AGREEMENT AND PLAN OF MERGER Between THOMAS WEISEL PARTNERS GROUP, INC. and THOMAS WEISEL PARTNERS GROUP LLC Dated as of February 7, 2006
Exhibit 2.2
Between
XXXXXX XXXXXX PARTNERS GROUP, INC.
and
XXXXXX XXXXXX PARTNERS GROUP LLC
Dated as of February 7, 2006
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of February 7, 2006, between
Xxxxxx Xxxxxx Partners Group, Inc., a Delaware corporation (“TWPG Inc.”) and Xxxxxx Xxxxxx
Partners Group LLC, a Delaware limited liability company (“TWPG LLC”).
RECITALS
WHEREAS, immediately upon the consummation of the merger (the “Initial Merger”)
between TWPG Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), and TWPG
LLC, pursuant to the Plan of Reorganization and Merger Agreement (the “Initial Merger
Agreement”), dated as of October 14, 2005, by and among TWPG LLC, Merger Sub and TWPG Inc.,
TWPG LLC shall be a wholly owned subsidiary of TWPG Inc.;
WHEREAS, the Board of Directors of TWPG Inc. and the Executive Committee of TWPG LLC have each
approved the merger of TWPG LLC with and into TWPG Inc. (the “Merger”) upon the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, TWPG Inc., in its capacity as the sole member of TWPG LLC, has adopted this Agreement
and authorized and approved the Merger and the other transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements contained herein, the
adequacy and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
The Merger; Effective Time
1.1. The Merger. Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as defined in Section 1.2), TWPG LLC shall be merged with and
into TWPG Inc. and the separate existence of TWPG LLC shall thereupon cease. TWPG Inc. shall be the
surviving entity in the Merger (sometimes hereinafter referred to as the “Surviving
Entity”), and the separate existence of TWPG Inc. with all its rights, privileges, immunities,
powers and franchises shall continue unaffected by the Merger. The Merger shall have the effects
specified in the Delaware General Corporation Law (the “DGCL”) and the Delaware Limited
Liability Company Act (the “LLC Act”).
1.2. Effective Time. On the date of the closing of the Merger, TWPG Inc. and TWPG LLC
shall cause a Certificate of Merger (the “Certificate of Merger”) to be executed,
acknowledged and filed with the Secretary of State of the State of Delaware as provided in the DGCL
and the LLC Act. The Merger shall become effective at the time when the Certificate of Merger has
been duly filed with the Secretary of State of the State of Delaware, unless such Certificate of
Merger specifies a different effective time in which event the Merger shall become effective at
such other specified time (the “Effective Time”).
ARTICLE II
Certificate of Incorporation and By-Laws of the Surviving Entity
2.1. Certificate of Incorporation. The Certificate of Incorporation of TWPG Inc. as in
effect immediately prior to the Effective Time shall be the Certificate of Incorporation (the
“Charter”) of the Surviving Entity, until thereafter duly amended in accordance with the
provisions therein or by applicable law.
2.2. By-Laws. The By-Laws of TWPG Inc. as in effect immediately prior to the Effective
Time shall be the By-Laws (the “By-Laws”) of the Surviving Entity, until thereafter duly
amended in accordance with the provisions therein or by applicable law.
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ARTICLE III
Directors and Officers of the Surviving Entity
3.1. Directors. The directors of TWPG Inc. at the Effective Time shall, from and after
the Effective Time, be the directors of the Surviving Entity until their successors have been duly
elected or appointed and qualified or until their earlier death, resignation or removal in
accordance with the Charter and the By-Laws.
3.2. Officers. The officers of TWPG Inc. at the Effective Time shall, from and after
the Effective Time, be the officers of the Surviving Entity until their successors have been duly
elected or appointed and qualified or until their earlier death, resignation or removal in
accordance with the Charter and the By-Laws.
ARTICLE IV
Effect of Merger on Membership Interests in TWPG LLC
As a result of the Merger and without any action on the part of either TWPG LLC or TWPG Inc.,
each membership interest in TWPG LLC outstanding immediately prior to the Effective Time shall be
cancelled and cease to exist as of the Effective Time.
ARTICLE V
Condition to Each Party’s Obligation to Effect the Merger
The respective obligation of each party to effect the Merger is subject to the condition that
the Initial Merger has been consummated pursuant to the Initial Merger Agreement.
ARTICLE VI
Miscellaneous and General
6.1. Modification or Amendment. Subject to the provisions of applicable law, at any
time prior to the Effective Time, the parties hereto may modify or amend this Agreement.
6.2. Counterparts. This Agreement may be executed in any number of counterparts, each
such counterpart being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
6.3. GOVERNING LAW AND VENUE. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
6.4. Entire Agreement. This Agreement constitutes the entire agreement and supercede
all other prior agreements, understandings, representations and warranties both written and oral,
between the parties, with respect to the subject matter hereof.
6.5. No Third Party Beneficiaries. This Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
6.6. Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof. If any provision of this Agreement, or the application thereof to any
person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision
shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other jurisdiction.
6.7. Interpretation. The headings therein are for convenience of reference only, do
not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of
the provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date and year first written above.
| XXXXXX XXXXXX PARTNERS GROUP, INC. |
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| By: | /s/ Xxxx Xxxxxx | |||||||
| Name: | Xxxx Xxxxxx | |||||||
| Title: | General Counsel and Secretary | |||||||
| XXXXXX XXXXXX PARTNERS GROUP LLC |
||||||||
| By: Xxxxxx Xxxxxx Partners Group, Inc., as Sole Member |
||||||||
| By: | /s/ Xxxx Xxxxxx | |||||||
| Name: | Xxxx Xxxxxx | |||||||
| Title: | General Counsel and Secretary | |||||||
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By his signature below, the undersigned certifies that this Agreement and Plan of Merger was
duly authorized, approved and adopted by the Board of Directors of Xxxxxx Xxxxxx Partners Group,
Inc. pursuant to Section 251(f) of the Delaware General Corporation Law and that the conditions
specified in the first sentence of Section 251(f) of the Delaware General Corporation Law have been
satisfied.
Date: February 7, 2006
|
/s/ Xxxx Xxxxxx
|
|||
| Name: Xxxx Xxxxxx | ||||
| Title: General Counsel and Secretary |
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