EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of
_______ __, 2004, is entered into among Xxxxx & Steers Capital Management, Inc.,
a New York corporation (the "Company"), Xxxxx & Steers, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Company ("Holdco"), and CSCM
Merger Sub, Inc., a New York corporation and a wholly-owned subsidiary of Holdco
("Merger Sub").
RECITALS
WHEREAS, the Company is a New York corporation named Xxxxx & Steers
Capital Management, Inc. and has 14,567,556 shares of voting common stock, par
value $.01 per share, issued and outstanding and 12,132,444 shares of non-voting
common stock, par value $.01 per share, issued and outstanding (collectively,
the "Company Stock");
WHEREAS, Merger Sub is a New York corporation named CSCM Merger Sub,
Inc. and has one share of common stock, par value $.01, issued and outstanding
(the "Merger Sub Stock");
WHEREAS, pursuant to this Agreement, Merger Sub will be merged with and
into the Company (the "Merger");
WHEREAS, the Company, Merger Sub and Holdco intend, by approving
resolutions authorizing this Agreement, to adopt this Agreement as a plan of
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder and that the
transactions contemplated by this Agreement be undertaken pursuant to such plan;
WHEREAS, following the Merger, the Company will be the Surviving
Corporation (as defined below). The Surviving Corporation will be a New York
corporation and a wholly-owned subsidiary of Holdco with the name Xxxxx & Steers
Capital Management, Inc. and will have 100 shares of common stock, par value
$.01 per share, outstanding;
WHEREAS, the Board of Directors of the Company deems it advisable and
in the best interests of the Company to effect the Merger in accordance with the
New York Business Corporation Law (the "NYBCL") and subject to the conditions of
this Agreement, and has unanimously approved and adopted this Agreement;
WHEREAS, the Board of Directors of Merger Sub deems it advisable and in
the best interests of Merger Sub to effect the Merger in accordance with the
NYBCL and subject to the conditions of this Agreement, and has unanimously
approved and adopted this Agreement;
WHEREAS, the respective shareholders of the Company and Merger Sub upon
the terms and subject to the conditions set forth in this Agreement, have
unanimously approved the Merger;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereby agree, subject to the terms and conditions
hereinafter set forth, as follows:
ARTICLE I
TERMS AND CONDITIONS OF MERGER.
Section 1.01. The Merger. At the Effective Time (as defined in Section
1.02 hereof), in accordance with this Agreement and the NYBCL, Merger Sub shall
be merged with and into the Company, the separate existence of Merger Sub shall
cease, and the Company shall continue as the surviving corporation (the
"Surviving Corporation"). From and after the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, immunities and franchises,
of a public as well as a private nature, and shall be subject to all
liabilities, obligations and penalties, of the Company and Merger Sub all with
the effect set forth in the NYBCL.
Section 1.02. Filing of Certificate of Merger. Upon the execution of
this Agreement, the parties hereto shall deliver to the Department of State of
the State of New York a certificate of merger (the "Certificate of Merger") and
all other filings or recordings as may be required under the NYBCL and any other
applicable law in connection with the Merger. The Merger shall be effective (the
"Effective Time") upon the filing of the Certificate of Merger with the
Department of State of the State of New York. The Merger shall have the effect
specified in paragraph (b) of section 906 of the NYBCL.
Section 1.03. Certificate of Incorporation and By-Laws. The certificate
of incorporation and by-laws of the Company as in effect immediately prior to
the Effective Time shall be the certificate of incorporation and by-laws of the
Surviving Corporation, except that the certificate of incorporation shall be
amended by deleting clause "Fourth" in its entirety and substituting therefor
the following:
"FOURTH: The aggregate number of shares which the Corporation shall
have the authority to issue is 30,000,000 shares, par value $.01 per
share, and all of one class, which shall be designated Common Stock."
Section 1.04. Directors and Officers; Name. The directors of the
Company immediately prior to the Effective Time shall be the directors of the
Surviving Corporation, and the officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving Corporation, in each case
until his or her successor is duly elected and qualified, or until his or her
earlier death, resignation or removal in accordance with the Surviving
Corporation's certificate of incorporation. The name of the Surviving
Corporation shall be "Xxxxx & Steers Capital Management, Inc."
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Section 1.05. Authorization by Shareholders. This Agreement has been
unanimously approved and adopted by the respective shareholders of the Company
and Merger Sub as required under the NYBCL. Unless this Agreement shall have
been terminated and the transactions herein contemplated shall have been
abandoned pursuant to the provisions of Article III hereof, the Certificate of
Merger, executed in accordance with the NYCBL, shall be filed with the
Department of State of the State of New York.
ARTICLE II
EFFECT OF MERGER ON CAPITAL STOCK OF THE CONSTITUENT ENTITIES
Section 2.01. Effect On Company Common Stock. At the Effective Time,
without any action on the part of any holder of any shares of Company Stock,
each share of Company Stock issued and outstanding immediately prior to the
Effective Time shall be converted into the right to receive one newly issued,
fully paid and nonassessable share of common stock, par value $.01 per share, of
Holdco ("Holdco Stock").
Section 2.02. Effect on Merger Sub Stock. At the Effective Time,
without any action on the part of the holder of Merger Sub Stock, the sole share
of Merger Sub Stock issued and outstanding immediately prior to the Effective
Time shall be converted into and become one newly issued, fully paid and
nonassessable share of common stock, par value $.01 per share, of the Surviving
Corporation.
Section 2.03. Cancellation of Holdco Stock Held by Company. At the
Effective Time, without any action on the part of the holders of shares of
Holdco Stock, all shares of Holdco Stock held by the Company immediately prior
to the Effective Time shall no longer be outstanding and shall automatically be
cancelled without payment of any consideration therefor and shall cease to
exist.
ARTICLE III.
TERMINATION, AMENDMENT AND WAIVER.
Section 3.01. Termination. This Agreement may be terminated at any time
prior to the Effective Time by mutual consent of each of the parties hereto.
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Section 3.02. Amendment. This Agreement may be amended by the parties
hereto, but may not be amended except by an instrument or instruments in writing
signed and delivered on behalf of each of the parties hereto.
Section 3.03. Extension; Waiver. At any time prior to the Effective
Time, any party hereto which is entitled to the benefits hereof may (a) extend
the time for the performance of any of the obligations or other acts of any of
the other parties hereto or (b) waive compliance with any of the agreements of
any of the other parties hereto or conditions contained herein. Any agreement on
the part of a party hereto to any extension or waiver shall be valid even if not
set forth in an instrument in writing signed and delivered on behalf of such
party.
ARTICLE IV
OTHER PROVISIONS
Section 4.01. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
Section 4.02. Governing Law. This Agreement and the rights and duties
of the parties hereunder shall be governed by, and construed in accordance with,
the law of the State of New York.
Section 4.03. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same agreement and
will become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 4.04. Appointment of Agent. The Company agrees that it may be
served with process in the State of New York in any proceeding for enforcement
of any obligation of Merger Sub, as well as for enforcement of any obligation of
the Company arising from the Merger. The Company irrevocably appoints the
Secretary of the State of New York as its agent to accept service of process in
any such suit or proceeding with a copy of such service to be forwarded by the
Secretary of State to the office of the Company at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
on behalf of Xxxxx & Steers, Inc., Xxxxx & Steers Capital Management, Inc. and
CSCM Merger Sub, Inc., all as of the day and year first above written, by the
undersigned duly authorized officers of those corporations, the Agreement and
Plan of Merger having been duly adopted by the board of directors Xxxxx & Steers
Capital Management, Inc. and CSCM Merger Sub, Inc. on _______ ___, 2004.
XXXXX & STEERS, INC.
By: ________________________________
Name:
Title:
XXXXX & STEERS CAPITAL
MANAGEMENT, INC.
By: ________________________________
Name:
Title:
CSCM MERGER SUB, INC.
By: ________________________________
Name:
Title:
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