Exhibit 1(a)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
October 20, 2006, is by and between MetLife Investors Distribution Company, a
corporation duly organized and existing under the laws of the State of Missouri
("MLIDC"), and MLI Distribution LLC, a limited liability company duly organized
and existing under the laws of the State of Delaware (formerly known as
Travelers Distribution LLC) ("TDLLC").
WHEREAS, MLIDC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri; and
WHEREAS, TDLLC is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware; and
WHEREAS, MetLife Investors Group, Inc. ("MLIG") owns all of the issued
and outstanding shares of MLIDC's capital stock ("MLIDC Stock"); and
WHEREAS, MLIG owns all of the member interests in TDLLC ("TDLLC
Membership Interests"); and
WHEREAS, ss. 18-209 of the Delaware Limited Liability Company Act
authorizes the merger of a limited liability company organized under the laws of
Delaware into a stock corporation organized under the laws of another state, and
Section 351.461 of the Revised Statutes of the State of Missouri authorizes the
merger of a limited liability company organized under the laws of another state
into a corporation organized under the laws of the State of Missouri; and
WHEREAS, MLIG, TDLLC and MLIDC desire for TDLLC to merge with and into
MLIDC, which will survive the merger; and
WHEREAS, the Board of Directors of MLIDC and the Board of Managers of
TDLLC have approved the Merger (as defined below) and have authorized their
respective representatives to enter into this Agreement on their behalf; and
WHEREAS, MLIG, as the sole shareholder of MLIDC and as the sole member
of TDLLC, has approved the Merger and MLIDC and TDLLC entering into this
Agreement.
NOW THEREFORE, the parties hereto, in consideration of the mutual
covenants, agreements and provisions hereinafter contained, do hereby agree upon
and prescribe the terms and conditions of such merger and the mode of carrying
it into effect, as follows:
ARTICLE I
MERGER AND SURVIVING CORPORATION
1.1 THE MERGER. Upon the terms and subject to the conditions hereof and in
accordance with the provisions pertaining to the merging of domestic
and foreign corporations and limited liability companies contained in
the Delaware Limited Liability Company Act ("DLLCA") and the Revised
Statutes of the State of Missouri ("RSM") and subject to the receipt of
all required governmental approvals, TDLLC shall be merged with and
into MLIDC (the "Merger"), effective as of the Effective Time (as
defined in Section 5.1 herein).
1.2 SURVIVING CORPORATION. MLIDC shall be the surviving corporation in the
Merger under the name MetLife Investors Distribution Company (the
"Surviving Corporation"). At the Effective Time, the separate existence
of TDLLC shall cease.
ARTICLE II.
TERMS, CONDITIONS AND EFFECTS OF MERGER
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation, as amended,
of MLIDC, as in effect immediately prior to the Effective Time, shall
be the Articles of Incorporation of the Surviving Corporation, and
shall not be amended by the Merger.
2.2 BY-LAWS. The By-laws of MLIDC, as in effect immediately prior to the
Effective Time, shall be the By-laws of the Surviving Corporation, and
shall not be amended by the Merger.
2.3 DIRECTORS AND OFFICERS. The directors and officers of MLIDC immediately
prior to the Effective Time shall continue to be the directors and
officers of the Surviving Corporation until their respective successors
shall have been elected and qualified as provided by the By-laws of the
Surviving Corporation and Missouri law.
2.4 EFFECTS OF THE MERGER. At the Effective Time, the Merger shall have the
effects specified in ss. 18-209 of the DLLCA and RSM Section 351.450,
including without limitation, the following: (a) the separate existence
of TDLLC shall cease; (b) all the rights, franchises and interests of
TDLLC, in and to every species of property, real, personal and mixed,
and things in action thereunto belonging, shall be deemed transferred
to and vested in MLIDC, without any other deed or transfer; and (c)
MLIDC shall be deemed to have assumed all the liabilities of TDLLC.
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ARTICLE III.
TREATMENT OF SHARES AND MEMBERSHIP INTEREST
3.1 MLIDC STOCK. Each issued and outstanding share of MLIDC Stock shall not
be affected by the Merger and shall continue to be outstanding at and
after the Effective Time without any change and shall continue as a
share of capital stock of the Surviving Corporation.
3.2 TDLLC MEMBERSHIP INTEREST. At the Effective Time, by virtue of the
Merger and without any action on the part of TDLLC, MLIDC or any holder
of a membership interest in TDLLC or MLIDC Stock, all of the TDLLC
Membership Interests shall be surrendered and extinguished. All TDLLC
Membership Interests as of the Effective Time and any instruments
representing such membership interests shall be cancelled and retired,
all rights in respect thereof shall cease to exist, and no shares or
other securities of the Surviving Corporation shall be issued in
respect thereof.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each party represents
and warrants to the other party that: (a) it is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (b) it has the corporate power and
authority, and has taken all necessary corporate action, to execute,
deliver and perform this Agreement; (c) this Agreement is a legal,
valid and binding obligation upon such party and is enforceable against
such party in accordance with its terms (assuming valid authorization,
execution and delivery of this Agreement by such other party); (d) it
is duly registered as a broker-dealer with the Securities and Exchange
Commission ("SEC") and each jurisdiction identified in its respective
Form BD, and is a member in good standing of NASD, Inc.; and (e)
execution of this Agreement and consummation of the transactions
contemplated hereby will not conflict with, or cause such party to be
in violation of, (i) its organizational documents or By-laws, (ii) any
other agreement to which it is a party (except for any such violations
which, individually or in the aggregate, would not have a material
adverse effect upon the performance of such party's obligations under
this Agreement), or (iii) any federal, state or local law, statute,
regulation, rule, code, ordinance, judgment, decree or order to which
it is subject.
4.2 REPRESENTATIONS AND WARRANTIES OF TDLLC. TDLLC represents and warrants
to MLIDC that: (a) MLIG is the sole member of TDLLC, and (b) the TDLLC
Membership Interests are free and clear of, and not subject to, any
form of hypothecation, pledge, lien, or other restriction on transfer
under any federal, state or local law, statute, regulation, rule, code,
ordinance, judgment, decree, order or agreement to which TDLLC is
subject, and the
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consummation of the transactions contemplated hereby shall not result
in any such hypothecation, pledge, lien, or other restriction on
transfer upon the TDLLC Membership Interests.
4.3 REPRESENTATIONS AND WARRANTIES OF MLIDC. MLIDC represents and warrants
to TDLLC that: (a) (i) the authorized capital stock of MLIDC consists
of 30,000 shares of common stock with no par value, and (ii) the issued
and outstanding capital stock of MLIDC consists of 25,000 shares of
common stock; (b) except for this Agreement, no agreement, arrangement
or commitment relating to the capital stock of MLIDC exists; (c) no
securities convertible into capital stock MLIDC exist; and (d) MLIG is
the sole holder of MLIDC capital stock entitled to vote. MLIDC
represents and warrants that the MLIDC Stock is duly authorized,
validly issued, fully paid, non-assessable, free of any preemptive
rights, and free and clear of, and not subject to, any form of
hypothecation, pledge, lien or other restriction on transfer under any
federal, state or local law, statute, regulation, rule, code,
ordinance, judgment, decree, order or agreement to which MLIDC is
subject, and the consummation of the transactions contemplated hereby
shall not result in any such hypothecation, pledge, lien, or other
restriction on transfer upon MLIDC Stock.
ARTICLE V.
EFFECTIVE TIME
5.1 EFFECTIVE TIME. The Merger shall become effective (such time referred
to herein as the "Effective Time") as of the latest of:
(a) 4:01 p.m, New York time, on October 20, 2006;
(b) the date on which the Secretary of State of the State of
Missouri issues a certificate of merger; or
(c) the date on which a certificate of merger is filed with the
Department of State of the State of Delaware.
ARTICLE VI.
MISCELLANEOUS
6.1 TERMINATION. Notwithstanding anything to the contrary in this
Agreement, this Agreement may be terminated at any time before the
Effective Time by the consent of the Boards of Directors of MLIDC and
the Board of Managers of TDLLC (each, a "Board" and together, the
"Boards") or by the unilateral action of either of these Boards, if the
terminating Board determines, in its sole discretion, that the
consummation of this Agreement is, for any reason, inadvisable. None of
the parties hereto shall have any liability to any other person by
reason of the termination of this Agreement.
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6.2 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without regard to
principles of conflict of laws.
6.3 AMENDMENT. Anything herein or elsewhere to the contrary
notwithstanding, to the extent permitted by law, this Agreement may be
amended, supplemented or interpreted at any time by action taken by the
respective Boards of the parties hereto, and in the case of an
interpretation, the actions of such Boards shall be binding.
6.4 BINDING AGREEMENT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors
and assigns.
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6.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall be deemed one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers on the 20th day of
October, 2006.
METLIFE INVESTORS DISTRIBUTION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Executive Vice President
MLI DISTRIBUTION LLC
By: /s/ Xxxxxxxxx X. Forget
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Xxxxxxxxx X. Forget
Vice President
This Agreement has been authorized and approved in accordance with Section
347.720 of the RSM.
METLIFE INVESTORS DISTRIBUTION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Executive Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Assistant Secretary
MLI DISTRIBUTION LLC
By: /s/ Xxxxxxxxx X. Forget
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Xxxxxxxxx X. Forget
Vice President
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