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EXHIBIT 13
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 4, 1997 (this
"Agreement"), between PIMCO Advisors Transitory Merger I L.P., a Delaware
limited partnership (the "First Partnership"), Xxxxxxxxxxx Capital, a Delaware
general partnership (the "Second Partnership"), and PIMCO Advisors L.P., a
Delaware limited partnership ("PALP").
WITNESSETH:
WHEREAS, the Second Partnership desires to acquire the properties
and other assets, and to assume all of the liabilities and obligations, of the
First Partnership by means of a merger of the First Partnership with and into
the Second Partnership;
WHEREAS, Section 17-211 of the Delaware Revised Uniform Limited
Partnership Act, 6 Del.C. Section 17-101, et seq. (the "Delaware RULPA"),
authorizes the merger of a Delaware limited partnership with and into a Delaware
general partnership;
WHEREAS, the First Partnership and the Second Partnership now
desire to merge (the "Merger"), following which the Second Partnership shall be
the surviving general partnership;
WHEREAS, PALP, in its capacity as the general partner of the
First Partnership (the "First GP"), and Value Advisors LLC, a Delaware limited
liability company ("Value Advisors") and a wholly-owned subsidiary of PALP, in
its capacity as the sole limited partner of the First Partnership, have approved
this Agreement and the consummation of the Merger;
WHEREAS, both partners of Second Partnership, Value Advisors, the
managing partner of Second Partnership ("Second GP") and Xxxxxxxxxxx Capital,
L.P., a Delaware limited partnership ("Opcap LP"), have approved this Agreement
and the consummation of the Merger;
NOW THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.01. The Merger.
(a) On such date as the Second GP shall determine, after
satisfaction or, to the extent permitted hereunder, waiver of all conditions to
the Merger, by the First GP and the Second GP, the Second Partnership, which
shall be the surviving general partnership, shall merge with the First
Partnership and shall file a certificate of merger substantially in the form of
Exhibit 1 hereto (the "Certificate of Merger") with the Secretary of State of
the State of Delaware and make all other filings or recordings required by
Delaware law in connection with the Merger. The Merger shall become effective at
such time as is specified in the Certificate of Merger (the "Effective Time").
(b) At the Effective Time, the First Partnership shall be merged
with and into the Second Partnership, whereupon the separate existence of the
First Partnership shall cease, and the Second Partnership shall be the surviving
general partnership of the Merger (the "Surviving Partnership") in accordance
with Section 17-211 of the Delaware RULPA.
SECTION 1.02. Exchange of Interests. At the Effective Time:
(a) The general partner and limited partner interests in the
First Partnership outstanding immediately prior to the Effective Time shall be
exchanged for the partnership interests in Second Partnership held by Opcap LP,
and all rights in, title to, and interest in, the partnership interests held by
Opcap LP in Second Partnership shall automatically vest in PALP and Value
Advisors in accordance with their percentage ownership interest in the First
Partnership, and shall be owned by PALP and Value Advisors, free and clear of
any lien, claim or interest of any person or entity, and the general partner and
limited partner interests in the First Partnership shall cease to be outstanding
upon such exchange; and
(b) The partnership interest in the Second Partnership held by
Opcap LP outstanding immediately prior to the Effective Time shall be exchanged
for 24,981,285 Class A GP Units in PALP, and all rights in, title to, and
interest in, such Class A GP Units in PALP shall automatically vest and be owned
by Opcap LP free and clear of any lien, claim or interest of any person or
entity.
ARTICLE II
THE SURVIVING PARTNERSHIP
SECTION 2.01. Partnership Agreement. The amended and restated
partnership agreement of the Second Partnership, as amended, in effect at the
Effective
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Time shall be the partnership agreement of the Surviving Partnership unless and
until amended in accordance with its terms and applicable law. The name of the
Surviving Partnership shall be Xxxxxxxxxxx Capital. The partners of the
Surviving Partnership at the Effective Time shall be Value Advisors and PALP.
PALP shall automatically be admitted as a partner of the Surviving Partnership
at the Effective Time. Immediately after the admission of PALP as a partner of
the Surviving Partnership, Opcap LP shall cease to be a partner of the Surviving
Partnership and shall own no partnership interest in Surviving Partnership. At
the Effective Time, the business of the Second Partnership shall, to the fullest
extent permitted by law, be continued by Value Advisors, as Managing Partner,
and PALP, as the other partner of the Surviving Partnership, without dissolution
and winding up.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. At the
Effective Time, the Second Partnership shall continue in existence as the
Surviving Partnership, and without further transfer, succeed to and possess all
of the rights, privileges and powers of the First Partnership, and all of the
assets and property of whatever kind and character of the First Partnership
shall vest in the Second Partnership without further act or deed; thereafter,
the Second Partnership, as the Surviving Partnership, shall be liable for all of
the liabilities and obligations of the First Partnership, and any claim or
judgment against the First Partnership may be enforced against the Second
Partnership, as the Surviving Partnership, in accordance with Section 17-211 of
the Delaware RULPA.
SECTION 3.02. Further Assurances. If at any time the Second
Partnership shall consider or be advised that any further assignment, conveyance
or assurance is necessary or advisable to vest, perfect or confirm of record in
the Surviving Partnership the title to any property, or right of the First
Partnership, or otherwise to carry out the provisions hereof, the proper
representatives of the First Partnership as of the Effective Time shall execute
and deliver any and all proper deeds, assignments, and assurances and do all
things necessary or proper to vest, perfect or convey title to such property, or
right in the Surviving Partnership, and otherwise to carry out the provisions
hereof.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SECOND PARTNERSHIP
The Second Partnership represents and warrants to the First
Partnership that:
SECTION 4.01. Partnership Existence and Power. The Second
Partnership is a general partnership duly formed and validly existing under the
laws of the State of Delaware.
SECTION 4.02. Partnership Authorization. The execution, delivery
and performance by the Second Partnership of this Agreement and the consummation
by the Second Partnership of the transactions contemplated hereby have been duly
authorized by all necessary partnership action on its part. This Agreement
constitutes a valid, binding and enforceable agreement of the Second
Partnership.
SECTION 4.03. Governmental Authorization. The execution, delivery
and performance by the Second Partnership of this Agreement and the consummation
of the Merger by the Second Partnership require no action by or in respect of,
or filing with, any governmental body, agency, official or authority other than
the filing of the Certificate of Merger in accordance with Delaware law.
SECTION 4.04. No Violation. The execution, delivery and
performance by the Second Partnership of this Agreement and the consummation by
the Second Partnership of the transactions contemplated hereby do not and will
not (i) violate the partnership agreement of the Second Partnership, (ii)
violate any provision of any law, rule or regulation applicable to the Second
Partnership, (iii) breach, or result in a default under, any existing obligation
of the Second Partnership under any provision of any agreement, contract or
other instrument to which the Second Partnership is a party or by which it or
its property is bound or (iv) breach or otherwise violate any existing
obligation of the Second Partnership under any court or administrative order,
writ, judgment or decree that names the Second Partnership and is specifically
directed to it or its property.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE FIRST PARTNERSHIP
The First Partnership represents and warrants to the Second
Partnership that:
SECTION 5.01. Partnership Existence and Power. The First
Partnership is a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware.
SECTION 5.02. Partnership Authorization. The execution, delivery
and performance by the First Partnership of this Agreement and the consummation
by the First Partnership of the transactions contemplated hereby have been duly
authorized by all necessary partnership action on its part. This Agreement
constitutes a valid, binding and enforceable agreement of the First Partnership.
SECTION 5.03. Governmental Authorization. The execution, delivery
and performance by the First Partnership of this Agreement and the consummation
of the Merger by the First Partnership require no action by or in respect of, or
filing with, any governmental body, agency, official or authority.
SECTION 5.04. No Violation. The execution, delivery and
performance by the First Partnership of this Agreement and the consummation by
the First Partnership of the transactions contemplated hereby do not and will
not (i) violate the partnership agreement of the First Partnership, (ii) violate
any provision of any law, rule or regulation applicable to the First
Partnership, (iii) breach, or result in a default under, any existing obligation
of the First Partnership under any provision of any agreement, contract or other
instrument to which the First Partnership is a party or by which it or its
property is bound or (iv) breach or otherwise violate any existing obligation of
the First Partnership under any court or administrative order, writ, judgment or
decree that names the First Partnership and is specifically directed to it or
its property.
ARTICLE VI
CONDITIONS TO THE MERGER
SECTION 6.01. Conditions to the Obligations of Each Party. The
obligations of the Second Partnership and the First Partnership to consummate
the Merger are subject to the satisfaction of the following conditions as of the
Effective Time:
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(i) no provision of any applicable law or regulation and
no judgment, injunction, order or decree shall prohibit the
consummation of the Merger; and
(ii) all actions by or in respect of or filings with any
governmental body, agency, official or authority required to
permit the consummation of the Merger shall have been obtained;
and
(iii) all applicable waiting periods (and any extensions
thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976 shall have expired or terminated.
ARTICLE VII
COVENANT OF PALP
PALP shall not engage in a Recapitalization (as defined in PALP's
Amended and Restated Agreement of Limited Partnership dated October 31, 1997)
prior to the Effective Time.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time:
(i) by mutual written consent of the Second GP, on behalf
of the Second Partnership, and the First GP, on behalf of the
First Partnership; or
(ii) by either the Second GP, on behalf of the Second
Partnership, or the First GP, on behalf of the First Partnership,
if there shall be any law or regulation that makes consummation
of the Merger illegal or otherwise prohibited, or if any
judgment, injunction, order or decree enjoining the First
Partnership or the Second Partnership from consummating the
Merger is entered and such judgment, injunction, order or decree
shall become final and nonappealable.
SECTION 7.02. Effect of Termination. If this Agreement is
terminated pursuant to Section 7.01, this Agreement shall become void and of no
effect with no liability on the part of any party hereto.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. General Partner Authorization. Each partner of the
Surviving Partnership shall be authorized, at such time in its sole discretion
as it deems appropriate to execute, acknowledge, verify, deliver, file and
record, for and in the name of the Second Partnership and, to the extent
necessary, the Second GP, the partners of the Second Partnership, the First GP
and the limited partner of the First Partnership, any and all documents and
instruments including, without limitation, the partnership agreement of the
Surviving Partnership and the Certificate of Merger, and shall do and perform
any and all acts required by applicable law which either partner of the
Surviving Partnership deems necessary or advisable, in order to effectuate the
Merger.
SECTION 8.02. Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time or the termination of this Agreement.
SECTION 8.03. Amendments; No Waivers. (a) Any provision of this
Agreement may, subject to applicable law, be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed by the Second GP, on behalf of the Second Partnership, and by the First
GP, on behalf of the First Partnership.
(b) No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 8.04. Integration. All prior or contemporaneous
agreements, contracts, promises, representations, and statements, if any,
between the First Partnership and the Second Partnership, or their
representatives, are merged into this Agreement, and this Agreement shall
constitute the entire understanding between the First Partnership and the Second
Partnership with respect to the subject matter hereof.
SECTION 8.05. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party hereto.
SECTION 8.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
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SECTION 8.07. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received the counterpart hereof signed by the other party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first above written.
PIMCO ADVISORS TRANSITORY
MERGER I L.P.
By: PIMCO Advisors L.P.,
its general partner
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
By: Value Advisors LLC,
its Limited Partner
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXXXXXXX CAPITAL
By: Value Advisors LLC,
its Managing Partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
By: Xxxxxxxxxxx Capital, L.P., a Partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
PIMCO ADVISORS L.P.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
