Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT AND PLAN OF MERGER")
is dated as of July 2, 2002, by and between Tyco Capital Holding, Inc., a Nevada
corporation ("PARENT") and CIT Group Inc., a Nevada corporation ("SUBSIDIARY").
WHEREAS, Parent owns all of the issued and outstanding shares of the
capital stock of Subsidiary; and
WHEREAS, Parent is desirous of merging Subsidiary with and into Parent;
and
WHEREAS, pursuant to Parent's and Subsidiary's respective Articles of
Incorporation and By-Laws, the Boards of Directors of Parent and Subsidiary have
each approved and adopted this Agreement providing for the merger (the "MERGER")
of Subsidiary with and into Parent in accordance with the applicable provisions
of the Nevada General Corporation Law (the "NGCL") and upon the terms and
subject to the conditions set forth herein; and
WHEREAS, Parent and Subsidiary intend (i) that the Merger shall
constitute a "liquidation" within the meaning of Section 332 of the Internal
Revenue Code of 1986, as amended and the regulations promulgated thereunder (the
"CODE"), (ii) by approving resolutions authorizing this Agreement, to adopt this
Agreement as a plan of liquidation within the meaning of Section 332 of the Code
and (iii) that the transactions contemplated by this Agreement be undertaken
pursuant to such plan;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent and Subsidiary hereby agree as follows:
Section 1. THE MERGER. At the Effective Time, and subject to and upon the
terms and conditions of this Agreement and the NGCL, Subsidiary shall be merged
with and into Parent, the separate corporate existence of Subsidiary shall
cease, and Parent shall continue as the surviving corporation (hereinafter
sometimes referred to as the "Surviving Corporation").
Section 2. EFFECTIVE TIME. Unless this Agreement shall have been
terminated, the parties hereto shall cause the Merger to be consummated by
filing articles of merger as contemplated by the NGCL (the "Articles of
Merger"), together with any required related certificates, with the Secretary of
State of the State of Nevada, as appropriate, in such forms as required by, and
executed in accordance with the relevant provisions of, the NGCL. The Merger
shall become effective at the time of the later to occur of such filings or at
such later time specified in the Articles of Merger (the "Effective Time").
Section 3. EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Articles of Merger and the
applicable provisions of the NGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time all the property, rights,
privileges, powers and franchises of Subsidiary and Parent shall vest in the
Surviving Corporation, and all debts, liabilities and duties of Subsidiary and
Parent shall become the debts, liabilities and duties of the Surviving
Corporation.
Section 4. EFFECT ON SECURITIES, ETC. At the Effective Time, by virtue of
the Merger and without any action on the part of Parent or Subsidiary, each
share of capital stock of Subsidiary issued and outstanding immediately prior to
the Effective Time shall be canceled and cease to exist without any
consideration being payable therefor.
Section 5. ARTICLES OF INCORPORATION; BY-LAWS. (a) At the Effective Time,
the Articles of Incorporation of Parent, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended as provided by law and such Articles of
Incorporation of the Surviving Corporation.
(b) At the Effective Time, the By-laws of Parent, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended.
Section 6. DIRECTORS AND OFFICERS. The directors of Parent immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and By-laws of the Surviving Corporation, and the officers of
Subsidiary immediately prior to the Effective Time shall be the initial officers
of the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
Section 7. TAX CONSEQUENCES. The parties hereto intend that the Merger
shall constitute a liquidation of Subsidiary within the meaning of Section 332
of the Code. The parties hereto hereby adopt this Agreement as a "plan of
liquidation" within the meaning of Section 332 of the Code and Section 1.332-6
of the United States Treasury Regulations.
Section 8. TAKING OF NECESSARY ACTION; FURTHER ACTION. Each of Parent and
Subsidiary will take, and cause their affiliates to take, all such reasonable
and lawful actions as may be necessary or appropriate in order to effectuate the
Merger and the other transactions contemplated by this Agreement in accordance
with this Agreement as promptly as possible. If, at any time after the Effective
Time, any such further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of Subsidiary and Parent, the officers and directors of
Subsidiary and Parent immediately prior to the Effective Time are fully
authorized in the name of their respective corporations or otherwise to take,
and will take, all such lawful and necessary action.
Section 9. TERMINATION OF MERGER. At any time after filing of the
Articles of Merger with the Secretary of State of Nevada but prior to the
Effective Time, Parent and Subsidiary may terminate the Merger by mutual
agreement and the filing of articles of termination in accordance with the NGCL.
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
by the duly authorized representatives of each of the above named corporations,
effective as of the day and year first above written.
TYCO CAPITAL HOLDING, INC.
By:
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Name:
Title:
CIT GROUP INC.
By:
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Name:
Title:
