1
EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT OF MERGER, dated as of May 5, 1999, pursuant to Section
251 of the General Corporation Law of the State of Delaware (the "DGCL"),
between THE XXXXXXX XXXXX GROUP, INC., a Delaware corporation ("GS Inc."), and
THE XXXXXXX SACHS CORPORATION, a Delaware corporation (the "Merging Entity").
WITNESSETH that:
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; and
WHEREAS, certain redemptions of preferred stock of the Merging
Entity may be effected in contemplation of the 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 the Merger and mode of carrying the same
into effect as follows:
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.
2
SECOND: The Merger is intended to qualify as a "reorganization"
within the meaning of Section 368 of the Internal Revenue Code of 1986, as
amended.
THIRD: The manner of converting the outstanding shares of capital
stock of the Merging Entity and GS Inc. shall be as follows:
(a) Each share of Class B Common Stock, par value $1.00 per share,
of the Merging Entity which shall be issued and outstanding immediately
prior to the effectiveness of this Agreement (the "Effective Time"), other
than any such as to which appraisal rights have been validly asserted,
shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into the right to receive 2,376 shares (the
"Class B Merger Consideration") of common stock, par value $0.01 per
share, of GS Inc. (the "GS Inc. Common Stock"), and such shares of Class B
Common Stock shall no longer be outstanding and shall be canceled and
retired and shall cease to exist, and each holder of any such shares of
Class B Common Stock as recorded in the books of the Merging Entity shall
thereafter cease to have any rights with respect to such shares of Class B
Common Stock, except the right to receive the Class B Merger Consideration
for such shares of Class B Common Stock upon the Effective Time. The
shares of GS Inc. Common Stock that are issued and outstanding immediately
prior to the Effective Time shall be unaffected by the Merger.
(b) The shares of each of the several series of Preferred Stock, par
value $1.00 per share, of the Merging Entity which shall be issued and
outstanding immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into the right to receive the consideration set forth in the
attached Schedule A (the "Preferred Stock Merger Consideration"), and such
shares of Preferred Stock shall no longer be outstanding and shall be
canceled and retired and shall cease to exist, and each holder of any such
shares of Preferred Stock as recorded in the books of the Merging Entity
shall thereafter cease to have any rights with respect to such shares of
Preferred Stock, except the right to receive the Preferred Stock Merger
Consideration for such shares of Preferred Stock upon the Effective Time.
(c) The shares of GS Inc. Common Stock owned by the Merging Entity
prior to the Effective Time and owned by GS Inc. as a result of the Merger
shall be canceled.
FOURTH: The terms and conditions of the Merger are as follows:
-2-
3
(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.;
(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 other
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 other 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 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
-3-
4
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.
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 of all or 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.
-4-
5
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolutions adopted by the Board of
Directors of the Merging Entity and the consent of all of its stockholders 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
CORPORATION
By: /s/ Esta X. Xxxxxxx
_____________________________________
Name: Esta X. Xxxxxxx
Title: Executive Vice President
THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxxxxx X. Palm
_____________________________________
Name: Xxxxxxx X. Palm
Title: General Counsel
-5-
6
By his signature below, the undersigned certifies that no shares of stock of The
Xxxxxxx Xxxxx Group, Inc. were issued prior to the adoption by the Board of
Directors of The Xxxxxxx Sachs Group, Inc. of the resolution approving this
Agreement and Plan of Merger.
/s/ Xxxxx X. XxXxxx
________________________________________
Name: Xxxxx X. XxXxxx
Title: Assistant Secretary
By his signature below, the undersigned certifies that this Agreement and Plan
of Merger was duly signed on behalf of The Xxxxxxx Xxxxx Corporation, was
authorized and approved by the Board of Directors thereof and thereafter was
duly approved and adopted by at least a majority of the outstanding stock
thereof entitled to vote thereon by unanimous written consent.
/s/ Xxxxx X. XxXxxx
________________________________________
Name: Xxxxx X. XxXxxx
Title: Assistant Secretary
-6-
