AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
December 1, 2004, is by and between General American Distributors, Inc., a
corporation duly organized and existing under the laws of the State of Missouri
("GAD"), and MetLife Investors Distribution Company, a corporation duly
organized and existing under the laws of the State of Delaware ("MLI").
WHEREAS, MLI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware; and
WHEREAS, GAD is a corporation duly organized, validly existing and in good
standing under the laws of the State of Missouri; and
WHEREAS, MetLife Investors Group, Inc. ("MIG") owns all of the issued and
outstanding shares of MLI's capital stock ("MLI Stock"); and
WHEREAS, MIG owns all of the issued and outstanding shares of GAD's capital
stock ("GAD Stock"); and
WHEREAS, Delaware General Corporation Law Section 252 authorizes the merger
of a corporation organized under the laws of Delaware into a stock corporation
organized under the laws of another state, and Section 351.458 of the Revised
Statutes of the State of Missouri authorizes the merger of a corporation
organized under the laws of another state into a corporation organized under
the laws of the State of Missouri; and
WHEREAS, GAD, MLI and MIG desire for MLI to merge with and into GAD, which
will survive the merger; and
WHEREAS, the respective Boards of Directors of GAD and MLI have approved the
transaction contemplated hereby and have authorized their respective
representatives to enter into this Agreement on their behalf; and
WHEREAS, MIG, as the sole shareholder of each of MLI and GAD, has approved
MLI's and GAD's 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 contained in the Delaware General Corporation
Law ("GCL") and the Revised Statutes of the State of Missouri ("RSM")
and subject to the receipt of all required governmental approvals, MLI
shall be merged with and into GAD (the "Merger"), effective as of the
Effective Time (as defined in Section 5.1 herein).
1.2 Surviving Corporation. GAD 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 MLI shall cease.
ARTICLE II
TERMS, CONDITIONS AND EFFECTS OF MERGER
2.1 Articles of Incorporation. The Articles of Incorporation, as amended,
of GAD, as in effect immediately prior to the Effective Time, shall be
the Articles of Incorporation of the Surviving Corporation, and shall
be amended and restated by the Merger in the form attached hereto as
"Exhibit A".
2.2 By-laws. The By-laws of GAD, 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 GAD 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 GCL Section 259 and RSM Section 351.450,
including without limitation, the following: (a) the separate
existence of MLI shall cease; (b) all the rights, franchises and
interests of MLI, 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 GAD, without any other deed or transfer;
and (c) GAD shall be deemed to have assumed all the liabilities of XXX.
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XXXXXXX XXX
TREATMENT OF SHARES
3.1 GAD Stock. Each issued and outstanding share of GAD 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 MLI Stock. At the Effective Time, by virtue of the Merger and without
any action on the part of GAD, MLI or any holder of GAD Stock or MLI
Stock, all of the shares of MLI Stock issued and outstanding
immediately prior to the Effective Time shall be surrendered and
extinguished. All issued and outstanding shares of MLI as of the
Effective Time and the certificates representing such shares 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 a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation; (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 B/D, 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 charter and 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 GAD. GAD represents and warrants to
MLI that: (a) (i) the authorized capital stock of GAD consists of
30,000 shares of no par value common stock; and (ii) the issued and
outstanding capital stock of GAD consists of 25,000 shares of no par
value common stock; (b) except for this Agreement, no agreement,
arrangement or commitment relating to the capital stock of GAD exists;
(c) no securities convertible into capital stock of GAD exist; and
(d) at the Effective Time MIG is the sole holder of GAD capital stock
entitled to vote. GAD represents and warrants that the GAD stock is
duly authorized, validly issued, fully paid, non-assessable, free of
any preemptive rights,
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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 GAD 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 the GAD Stock.
4.3 Representations and Warranties of MLI. MLI represents and warrants to
GAD that: (a) (i) the authorized capital stock of MLI consists of
500,000 shares of $0.01 par value common stock, and (ii) the issued
and outstanding capital stock of the Company consists of 50,000 shares
of common stock; (b) except for this Agreement, no agreement,
arrangement or commitment relating to the capital stock of MLI exists;
(c) no securities convertible into capital stock MLI exist; and (d) at
the Effective Time MIG is the sole holder of MLI capital stock
entitled to vote. MLI represents and warrants that the MLI 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 MLI 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 MLI 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) 12:01 a.m, New York Time, on December 1, 2004;
(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 both of
the parties hereto 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
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hereto shall have any liability to any other person by reason of the
termination of this Agreement.
6.2 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri 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 Directors of parties hereto, and in the case
of an interpretation, the actions of such Boards of Directors 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.
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 1/st/ day of
December, 2004.
METLIFE INVESTORS DISTRIBUTION
COMPANY
/s/ Xxxxxxx X. Xxxxxxx
By: -----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
GENERAL AMERICAN DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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Exhibit A
[LOGO OF STATE OF MISSOURI] State of Missouri
Xxxx Xxxxx, Secretary of State
Corporations Division
X.X. Xxx 000 /600 W. Main Street, Rm 322
Xxxxxxxxx Xxxx, XX 00000
Amended and Restated
Articles of Incorporation
Article One
The name of the corporation is MetLife Investors Distribution Company
Article Two
The registered agent's name: Xxxxxxx X. Xxxxxx
The address, including street and number for the registered agent's office in
the state of Missouri:
(P.O. Box may only be used in addition to a physical street address)
000 Xxxxxx Xxxxxx Xx. Xxxxx XX 00000
--------------------- --------------------- ---------------------
Street address City State/Zip
Article Three
(Must complete 1 or 2)
1. If the aggregate number of shares in which the corporation shall have
authority to issue DOES NOT exceed 30,000 shares or the par val ued DOES NOT
exceed $30,000 please check this box: [X]
OR
2. If the aggregate number of shares in which the corporation shall have
authority to issue exceeds 30,000 shares or the par value exceeds $30,000
dollars please indicate the number of shares of each class and the par value
of each share. Also, indicate a statement of the preferences,
qualifications, limitations, restrictions and the special or relative rights
including convertible right, is any, in respect of the shares of each class:
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Article Four
The name and physical business or residence address of each incorporator:
Name Address City/State/Zip
---- ------------------------ ------------------------
Xxxxxxx X. Xxxxxx 0000 Xxxxxxxx Xx. Xxxxx, XX 00000
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
Name and address to return filed document:
Name: MetLife Investors Distribution Company
Address: 00 Xxxxxxxxx Xxxxx Xxxxx
Xxxx, Xxxxx, and Zip Code: Xxxxxxx Xxxxx. XX 00000
Corp. 41 (07/04)
Article Five
The number of years the corporation is to continue or perpetual: (Please
complete one)
[X] Perpetual (check box) OR State number of years______
Article Six
The corporation is formed for the following lawful purpose(s):
To exercise any and all of the powers granted to corporations by the
laws of Missouri as they now exist or may hereafter be amended; to
engage in any and all species of commerce or business not inconsistent
with the laws of Missouri or any other state in which the corporation
may be authorized to transact business.
Article Seven
[ ] The number of directors to constitute the board of
directors:______(optional)
In Affirmation thereof, the facts stated above are true and correct:
(The undersigned understands that false statements made in this filing are
subject to the penalties provided under Section 575.040, RSMo)
Xxxxxxx X. Xxxxxxx
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Signature Printed Name
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Signature Printed Name
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Signature Printed Name
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Signature Printed Name
Corp. 41 (07/04)
