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Exhibit
10.1
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN OF
MERGER (this “ Agreement ”) is entered into on
this 25 th
day of September, 2007, by
and among Acuity Brands, Inc., a Delaware corporation (the “
Company ”), Acuity Brands Holdings, Inc., a Delaware
corporation and wholly owned subsidiary of the Company (“
Holdings ”), and Acuity Merger Sub, Inc., a Delaware
corporation and wholly owned subsidiary of Holdings (“
Merger Sub ”).
WHEREAS, the Company’s
authorized capital stock consists of (a) 500,000,000 shares of
common stock, par value $0.01 per share (“ Company Common
Stock ”), of which 43,646,880 shares were issued and
outstanding as of July 6, 2007, and (b) 50,000,000 shares
of preferred stock, par value $0.01, of which 5,000,000 shares have
been designated as “Participating Preferred Stock” and
none of which is outstanding;
WHEREAS, Holdings’
authorized capital stock consists of (a) 500,000,000 shares of
common stock, par value $0.01 per share (“ Holdings Common
Stock ”), of which 100 shares are currently issued and
outstanding and owned by the Company, and (b) 50,000,000
shares of preferred stock, par value $0.01, of which 5,000,000
shares have been designated as “Participating Preferred
Stock” and none of which is outstanding;
WHEREAS, the designations,
rights, and preferences, and the qualifications, limitations and
restrictions of the Holdings Common Stock are the same as those of
the Company Common Stock;
WHEREAS, the Company desires
to create a new holding company structure in accordance with
Section 251(g) of the Delaware General Corporation Law (the
“ DGCL ”) by merging Merger Sub with and into
the Company, all in accordance with the terms of this
Agreement;
WHEREAS, the certificate of
incorporation and by-laws of Holdings in effect immediately
following the Effective Time (as hereinafter defined) contain
provisions identical to the certificate of incorporation and
by-laws of the Company in effect immediately prior to the Effective
Time (to the extent required under Section 251(g)(4) of the
DGCL);
WHEREAS, the directors and
executive officers of the Company immediately prior to the
Effective Time will be the directors and executive officers of
Holdings upon the Effective Time;
WHEREAS, the boards of
directors of Holdings, the Company and Merger Sub have duly
approved this Agreement and declared its advisability;
and
WHEREAS, the Company, in its
capacity as the sole stockholder of Holdings, and Holdings, in its
capacity as the sole stockholder of Merger Sub, have approved this
Agreement and the transactions contemplated thereby.
NOW, THEREFORE, in
consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I.
The Merger
1.1 Basic Transaction
. Subject to the terms and provisions of this Agreement, and in
accordance with Section 251(g) of the DGCL, at the Effective
Time, Merger Sub shall be merged with and into the Company (the
“ Merger ”), whereupon the separate existence of
Merger Sub shall cease in accordance with the provisions of the
DGCL, and the Company shall be the surviving corporation (the
“ Surviving Corporation ”). At the Effective
Date, the effects of the Merger shall be as provided in
Section 259 of the DGCL.
1.2 Effective Time .
The parties hereto shall cause this Agreement to be properly
executed and delivered for filing in accordance with the DGCL on
the date hereof. The Merger shall become effective upon the
acceptance for record of this Agreement by the Secretary of State
of the State of Delaware in accordance with the DGCL (the “
Effective Time ”).
ARTICLE II.
Conversion and Exchange of
Shares
2.1 Conversion of Capital
Stock . At the Effective Time and by virtue of the Merger, and
without any action on the part of the holders of shares of capital
stock of the Company, Holdings or Merger Sub:
(a) Each share of capital
stock of the Company held by the Company as treasury stock or owned
by Merger Sub or any subsidiary of either of them immediately prior
to the Effective Time, shall be canceled, and no payment shall be
made with respect thereto;
(b) Each share of capital
stock of Holdings owned by the Company or any subsidiary thereof
immediately prior to the Effective Time, shall be canceled, and no
payment shall be made with respect thereto;
(c) Each share of capital
stock of Merger Sub outstanding immediately prior to the Effective
Time shall be converted into and become one share of capital stock
of the Surviving Corporation with the same rights and privileges as
the shares so converted and shall constitute the only outstanding
shares of capital stock of the Surviving Corporation;
and
(d) Each share of Company
Common Stock outstanding immediately prior to the Effective Time
shall, except as otherwise provided in clause (a) above, be
converted into the right to receive one (1) share of Holdings
Common Stock (subject to any restrictions applicable to the share
of Company Common Stock, e.g., outstanding unvested shares of
restricted stock).
2.2 Rights of Certificate
Holders . From and after the Effective Time, holders of
certificates formerly evidencing shares of Company Common Stock
shall cease to have any rights as stockholders of the Company,
except as provided by law and except that such holders shall have
the rights set forth in Section 2.3 below.
2
2.3 No Surrender of
Certificates . Until thereafter surrendered for transfer or
exchange, each stock certificate that, immediately prior to the
Effective Time, evidenced outstanding Company Common Stock shall be
deemed and treated for all corporate purposes to evidence the
ownership of the number of shares of Holdings Common Stock into
which such shares of Company Common Stock were converted pursuant
to the provisions of Section 2.1 above.
2.4 Conversion of
Options .
(a) At the Effective Time,
each option, whether or not exercisable, to purchase shares of
Company Common Stock which
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