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EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 5, 1999, pursuant to
Section 263 of the General Corporation Law of the State of Delaware and Section
17-211 of the Delaware Revised Uniform Limited Partnership Act, between THE
XXXXXXX XXXXX GROUP, INC., a Delaware corporation ("GS Inc."), and THE XXXXXXX
SACHS GROUP, L.P., a Delaware limited partnership (the "Merging Entity").
WITNESSETH that:
WHEREAS, prior to the effectiveness of the Merger, GS Inc. shall
have acquired all of the partnership interests in the Merging Entity including
all of the interests in profits and capital of the Merging Entity; and
WHEREAS, each of the parties hereto desires that the Merging Entity
merge (the "Merger") with and into GS Inc. as hereinafter specified with GS Inc.
being the surviving corporation;
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 the Merger and mode of carrying the same
into effect as follows:
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FIRST: At the Effective Time (as hereinafter defined), the Merging
Entity shall be merged with and into GS Inc., with GS Inc. being the surviving
entity.
SECOND: At the Effective Time, GS Inc. shall own all of the
partnership interests in the Merging Entity and shall be the only partner in the
Merging Entity other than GS Transitory LLC (which shall be a limited partner in
the Merging Entity without any partnership interest in the Merging Entity
including no interest in profits or capital of the Merging Entity), all of the
limited liability company interests in which are owned by GS Inc. and which will
be simultaneously merged with and into GS Inc.
THIRD: At the Effective Time, all of the partnership interests of
the Merging Entity will be canceled. GS Transitory LLC shall receive no
consideration in connection with the Merger. The shares of common stock of GS
Inc., par value $0.01 per share ("GS Inc. Common Stock"), that are issued and
outstanding immediately prior to the Effective Time shall be unaffected by the
Merger, except that shares of GS Inc. Common Stock owned by the Merging Entity
immediately prior to the Effective Time shall be canceled.
FOURTH: The terms and conditions of the Merger are as follows:
(a) the separate existence of the Merging Entity shall cease, and GS
Inc. shall possess all the rights, privileges, powers and franchises of
the Merging Entity, of a public as well as of a private nature, and shall
be subject to all of the restrictions, disabilities and duties of the
Merging Entity;
(b) all property of the Merging Entity, real, personal and mixed,
all debts due to the Merging Entity on whatever account and all other
things in action or belonging to the Merging Entity shall be vested in GS
Inc.;
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(c) the title to any real estate vested by deed or otherwise in the
Merging Entity shall not revert or be in any way impaired, but all rights
of creditors therein and all liens thereon shall be preserved unimpaired;
(d) all debts, liabilities, duties and other obligations of the
Merging Entity under any and all indentures, loan agreements, revolving
credit agreements, liquidity agreements, letters of credit and
reimbursement agreements, notes, guarantees or other agreements or
instruments to which the Merging Entity is a party or by which it is bound
shall attach to GS Inc. and may be enforced against GS Inc. to the same
extent as if said debts, liabilities and duties had been incurred or
contracted by GS Inc.;
(e) GS Inc. expressly assumes all debts, liabilities, duties and
other obligations of the Merging Entity under any and all indentures, loan
agreements, revolving credit agreements, liquidity agreements, letters of
credit and reimbursement agreements, notes, guarantees or other agreements
or instruments to which the Merging Entity is a party or by which it is
bound; and
(f) any claim existing or action or proceeding pending by or against
the Merging Entity may be prosecuted as if the Merger had not taken place,
or GS Inc. may be proceeded against or substituted in place of the Merging
Entity.
FIFTH: The Merger shall become effective upon the filing of a
Certificate of Merger with the Secretary of State of the State of Delaware or at
such other time as the parties may agree and as shall be stated in the
Certificate of Merger (the "Effective Time").
SIXTH: The certificate of incorporation and by-laws of GS Inc., as
in effect immediately prior to the Effective Time, shall be the certificate of
incorporation and by-laws of the surviving corporation. The directors of GS Inc.
immediately prior to the Effective Time shall be the directors of the surviving
corporation.
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SEVENTH: At any time prior to the Effective Time, this Agreement may
be amended, modified or terminated by the Board of Directors of GS Inc.
notwithstanding approval by the stockholders or partners of any of the parties
hereto.
EIGHTH: All rights and obligations under this Agreement and Plan of
Merger shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by the general partner and the Schedule II
limited partners of the Merging Entity and resolutions adopted by the Board of
Directors of GS Inc., have caused these presents to be executed by each party
hereto as the respective act, deed and agreement of each of said parties, as of
the date first written above.
THE XXXXXXX XXXXX GROUP, L.P.
By: The Xxxxxxx Sachs Group, Inc., as
General Partner
By: /s/ Xxxxxxx X. Palm
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Name: Xxxxxxx X. Palm
Title:General Counsel
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Palm
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Name: Xxxxxxx X. Palm
Title:General Counsel
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By his signature below, the undersigned certifies that no shares of stock of The
Xxxxxxx Sachs Group, Inc. were issued prior to the adoption by the Board of
Directors of The Xxxxxxx Xxxxx Group, Inc. of the resolution approving the
Agreement and Plan of Merger.
/s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
Title:Assistant Secretary
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