AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of October
20, 2006, is by and between MetLife Investors Distribution Company, a
corporation duly organized and existing under the laws of the State of Missouri
("MLIDC"), and MLI Distribution LLC, a limited liability company duly organized
and existing under the laws of the State of Delaware (formerly known as
Travelers Distribution LLC) ("TDLLC").
WHEREAS, MLIDC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri; and
WHEREAS, TDLLC is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware; and
WHEREAS, MetLife Investors Group, Inc. ("MLIG") owns all of the issued and
outstanding shares of MLIDC's capital stock ("MLIDC Stock"); and
WHEREAS, MLIG owns all of the member interests in TDLLC ("TDLLC Membership
Interests"); and
WHEREAS, Section 18-209 of the Delaware Limited Liability Company Act
authorizes the merger of a limited liability company organized under the laws of
Delaware into a stock corporation organized under the laws of another state, and
Section 351.461 of the Revised Statutes of the State of Missouri authorizes the
merger of a limited liability company organized under the laws of another state
into a corporation organized under the laws of the State of Missouri; and
WHEREAS, MLIG, TDLLC and MLIDC desire for TDLLC to merge with and into
MLIDC, which will survive the merger; and
WHEREAS, the Board of Directors of MLIDC and the Board of Managers of TDLLC
have approved the Merger (as defined below) and have authorized their respective
representatives to enter into this Agreement on their behalf; and
WHEREAS, MLIG, as the sole shareholder of MLIDC and as the sole member of
TDLLC, has approved the Merger and MLIDC and TDLLC entering into this Agreement.
NOW THEREFORE, the parties hereto, in consideration of the mutual
covenants, agreements and provisions hereinafter contained, do hereby agree upon
and prescribe the terms and conditions of such merger and the mode of carrying
it into effect, as follows:
ARTICLE I
MERGER AND SURVIVING CORPORATION
1.1 The Merger. Upon the terms and subject to the conditions hereof and in
accordance with the provisions pertaining to the merging of domestic and
foreign corporations and limited liability companies contained in the
Delaware Limited Liability Company Act ("DLLCA") and the Revised Statutes
of the State of Missouri ("RSM") and subject to the receipt of all required
governmental approvals, TDLLC shall be merged with and into MLIDC (the
"Merger"), effective as of the Effective Time (as defined in Section 5.1
herein).
1.2 Surviving Corporation. MLIDC shall be the surviving corporation in the
Merger under the name MetLife Investors Distribution Company (the
"Surviving Corporation"). At the Effective Time, the separate existence of
TDLLC shall cease.
ARTICLE II.
TERMS, CONDITIONS AND EFFECTS OF MERGER
2.1 Articles of Incorporation. The Articles of Incorporation, as amended, of
MLIDC, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, and shall not be
amended by the Merger.
2.2 By-laws. The By-laws of MLIDC, as in effect immediately prior to the
Effective Time, shall be the By-laws of the Surviving Corporation, and
shall not be amended by the Merger.
2.3 Directors and Officers. The directors and officers of MLIDC immediately
prior to the Effective Time shall continue to be the directors and officers
of the Surviving Corporation until their respective successors shall have
been elected and qualified as provided by the By-laws of the Surviving
Corporation and Missouri law.
2.4 Effects of the Merger. At the Effective Time, the Merger shall have the
effects specified in Section 18-209 of the DLLCA and RSM Section 351.450,
including without limitation, the following: (a) the separate existence of
TDLLC shall cease; (b) all the rights, franchises and interests of TDLLC,
in and to every species of property, real, personal and mixed, and things
in action thereunto belonging, shall be deemed transferred to and vested in
MLIDC, without any other deed or transfer; and (c) MLIDC shall be deemed to
have assumed all the liabilities of TDLLC.
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ARTICLE III.
TREATMENT OF SHARES AND MEMBERSHIP INTEREST
3.1 MLIDC Stock. Each issued and outstanding share of MLIDC Stock shall not be
affected by the Merger and shall continue to be outstanding at and after
the Effective Time without any change and shall continue as a share of
capital stock of the Surviving Corporation.
3.2 TDLLC Membership Interest. At the Effective Time, by virtue of the Merger
and without any action on the part of TDLLC, MLIDC or any holder of a
membership interest in TDLLC or MLIDC Stock, all of the TDLLC Membership
Interests shall be surrendered and extinguished. All TDLLC Membership
Interests as of the Effective Time and any instruments representing such
membership interests shall be cancelled and retired, all rights in respect
thereof shall cease to exist, and no shares or other securities of the
Surviving Corporation shall be issued in respect thereof.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Parties. Each party represents and
warrants to the other party that: (a) it is an entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization; (b) it has the corporate power and authority, and has taken
all necessary corporate action, to execute, deliver and perform this
Agreement; (c) this Agreement is a legal, valid and binding obligation upon
such party and is enforceable against such party in accordance with its
terms (assuming valid authorization, execution and delivery of this
Agreement by such other party); (d) it is duly registered as a
broker-dealer with the Securities and Exchange Commission ("SEC") and each
jurisdiction identified in its respective Form BD, and is a member in good
standing of NASD, Inc.; and (e) execution of this Agreement and
consummation of the transactions contemplated hereby will not conflict
with, or cause such party to be in violation of, (i) its organizational
documents or By-laws, (ii) any other agreement to which it is a party
(except for any such violations which, individually or in the aggregate,
would not have a material adverse effect upon the performance of such
party's obligations under this Agreement), or (iii) any federal, state or
local law, statute, regulation, rule, code, ordinance, judgment, decree or
order to which it is subject.
4.2 Representations and Warranties of TDLLC. TDLLC represents and warrants to
MLIDC that: (a) MLIG is the sole member of TDLLC, and (b) the TDLLC
Membership Interests are free and clear of, and not subject to, any form of
hypothecation, pledge, lien, or other restriction on transfer under any
federal, state or local law, statute, regulation, rule, code, ordinance,
judgment, decree, order or agreement to which TDLLC is subject, and the
consummation of the transactions contemplated hereby shall not result in
any such hypothecation, pledge, lien, or other restriction on transfer upon
the TDLLC Membership Interests.
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4.3 Representations and Warranties of MLIDC. MLIDC represents and warrants to
TDLLC that: (a) (i) the authorized capital stock of MLIDC consists of
30,000 shares of common stock with no par value, and (ii) the issued and
outstanding capital stock of MLIDC consists of 25,000 shares of common
stock; (b) except for this Agreement, no agreement, arrangement or
commitment relating to the capital stock of MLIDC exists; (c) no securities
convertible into capital stock MLIDC exist; and (d) MLIG is the sole holder
of MLIDC capital stock entitled to vote. MLIDC represents and warrants that
the MLIDC Stock is duly authorized, validly issued, fully paid,
non-assessable, free of any preemptive rights, and free and clear of, and
not subject to, any form of hypothecation, pledge, lien or other
restriction on transfer under any federal, state or local law, statute,
regulation, rule, code, ordinance, judgment, decree, order or agreement to
which MLIDC is subject, and the consummation of the transactions
contemplated hereby shall not result in any such hypothecation, pledge,
lien, or other restriction on transfer upon MLIDC Stock.
ARTICLE V.
EFFECTIVE TIME
5.1 Effective Time. The Merger shall become effective (such time referred to
herein as the "Effective Time") as of the latest of:
(a) 4:01 p.m, New York time, on October 20, 2006;
(b) the date on which the Secretary of State of the State of Missouri
issues a certificate of merger; or
(c) the date on which a certificate of merger is filed with the Department
of State of the State of Delaware.
ARTICLE VI.
MISCELLANEOUS
6.1 Termination. Notwithstanding anything to the contrary in this Agreement,
this Agreement may be terminated at any time before the Effective Time by
the consent of the Boards of Directors of MLIDC and the Board of Managers
of TDLLC (each, a "Board" and together, the "Boards") or by the unilateral
action of either of these Boards, if the terminating Board determines, in
its sole discretion, that the consummation of this Agreement is, for any
reason, inadvisable. None of the parties hereto shall have any liability to
any other person by reason of the termination of this Agreement.
6.2 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to
principles of conflict of laws.
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6.3 Amendment. Anything herein or elsewhere to the contrary notwithstanding, to
the extent permitted by law, this Agreement may be amended, supplemented or
interpreted at any time by action taken by the respective Boards of the
parties hereto, and in the case of an interpretation, the actions of such
Boards shall be binding.
6.4 Binding Agreement. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
assigns.
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6.5 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
be deemed one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers on the 20th day of
October, 2006.
METLIFE INVESTORS DISTRIBUTION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
MLI DISTRIBUTION LLC
By: /s/ Xxxxxxxxx X. Forget
------------------------------------
Xxxxxxxxx X. Forget
Vice President
This Agreement has been authorized and approved in accordance with Section
347.720 of the RSM.
METLIFE INVESTORS DISTRIBUTION
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
Assistant Secretary
MLI DISTRIBUTION LLC
By: /s/ Xxxxxxxxx X. Forget
---------------------------------
Xxxxxxxxx X. Forget
Vice President
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