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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is dated as of
August 7, 1997 among the STUDENT LOAN MARKETING ASSOCIATION, a
federally-chartered corporation ("Xxxxxx Xxx"), SLM Holding Corporation, a
Delaware corporation and a wholly-owned subsidiary of Xxxxxx Mae ("Holding
Company") and XXXXXX XXX MERGER COMPANY, a Delaware corporation and a
wholly-owned subsidiary of Holding Company ("MergerCo").
WHEREAS, Xxxxxx Mae has an authorized capitalization consisting of:
(i) 250,000,000 shares of Common Stock, par value $.20 per share
("Xxxxxx Xxx Common Stock"), of which 53,690,595 shares were issued
and outstanding at December 31, 1996; and
(ii) 5,000,000 shares of Preferred Stock, par value $50 per share
("Xxxxxx Mae Preferred Stock") of which 4,277,650 shares were issued
and outstanding at December 31, 1996.
WHEREAS, MergerCo has an authorized capitalization consisting of 1,000 shares
of Common Stock, par value $.01 per share ("MergerCo Common Stock"), all of
which are issued and outstanding and owned beneficially and of record by
Holding Company; and
WHEREAS, Holding Company has an authorized capitalization consisting of
250,000,000 shares of Common Stock, par value $.20 per share ("Holding Company
Common Stock"), of which 1,000 shares are issued and outstanding and owned
beneficially and of record by Xxxxxx Xxx; and
WHEREAS, The Student Loan Marketing Association Reorganization Act of 1996 (the
"Privatization Act") authorizes Xxxxxx Mae to reorganize through the formation
of a state-chartered holding company that would own all issued and outstanding
Xxxxxx Xxx Common Stock; and
WHEREAS, the Boards of Directors of Xxxxxx Mae, MergerCo and Holding Company,
deem it advisable to merge with and into Xxxxxx Xxx (the "Merger") in
accordance with the Delaware General Corporation Law, as amended (the "DGCL"),
and this Agreement and have, by resolutions duly adopted, approved this
Agreement and directed that it be executed by the undersigned officers and that
it be submitted to a vote of the respective shareholders of Xxxxxx Mae and
MergerCo; and
WHEREAS, Holding Company, as sole stockholder of MergerCo, has approved the
Agreement.
NOW THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties to this Agreement agree
that MergerCo shall merge with and into Xxxxxx Xxx and Xxxxxx Xxx shall be the
corporation surviving the Merger. The terms and conditions of the Merger, the
mode of carrying it into effect and the manner and basis of converting shares
in the Merger shall be as follows:
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ARTICLE I
THE MERGER
At the Effective Time (as herein defined), in accordance with the
provisions of this Agreement, the Privatization Act and the DGCL, MergerCo
shall be merged with and into Xxxxxx Mae, whereupon the separate corporate
existence of MergerCo shall cease and Xxxxxx Xxx shall continue as the
surviving corporation (the "Surviving Corporation").
Subject to and in accordance with the provisions of this Agreement,
the parties hereto shall consummate the Merger by filing a certificate of
merger with the Secretary of State of the State of Delaware and making all
other filings or recordings required by the DGCL in connection with the Merger.
The Merger shall become effective at such time as the certificate of merger is
duly filed with the Secretary of State of the State of Delaware (the "Effective
Time"). The Merger shall have the effects set forth in the Privatization Act
and DGCL. Without limiting the generality of the foregoing, and subject thereto
and to any other applicable laws, at the Effective Time all the properties,
rights, privileges, powers and franchises of Xxxxxx Xxx and MergerCo shall vest
in the Surviving Corporation, and all debts, liabilities, restrictions,
disabilities and duties of Xxxxxx Mae and MergerCo shall become the debts,
liabilities, restrictions, disabilities and duties of the Surviving
Corporation.
ARTICLE II
TERMS OF CONVERSION OF SHARES
At the Effective Time:
(a) Each share of Xxxxxx Xxx Common Stock issued and outstanding
immediately prior to the Effective Time shall thereupon, and without any action
on the part of the holder thereof, be converted into one validly issued, fully
paid and nonassessable share of Holding Company Common Stock.
(b) Each share of Xxxxxx Mae Common Stock held in treasury immediately
prior to the Effective Time shall thereupon be cancelled and retired and all
rights in respect thereof shall cease.
(c) The shares of Xxxxxx Xxx Preferred Stock issued and outstanding
immediately prior to the Effective Time shall not be converted or otherwise
affected by the Merger, and each such share shall continue to be issued and
outstanding and to be one fully paid and nonassessable share of the Xxxxxx Mae
Preferred Stock of the Surviving Corporation.
(d) Each share of MergerCo Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into one validly
issued, fully paid and nonassessable share of the Surviving Corporation.
(e) Each share of Holding Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be cancelled and restored to the
status of authorized and unissued Holding Company Common Stock.
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ARTICLE III
CHARTER AND BYLAWS
(a) From and after the Effective Time, and until thereafter amended as
provided by law, the provisions of the Higher Education Act of 1965, as amended
(the "Xxxxxx Xxx Charter"), as in effect immediately prior to the Effective
Time, shall be and continue to be the governing statute of the Surviving
Corporation.
(b) From and after the Effective Time, the By-Laws of Xxxxxx Mae as in
effect immediately prior to the Effective Time shall be and continue to be the
By-Laws of the Surviving Corporation until amended.
ARTICLE IV
STOCK CERTIFICATES
Following the Effective Time, each holder of an outstanding
certificate or certificates theretofore representing shares of Xxxxxx Xxx
Common Stock may, but shall not be required to, surrender the same to Holding
Company for cancellation, exchange or transfer, and each such holder or
transferee thereof will be entitled to receive a certificate or certificates
representing the same number of shares of Holding Company Common Stock as the
number of shares of Xxxxxx Mae Common Stock previously represented by the stock
certificate or certificates so surrendered. Until so surrendered or presented
for cancellation, exchange or transfer, each outstanding certificate which,
prior to the Effective Time, represented shares of Xxxxxx Xxx Common Stock
shall be deemed and treated for all corporate purposes to represent the
ownership of the same number of shares of Holding Company Common Stock as
though such surrender for cancellation, exchange or transfer thereof had taken
place. If any certificate representing shares of Holding Company Common Stock
is to be issued in a name other than that of the registered holder of the
certificate formerly representing shares of Xxxxxx Mae Common Stock presented
for transfer, it shall be a condition of issuance that (a) the certificate so
surrendered shall be properly endorsed or accompanied by a stock power and
shall otherwise be in proper form for transfer and (b) the person requesting
such issuance shall pay to Holding Company's transfer agent any transfer or
other taxes required by reason of issuance of certificates representing Holding
Company Common Stock in a name other than that of the registered holder of the
certificate presented, or establish to the satisfaction of Holding Company or
its registered agent that such taxes have been paid or are not applicable. The
stock transfer books for Xxxxxx Xxx Common Stock shall be deemed to be closed
at the Effective Time, and no transfer of shares of Xxxxxx Mae Common Stock
outstanding immediately prior to the Effective Time shall thereafter be made on
such books. Following the Effective Time, the holders of certificates
representing Xxxxxx Xxx Common Stock outstanding immediately before the
Effective Time shall cease to have any rights with respect to stock of the
Surviving Corporation and their sole rights shall be with respect to the
Holding Company Common Stock into which their shares of Xxxxxx Mae Common Stock
shall have been converted in the Merger.
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ARTICLE V
CONDITIONS OF THE MERGER
Consummation of the Merger is subject to the satisfaction of each of
the following conditions:
(a) The Merger shall have received such approval of the shareholders
of Xxxxxx Xxx as is required by the Privatization Act.
(b) Xxxxxx Mae shall have received an opinion of counsel in form and
substance reasonably satisfactory to Xxxxxx Xxx, dated as of the Effective
Time, substantially to the effect that, on the basis of facts, representations
and assumptions set forth in such opinion which are consistent with the state
of facts existing at the Effective Time, the Merger will be treated for U.S.
federal income tax purposes as a nonrecognition transfer of shares of Xxxxxx
Mae Common Stock by those holders thereof to the Holding Company for shares of
Holding Company Common Stock.
(c) The shares of Holding Company Common Stock to be issued and to be
reserved for issuance as a result of the Merger shall have been approved for
listing, upon official notice of issuance, by the New York Stock Exchange.
(d) A registration statement on Form S-4 relating to the shares of
Holding Company Common Stock to be issued or reserved for issuance as a result
of the Merger, shall be declared effective under the Securities Act of 1933, as
amended, and shall not be the subject of any "stop order."
ARTICLE VI
AMENDMENT AND WAIVER
The parties hereto, by mutual consent of their respective Boards of
Directors, may amend, modify or supplement this Agreement, or waive any
condition set forth herein, in such manner as may be agreed upon by them in
writing, at any time before or after approval of this Agreement by the
shareholders of Xxxxxx Xxx, to the extent permitted by the DGCL.
ARTICLE VII
MISCELLANEOUS
(a) This Agreement may be executed in two or more counterparts, each
of which when so executed shall be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
(b) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware.
(c) The parties hereto shall take all such action as may be necessary
or appropriate in order to effectuate the Merger. In case at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purposes of this Agreement, the officers and directors of each of the parties
hereto shall take all such further action.
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IN WITNESS WHEREOF, Xxxxxx Mae, MergerCo and Holding Company, have
executed this Agreement and Plan of Reorganization by their respective duly
authorized officers as of the date first written above.
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Xxx Xxxxx Xxxxxxx
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Name: Xxx Xxxxx Xxxxxxx
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Title: Secretary
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XXXXXX XXX MERGER COMPANY
By: /s/ Xxx Xxxxx Xxxxxxx
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Name: Xxx Xxxxx Xxxxxxx
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Title: Secretary
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SLM HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Chief Executive Officer
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