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Exhibit 2.01
AGREEMENT AND PLAN OF MERGER
June 30, 1999
PARTIES
- Xxxxxxx Xxxxx Xxxxxx Holdings Inc., ("Mergeco"), a Delaware corporation
- SSBHI Merger Company Inc. ("Surviveco"), a New York corporation
BACKGROUND
Mergeco and Surviveco desire to merge Mergeco into Surviveco with the results
that
(i) Surviveco be the surviving corporation;
(ii) each holder of capital stock of Mergeco will receive in exchange for
each share of its capital stock an equivalent share of capital stock of
Surviveco;
(iii) the sole shareholder of all the capital stock of Surviveco will have
its shares (with the exception of any shares received pursuant to (ii)
above) cancelled;
(iv) the certificate of incorporation of the surviving corporation will be
amended as provided in this plan of merger, including changing the name
of the surviving corporation to "Xxxxxxx Xxxxx Barney Holdings Inc."
AGREEMENT AND PLAN OF MERGER
Section 1. Constituent corporations
The constituent corporations are Xxxxxxx Xxxxx Xxxxxx Holdings Inc., a Delaware
corporation ("Mergeco") and SSBHI Merger Company Inc., a New York corporation
("Surviveco").
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Surviveco is the surviving corporation.
Mergeco was incorporated March 14, 1960 in Delaware.
Surviveco was incorporated February 23, 1977 in New York.
Section 2. Capital Stock
The outstanding shares of capital stock of Mergeco consist of 1,000 shares of
common stock having a par value of one cent ($.01) per share, all of which are
entitled to vote.
The outstanding shares of capital stock of Surviveco consist of 10 shares of
common stock having no par value, all of which are entitled to vote.
Section 3. Terms and conditions of Merger
(a) On July 1, 1999 (the "Effective Date") (as defined below), the separate
existence of Mergeco shall cease and it shall be merged into Surviveco
(the "Merger"). Surviveco shall (i) be the surviving corporation, (ii)
continue to be governed by the laws of the State of New York and (iii)
continue under the name "Xxxxxxx Xxxxx Barney Holdings Inc."
(b) The by-laws of Mergeco as restated on the date hereof shall be the by-laws
of the surviving corporation.
(c) The directors of Mergeco immediately prior to the Merger shall continue in
office as directors of the surviving corporation after the Merger until
their successors are elected and qualified. On the Effective Date, the
directors and officers of Surviveco immediately prior to the merger shall
cease to be directors and officers of the surviving corporation.
(d) The resolutions of the board of directors of Mergeco in existence prior to
the Merger shall survive the Merger, and all the resolutions of Surviveco
(except for those relating to the Merger) shall be revoked as of the
Effective Date.
Section 4. Manner of converting shares.
(a) Each share of common stock of Mergeco issued and outstanding on the
Effective Date shall on the Effective Date, without any action on the part
of the holder of such share, become a fully paid and non-assessable share
of common stock of the surviving corporation.
(b) Each share of capital stock of Surviveco issued and outstanding on the
Effective Date
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shall on and after the Effective Date, without any action on the part of
the holder of such share, be cancelled and retired.
Section 5. Termination; amendments.
At any time prior to the filing of a certificate of merger for the Merger
with the Secretary of State of the State of New York, this agreement may be
terminated by the board of directors of either constituent corporation
notwithstanding approval of this Agreement by the stockholders of either or
both of the constituent corporations.
Section 6. Certificate of incorporation
The certificate of incorporation of the surviving corporation shall be amended
and restated to read in its entirety as follows:
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FIRST: NAME
The name of the corporation is Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
SECOND: PURPOSE
The corporation is formed for the purpose of engaging in any lawful act
or activity for which corporations may be organized under the Business
Corporation Law (the BCL). The corporation is not formed to engage in
any act or activity requiring the consent or approval of any state
official, department, board, agency or other body without such consent
or approval first being obtained.
THIRD: OFFICE
The office of the corporation is located in the City of New York,
County of New York.
FOURTH: CAPITAL SHARES
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(a) The corporation shall have the authority to issue
1,000 common shares, with a par value of one cent
($.01) per share and 10,000,000 preferred shares,
with a par value of one dollar ($1.00) per share.
(b) The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of
this Article FOURTH to provide for the issuance of
the shares of Preferred Stock in series, and by
filing a certificate pursuant to the applicable law
of the State of New York, to establish from time to
time the number of shares to be included in each such
series, and to fix the designation, powers,
preferences and rights of the shares of each such
series and the qualifications, limitations or
restrictions thereof. The authority of the Board of
Directors with respect to each series shall include,
but not be limited to, determination of the
following:
(i) the number of shares constituting that series and
the distinctive designation of that series.
(ii) the dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so,
from which date or dates, and the relative rights of
priority, if any, of payments of dividends on shares
of that series;
(iii) whether that series shall have voting rights,
in addition to the voting rights provided by law,
and, if so, the terms of such voting rights;
(iv) whether that series shall have conversion or
exchange privileges, and, if so, the terms and
conditions of such conversion or exchange, including
provision for adjustment of the conversion or
exchange rate in such events as the board of
directors shall determine;
(v) whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of
such redemption, including the manner of selecting
shares for redemption if less than all shares are to
be redeemed, the date or dates upon or after which
they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary
under different conditions and at different
redemption dates;
(vi) whether that series shall have a sinking fund
for the redemption or purchase of shares of that
series, and, if so, the terms and amount of such
sinking fund;
(vii) the right of the shares of that series to the
benefit of conditions and restrictions upon the
creation of indebtedness of the corporation or any
subsidiary, upon the issue of any additional shares
(including additional shares of such series or any
other series) and upon the payment of dividends or
the making of other distributions on, and the
purchase, redemption or other acquisition by the
corporation or any subsidiary of any outstanding
shares of the corporation;
(viii) the rights of the shares of that series in the
event of voluntary or
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involuntary liquidation, dissolution or winding up of
the corporation, and the relative rights of priority,
if any, of payment of shares of that series;
(ix) any restrictions on transfers of shares of that
series; and
(x) any other relative, participating, optional or
other special rights, qualifications, limitations or
restrictions of that series.
(c) Shares of any series of preferred shares that have
been redeemed (whether through the operation of a
sinking fund or otherwise) or which, if convertible
or exchangeable, have been converted into or
exchanged for shares of stock of any other class or
classes, shall have the status of authorized and
unissued shares of preferred shares of the same
series and may be reissued as a part of the series of
which they were originally a part or may be
reclassified and reissued as part of a new series of
preferred shares to be created by resolution or
resolutions of the board of directors or as part of
any other series of preferred shares, all subject to
the conditions and the restrictions on issuance set
forth in the resolution or resolutions adopted by the
board of directors providing for the issue of any
series of preferred shares.
(d) Dividends on outstanding shares of Preferred Stock
shall be paid, or declared and set apart for payment,
before any dividends shall be paid or declared and
set apart for payment on outstanding shares of Common
Stock. If upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, the assets available for distribution to
holders of shares of Preferred Stock of all series
shall be insufficient to pay such holders the full
preferential amount to which they are entitled, then
such assets shall be distributed ratably among the
shares of all series of Preferred Stock in accordance
with the respective preferential amounts (including
unpaid cumulative dividends, if any) payable with
respect thereto.
(e) Subject to the provisions of any applicable law or
except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Stock, the holders of outstanding shares of
Common Stock shall exclusively possess voting power
for the election of directors and for all other
purposes, each holder of record of shares of Common
Stock being entitled to one vote for each share of
Common Stock standing in his name on the books of the
Corporation.
(f) Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Stock, after payment shall have been made
to the holders of Preferred Stock of the full amount
of dividends to which they shall be entitled pursuant
to the resolution or resolutions providing for
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the issue of any series of Preferred Stock, the
holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any
and all series, to receive such dividends as from
time to time may be declared by the Board of
Directors.
(g) Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
Preferred Stock, in the event of any liquidation,
dissolution or winding up of the Corporation whether
voluntary or involuntary, after payment shall have
been made to the holders of Preferred Stock of the
full amount to which they shall be entitled pursuant
to the resolution or resolutions providing for the
issue of any series of Preferred Stock, the holders
of Common Stock shall be entitled, to the exclusion
of the holders of Preferred Stock of any and all
series, to share ratably according to the number of
shares of Common Stock held by them in all remaining
assets of the Corporation available for distribution.
FIFTH: AGENT FOR SERVICE OF PROCESS
The Secretary of State is designated as agent of the corporation upon
whom process against the corporation may be served. The post office
address of the corporation to which the Secretary of State shall mail
process against the corporation served upon the Secretary of State is
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
attention: General Counsel.
SIXTH: NO PREEMPTIVE RIGHTS
Shareholders shall not be entitled to preemptive rights, directly or
indirectly, in respect of any equity, voting, or other shares of the
corporation.
SEVENTH: MANAGEMENT OF THE BUSINESS
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and shareholders:
(a) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
(b) The directors shall have concurrent power with the
shareholders
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to make, alter, amend, change, add to or repeat the By-Laws of
the Corporation.
(c) The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the
By-Laws of the Corporation. Election of directors need not be
by written ballot unless the By-Laws so provide.
(d) A director may be removed, with or without cause, by a
majority vote of the outstanding common shares.
(e) The Corporation shall indemnify to the full extent authorized
by law any person made or threatened to be made a party to an
action or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he, his testator
or intestate is or was a director, officer or employee of the
Corporation or any predecessor of the Corporation or serves or
served any other enterprise as a director, officer or employee
at the request of the Corporation or any predecessor of the
Corporation, provided that this provision shall not provide
for indemnification to be made to or on behalf of any director
or officer if a judgment or other final adjudication adverse
to the director or officer establishes that his acts were
committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action
so adjudicated, or that he personally gained in fact a
financial profit or other advantage to which he was not
legally entitled.
(f) In addition to the powers and authority herein or by statute
expressly conferred upon them, the directors are hereby
empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the BCL, this
Amended and Restated Certificate of Incorporation, and any
By-Laws adopted by the shareholders; provided, however, that
no By-Laws hereafter adopted by the shareholders shall
invalidate any prior act of the directors which would have
been valid if such By-Laws had not been adopted.
EIGHTH: AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
and al rights conferred upon shareholders herein are granted subject to
this reservation.
NINTH: LIMITATION OF LIABILITY OF DIRECTORS
To the fullest extent permitted under section 402 of the BCL, no
director of the corporation shall be personally liable to the
corporation or its shareholders for damages for any breach of duty in
such capacity, provided that this provision
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shall not limit
(a) the liability of any director if a judgment or other final
adjudication adverse to him or her establishes that his or her
acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law or that he or she
personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that
his or her acts violated section 719 of the BCL, or
(b) the liability of any director for any act or omission prior to
adoption of a provision authorized by this paragraph.
IN WITNESS WHEREOF, the undersigned have duly executed this Merger Agreement as
of the 30th day of June, 1999.
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title Chairman and Chief Executive Officer
SSBHI MERGER COMPANY INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title Chairman and Chief Executive Officer
