the holder of such share of United Series B Preferred Stock would
have received in respect of such share if such holder had converted such share
into shares of United Class A Stock immediately prior to the Merger;
(e) Each share of United's 7% Series C Senior Cumulative Convertible
Preferred Stock, par value $0.01 per share ("United Series C Preferred Stock"),
outstanding immediately prior to the Effective Time (except as provided in
paragraph (g) below and excluding Dissenting Shares) shall be automatically
converted into and represent the right to receive, and shall be exchangeable
for, a number of shares of New United Class A Stock equal to the number of
shares of United Class A Stock that the holder of such share of United Series C
Preferred Stock would have received in respect of such share if such holder had
converted such share into shares of United Class A Stock immediately prior to
the Merger and assuming for such purpose that United had elected to pay any
accumulated and unpaid dividends thereon by the issuance of shares of United
Class A Stock as contemplated by the Certificate of Designation for the United
Series C Preferred Stock;
(f) Each share of United's 7% Series D Senior Cumulative Convertible
Preferred Stock, par value $0.01 per share ("United Series D Preferred Stock"
and, together with the United Series B Preferred Stock and the United Series C
Preferred Stock, the "United Preferred Stock"), outstanding immediately prior to
the Effective Time (except as provided in paragraph (g) below and excluding
Dissenting Shares) shall be automatically converted into and represent the right
to receive, and shall be exchangeable for, a number of shares of New United
Class A Stock equal to the number of shares of United Class A Stock that the
holder of such share of United Series D Preferred Stock would have received in
respect of such share if such holder had converted such share into shares of
United Class A Stock immediately prior to the Merger and assuming for such
purpose that United had elected to pay any accumulated and unpaid dividends
thereon by the issuance of shares of United Class A Stock as contemplated by the
Certificate of Designation for the United Series D Preferred Stock;
(g) Each share of United Class A Stock, United Class B Stock, United
Series B Preferred Stock, United Series C Preferred Stock or United Series D
Preferred Stock that immediately prior to the Effective Time is held by New
United or that is held by United in treasury shall be cancelled and retired
without payment of any consideration therefor and without any conversion thereof
into any other securities or the right to receive any other securities.
(h) No fractional shares of New United Class A Stock shall be issued in
the Merger.
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All fractional shares of New United Class A Stock that a holder of United
Preferred Stock would otherwise be entitled to receive as a result of the
Merger shall be aggregated in the manner described in paragraph (c) of
Article Sixth and if a fractional share results from such aggregation, such
holder shall be entitled to receive, in lieu thereof, an amount in cash
without interest determined by multiplying the closing sale price of a share
of United Class A Stock on the Nasdaq Stock Market on the last full trading
day immediately preceding the Effective Time by a fraction of a share of New
United Class A Stock to which such holder would otherwise have been entitled.
(i) All outstanding options to purchase shares of United Class A Stock
granted under plans listed in Section 2.5(c) of the United Disclosure Schedule
("United Stock Options") to that certain Amended and Restated Agreement and Plan
of Restructuring and Merger, dated as of December 31, 2001, by and among United,
New United, Merger Sub, Liberty Media Corporation, Liberty Media International,
Inc., Liberty Global, Inc. and each Founder (as therein defined) (the
"Restructuring Agreement"), shall remain outstanding, be assumed by New United
and thereafter be exercisable, at the same per share exercise price and pursuant
to the same terms and conditions, including vesting conditions, for a number of
shares of New United Class A Stock equal to the number of shares of United Class
A Stock for which such stock option was exercisable immediately prior to the
Effective Time.
(j) All of the shares of Merger Sub's Class B Common Stock, par value
$0.01 per share, and Class C Common Stock, par value $0.01 per share,
outstanding immediately prior to the Effective Time and held by New United shall
be converted into and represent the right to receive, and shall be exchangeable
for, respectively, an aggregate of 1,500 shares of Class B Common Stock, par
value $0.01 per share, of the Surviving Entity, and an aggregate of 300,000
shares of Class C Common Stock, par value $0.01 per share, of the Surviving
Entity.
(k) If, after the date of this Agreement but prior to the Effective
Time, either of United or New United effects any stock dividend, stock split,
reverse stock split, recapitalization or reclassification affecting the shares
of its common stock or preferred stock of any class or series, or otherwise
effects any transaction that changes such shares into any other securities
(including securities of another entity) or effects any other dividend or
distribution (other than a normal cash dividend payable out of current or
retained earnings) on such shares, then the terms of the foregoing exchanges
(including the exchange rates and the terms of the conversion of the United
Stock Options) shall, as appropriate, be adjusted to reflect such event.
(l) As of and following the Effective Time, (x) the Certificate of
Incorporation and Bylaws of the Surviving Entity shall be as set forth on
EXHIBIT A and EXHIBIT B hereto, respectively, and (y) until their successors are
duly elected or appointed in accordance with the Certificate of Incorporation
and the Bylaws of the Surviving Entity and the terms of the United/Liberty
Agreement (as defined in the Restructuring Agreement), the directors of Merger
Sub immediately prior to the Effective Time shall be the directors of the
Surviving Entity.
(m) Notwithstanding any other provisions in this Agreement to the
contrary, shares of United Class B Stock, United Series B Preferred Stock,
United Series C Preferred Stock and United Series D Preferred Stock that are
outstanding immediately prior to the Effective Time and
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that are held by stockholders who have not voted in favor of the Merger or
consented thereto in writing and who have properly demanded appraisal for
such shares in accordance with Section 262 of the DGCL (collectively, the
"Dissenting Shares"), shall not be converted into or represent the right to
receive, or be exchangeable for, any securities of New United as provided
herein. Such stockholders instead shall be entitled to receive payment of the
appraisal value of such shares held by them in accordance with Section 262 of
the DGCL, except that all Dissenting Shares of stockholders who have failed
to perfect or who have effectively withdrawn or otherwise lost their rights
to appraisal under Section 262 of the DGCL, shall thereupon be deemed to have
been converted into and become, as of the Effective Time, securities of New
United as provided herein.
(n) At the Effective Time, New United shall execute and file with the
Secretary of State of the State of Delaware a Certificate of Amendment, in the
form attached hereto as EXHIBIT C, changing the name of New United to
"UnitedGlobalCom, Inc."
THIRD: In connection with the Merger, the following will occur:
(a) The Merger shall become effective at the time set forth in a
Certificate of Merger, in the form attached hereto as EXHIBIT D (the
"Certificate of Merger"), duly executed and filed with the Secretary of State of
the State of Delaware (the "Effective Time").
(b) At the Effective Time, all the property, rights, privileges,
franchises, patents, trademarks, licenses, registrations and other assets of
every kind and description of Merger Sub shall be transferred to, vested in and
devolve upon the Surviving Entity without further act or deed and all property,
rights, and every other interest of the Surviving Entity and Merger Sub shall be
as effectively the property of the Surviving Entity as they were of the
Surviving Entity and Merger Sub respectively.
FOURTH: Prior to the filing of the Certificate of Merger, this
Agreement shall have been approved and adopted by the sole stockholder of Merger
Sub, the sole stockholder of New United, and the stockholders of United as
provided in the Restructuring Agreement.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding,
but subject to the terms of the Restructuring Agreement, this Agreement may be
terminated and abandoned by the Board of Directors of any constituent entity at
any time prior to the Effective Time. This Agreement may be amended by the Board
of Directors of the constituent entities at any time prior to the Effective
Time, subject to the terms of the Restructuring Agreement, provided that an
amendment made subsequent to the approval and adoption of this Agreement by the
stockholders of any constituent entity shall not (1) alter or change the amount
or kind of shares, securities, cash, property and/or rights to be received in
exchange for, or on conversion of, all or any of the shares of any class or
series or any such constituent entity, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Entity of the Merger, or (3) alter
or change any of the terms and conditions of this Agreement if such alteration
or change would adversely affect the holders of any of the shares of any class
or series of such constituent entity.
SIXTH: Surrender and payment for securities of United shall occur as
follows:
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(a) At and after the Effective Time, certificates representing shares
of United Class A Stock shall represent an equal number of shares of New United
Class A Stock.
(b) Prior to the Effective Time, United shall appoint an agent, which
may be an affiliate of United or New United (the "Exchange Agent") for the
purpose of exchanging (i) certificates representing shares of United Class B
Stock for certificates representing an equal number of shares of New United
Class A Stock (the "Class B Consideration"), (ii) certificates representing
shares of United Series B Preferred Stock for the merger consideration
determined by reference to paragraphs (d) and (h) of Article Second (the "Series
B Consideration"), (iii) certificates representing shares of United Series C
Preferred Stock for the merger consideration determined by reference to
paragraphs (e) and (h) of Article Second (the "Series C Consideration"), and
(iv) certificates representing shares of United Series D Preferred Stock for the
merger consideration determined by reference to paragraphs (f) and (h) of
Article Second (the "Series D Consideration"). At the Effective Time, New United
shall deposit with the Exchange Agent (i) the Class B Consideration to be paid
in respect of shares of United Class B Stock, (ii) the Series B Consideration to
be paid in respect of shares of United Series B Preferred Stock, (iii) the
Series C Consideration to be paid in respect of shares of United Series C
Preferred Stock, and (iv) the Series D Consideration to be paid in respect of
shares of United Series D Preferred Stock. The certificates representing the
United Class B Stock, the United Series B Preferred Stock, the United Series C
Preferred Stock and the United Series D Preferred Stock are referred to herein
as the "Certificates," and the Class B Consideration, the Series B
Consideration, the Series C Consideration and the Series D Consideration are
referred to herein as the "Merger Consideration." Promptly after the Effective
Time, United will send, or will cause the Exchange Agent to send, to each holder
of United Class B Stock, United Series B Preferred Stock, United Series C
Preferred Stock and United Series D Preferred Stock at the Effective Time, a
letter of transmittal and instructions (which shall specify that the delivery
shall be effected, and risk of loss and title shall pass, only upon proper
delivery of the Certificates to the Exchange Agent) for use in such exchange.
(c) Upon surrender to the Exchange Agent of its Certificate, as
applicable, together with a properly completed letter of transmittal, and
receipt by the Exchange Agent thereof, (i) each holder of shares of United Class
B Stock will be entitled to receive promptly the Class B Consideration in
respect of the shares of United Class B Stock represented by its Certificate,
(ii) each holder of United Series B Preferred Stock will be entitled to receive
promptly the Series B Consideration in respect of the shares of United Series B
Preferred Stock represented by its Certificate, (iii) each record holder of
United Series C Preferred Stock will be entitled to receive promptly the Series
C Consideration in respect of the shares of United Series C Preferred Stock
represented by its Certificate, and (iv) each record holder of United Series D
Preferred Stock will be entitled to receive promptly the Series D Consideration
in respect of the shares of United Series D Preferred Stock represented by its
Certificate. For purposes of the foregoing, any fractional shares of New United
Class A Stock that would be issuable to any holder pursuant to Article Second
(prior to the application of paragraph (h) thereof) in respect of shares of
United Class B Stock, United Series B Preferred Stock, United Series C Preferred
Stock and United Series D Preferred Stock held by such holder shall be
aggregated, and such holder shall be issued the resulting whole number of shares
of New United Class A Stock, prior to the application of
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paragraph (h) of Article Second with respect to any fractional share of New
United Class A Stock remaining following such aggregation. Until so
surrendered and received by the Exchange Agent, each such Certificate shall
represent after the Effective Time, for all purposes, only the right to
receive the Class B Consideration, the Series B Consideration, the Series C
Consideration and the Series D Consideration, as the case may be.
(d) If any portion of the Merger Consideration is to be paid to an
entity other than the entity in whose name the Certificate so surrendered is
registered, it shall be a condition to such payment that such Certificate shall
be properly endorsed or otherwise be in proper form for transfer and that the
entity requesting such payment shall pay to the Exchange Agent any transfer or
other taxes required as a result of such payment to an entity other than the
registered holder of such Certificate, or establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not payable.
(e) After the Effective Time, there shall be no further registration of
transfers of shares of United Class A Stock, United Class B Stock, United Series
B Preferred Stock, United Series C Preferred Stock or United Series D Preferred
Stock. If, after the Effective Time, Certificates are presented to the Surviving
Entity, they shall be canceled and exchanged for the Class B Consideration, the
Series B Consideration, the Series C Consideration or the Series D Consideration
provided for, and in accordance with the procedures set forth, in this Article
Sixth.
(f) Any portion of the Merger Consideration that remains unclaimed by
the holders of United Class B Stock, United Series B Preferred Stock, United
Series C Preferred Stock and United Series D Preferred Stock one year after the
Effective Time shall be returned to United, upon demand, and any such holder who
has not exchanged its shares for the applicable Merger Consideration in
accordance with this Article Sixth prior to that time shall thereafter look only
to United for payment of such consideration and any dividends and distributions
in respect of such shares, in each case without any interest thereon.
Notwithstanding the foregoing, neither United, New United nor any affiliate
thereof will be liable to any such holder for any amounts paid to a public
official pursuant to applicable abandoned property, escheat or similar laws.
(g) No dividends or other distributions with respect to the Merger
Consideration shall be paid to the holder of any Certificates until such
Certificates are surrendered and received by the Exchange Agent as provided in
this Article Sixth. Following such surrender and receipt by the Exchange Agent,
there shall be paid, without interest, to the entity in whose name such Merger
Consideration has been registered, (i) the amount of dividends or other
distributions with a record date after the Effective Time previously paid or
payable with respect to such Merger Consideration as of the date of such
surrender, and (ii) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender, payable with respect to
such Merger Consideration.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the day and year first written above.
NEW UNITEDGLOBALCOM, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
UNITEDGLOBALCOM, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
UNITED/NEW UNITED MERGER SUB, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
OMITTED:
Exhibit A - Certificate of Incorporation of Surviving Entity
Exhibit B - Bylaws of Surviving Entity
Exhibit C - Form of Certificate of Amendment
Exhibit D - Form of Certificate of Merger