AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made as of this 27th day of May, 2010,
by and between Broadpoint Gleacher Securities Group, Inc., a New York corporation (“Broadpoint”),
and Gleacher & Company, Inc., a Delaware corporation and a wholly owned subsidiary of Broadpoint
(“Gleacher”).
W I T N E S S E T H:
WHEREAS, Broadpoint is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York;
WHEREAS, Gleacher is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware;
WHEREAS, the respective Boards of Directors of Broadpoint and Gleacher have determined that,
for purposes of effecting the reincorporation of Broadpoint in the State of Delaware, it is
advisable, to the advantage of and in the best interests of Gleacher and its stockholder and
Broadpoint and its shareholders that Broadpoint merge with and into Gleacher upon the terms and
subject to the conditions herein provided;
WHEREAS, the parties intend, by executing this Agreement, to adopt a plan of reorganization
within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”),
and to cause the merger described herein to qualify as a reorganization under the provisions of
Section 368 of the Code; and
WHEREAS, the respective Boards of Directors of Broadpoint and Gleacher and the stockholder of
Gleacher have unanimously adopted and approved this Agreement, and the Board of Directors of
Broadpoint has directed that this Agreement be submitted to the shareholders of Broadpoint for
their consideration.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
intending to be legally bound, Broadpoint and Gleacher hereby agree as follows:
1. Merger. Subject to the approval of the shareholders of Broadpoint in accordance
with the New York Business Corporation Law (the “NYBCL”), at such time hereafter as the parties
hereto shall mutually agree, Broadpoint shall be merged with and into Gleacher (the “Merger”), and
Gleacher shall be the surviving company (hereinafter sometimes referred to as the “Surviving
Corporation”). The Merger shall be effective upon (a) the filing of a Certificate of Merger (the
“New York Certificate of Merger”), substantially in the form attached as Exhibit A hereto,
with the office of the New York Secretary of State in accordance with the provisions of Section 907
of the NYBCL; and (b) the filing of a Certificate of Merger (the “Delaware Certificate of Merger”),
substantially in the form attached as Exhibit B hereto, with the Secretary of State of the
State of Delaware in accordance with the applicable provisions of Section 252 of the Delaware
General Corporation Law (the “DGCL”); the date and time of the later of such filings being hereinafter referred to as the “Effective Time.” Following the due approval
of
the Merger by the shareholders of Broadpoint, subject to the provisions of this Agreement, the New
York Certificate of Merger shall be duly executed by Gleacher and Broadpoint and thereafter
delivered to the office of the Secretary of State of the State of New York, and the Delaware
Certificate of Merger shall be duly executed by Gleacher and Broadpoint and thereafter delivered to
the office of the Secretary of State of Delaware.
2. Governing Documents.
a. The Certificate of Incorporation of Gleacher, as amended and restated, shall be the
Certificate of Incorporation of the Surviving Corporation.
b. The Bylaws of Gleacher shall be the Bylaws of the Surviving Corporation.
3. Directors and Officers. The directors of Broadpoint immediately prior to the
Effective Time shall be the directors of the Surviving Corporation, and the officers of Broadpoint
immediately prior to the Effective Time shall be the officers of the Surviving Corporation. Such
directors and officers will hold office from the Effective Time until their respective successors
are duly elected or appointed and qualified in the manner provided in the Certificate of
Incorporation and Bylaws of the Surviving Corporation, as the same may be lawfully amended, or as
otherwise provided by law.
4. Succession; Name of Surviving Corporation. As of the Effective Time, the separate
existence of Broadpoint shall cease and Broadpoint shall be merged with and into Gleacher, and the
name of the Surviving Corporation shall be Gleacher & Company, Inc. As of the Effective Time,
Gleacher shall (i) possess all of the assets, rights, privileges, franchises, powers and property
of Broadpoint as constituted immediately prior to the Effective Time; (ii) be subject to all
actions previously taken by Broadpoint’s Board of Directors; (iii) succeed, without other transfer,
to all of the assets, rights, privileges, franchises, powers and property of Broadpoint in the
manner of and as more fully set forth in Section 259 of the Delaware General Corporation Law; (iv)
continue to be subject to all of the debts, liabilities and obligations of Broadpoint as
constituted immediately prior to the Effective Time; and (v) succeed, without other transfer, to
all of the debts, liabilities and obligations of Broadpoint in the same manner as if Gleacher had
itself incurred them, all as more fully provided under the applicable provisions of the DGCL and
the NYBCL.
5. Further Assistance. From and after the Effective Time, as and when required by
Gleacher or by its successor and assigns, there shall be executed and delivered on behalf of
Broadpoint such deeds and other instruments, and there shall be taken or caused to be taken by it
such further and other action, as shall be appropriate or necessary in order to vest, perfect or
confirm, of record or otherwise, in Gleacher the title to and possession of all the property,
interests, assets, rights, privileges, immunities, power, franchises and authority of Broadpoint,
and otherwise to carry out the purposes of this Agreement, and the officers and directors of
Gleacher are fully authorized in the
name and on behalf of Broadpoint or otherwise to take any and all such action and to execute
and deliver any and all such deeds and other instruments.
6. Manner of Conversion of Securities.
(a) Common Stock. At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of common stock of Broadpoint (“Broadpoint
Common Stock”) outstanding immediately prior to the Effective Time shall be changed and converted
into one fully paid and non-assessable share of common stock of Gleacher (“Gleacher Common Stock”).
Each share of Broadpoint Common Stock issued and outstanding immediately prior to the Effective
Time that is restricted or not fully vested shall upon such conversion have the same restrictions
or vesting arrangements applicable to such shares as prior to the conversion.
(b) Preferred Stock. At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of preferred stock of Broadpoint (“Broadpoint
Preferred Stock”) outstanding immediately prior to the Effective Time shall be changed and
converted into one fully paid and non-assessable share of preferred stock of Gleacher (“Gleacher
Preferred Stock”). Each share of Broadpoint Preferred Stock issued and outstanding immediately
prior to the Effective Time that is restricted or not fully vested shall upon such conversion have
the same restrictions or vesting arrangements applicable to such shares as prior to the conversion.
(c) Options, Warrants and Stock Purchase Rights. At the Effective Time, the Surviving
Corporation shall assume and continue the stock option plans and all other employee benefit, profit
sharing and incentive compensation plans of Broadpoint. Each outstanding and unexercised option,
warrant, and stock purchase right (each, a “Derivative Security”) of Broadpoint shall become a
Derivative Security of the Surviving Corporation on the basis of one share of Gleacher Common Stock
for each share of Broadpoint Common Stock issuable pursuant to any such Derivative Security, on the
same terms and conditions applicable to any such Broadpoint Derivative Security at the Effective
Time. The exercise price for each share of Gleacher Common Stock issuable pursuant to any such
Derivative Security shall be equal to the exercise price applicable to any such Broadpoint
Derivative Security at the Effective Time. No fractional Derivative Security shall be issued upon
the exchange of any Derivative Security of Broadpoint for a Derivative Security of Gleacher.
(d) Reserved Shares. A number of shares of the Surviving Corporation’s Common Stock
and Preferred Stock shall be reserved for issuance upon the exercise of Derivative Securities equal
to the number of shares of Broadpoint Common Stock and Broadpoint Preferred Stock respectively so
reserved immediately prior to the Effective Time.
(e) Broadpoint Repurchase Rights. All outstanding rights of Broadpoint that it may
hold immediately prior to the Effective Time to repurchase unvested shares of Broadpoint Common
Stock (the “Repurchase Options”) shall be
assigned to Gleacher in the Merger and shall thereafter be exercisable by Gleacher upon the
same terms and conditions in effect immediately prior to the Effective Time.
7. Outstanding Stock of Gleacher. At the Effective Time, the 100 shares of Gleacher
Common Stock presently issued and outstanding in the name of Broadpoint shall be canceled and
retired and resume the status of authorized and unissued shares of Gleacher Common Stock, and no
shares of Gleacher Common Stock or other securities of Gleacher Common Stock shall be issued in
respect thereof.
8. Stock Certificates. From and after the Effective Time, all of the outstanding
certificates which prior to that time represented shares of capital stock of Broadpoint shall be
deemed for all purposes to evidence ownership and to represent the shares of capital stock of
Gleacher into which such shares of Broadpoint represented by such certificates have been converted
as herein provided. The registered owner on the books and records of Gleacher or its transfer agent
of any such outstanding stock certificate shall, until such certificate shall have been surrendered
for transfer or otherwise accounted for to Gleacher or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of capital stock of Gleacher evidenced by such outstanding
certificates as above provided. Each certificate representing capital stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Broadpoint so converted and given in
exchange therefor, unless otherwise determined by the Board of Directors of the Surviving
Corporation in compliance with applicable laws, and any additional legends required by applicable
Blue Sky laws. If any certificate for shares of Gleacher stock is to be issued in a name other than
that in which the certificate surrendered in exchange therefor is registered, it shall be a
condition of issuance thereof that the certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer, that such transfer otherwise be proper and that the person
requesting such transfer pay to the exchange agent any transfer or other taxes payable by reason of
the issuance of such new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of Gleacher that such tax has been paid or
is not payable.
9. Validity of Gleacher Common Stock. All shares of Gleacher Common Stock into which
shares of Broadpoint Common Stock are to be converted pursuant to the Merger shall not be subject
to any statutory or contractual preemptive rights, shall, when issued, be validly issued, fully
paid and non-assessable and shall be issued in full satisfaction of all rights pertaining to such
Broadpoint Common Stock.
10. Rights of Former Holders. From and after the Effective Time, no holder of
certificates which evidenced Broadpoint Common Stock immediately prior to the Effective Time shall
have any rights with respect to the shares formerly evidenced by those certificates, other than the
right to receive the shares of Gleacher Common Stock into which such Broadpoint Common Stock shall
have been converted pursuant to the Merger.
11. Abandonment and Termination. At any time before the Effective Time, this Agreement
may be terminated and the Merger may be abandoned by the Board of Directors of either Broadpoint or
Gleacher or both, notwithstanding approval of this Agreement by the sole stockholder of Gleacher
and the shareholders of Broadpoint.
12. Third Parties. Except as provided in this Agreement, nothing herein expressed or
implied is intended or shall be construed to confer upon or give any person, firm or corporation,
other than the parties hereto or their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
13. Covenants of Gleacher. Gleacher covenants and agrees that it will, on or before
the Effective Time:
(a) qualify to do business as a foreign corporation in the State of New York and in connection
therewith irrevocably appoint an agent for service of process as required under the provisions of
the NYBCL;
(b) take such other actions as may be required by the NYBCL in connection with the Merger.
14. Registered Office. The registered office of the Surviving Corporation in the State
of Delaware is located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, in the county of New Castle;
and The Corporation Trust Company is the registered agent of the Surviving Corporation at such
address.
15. Agreement. Executed copies of this Agreement shall be on file at the principal
place of business of the Surviving Corporation at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and copies thereof shall be furnished to any stockholder of either Constituent Corporation,
upon request and without cost.
16. Governing Law. This Agreement shall in all respects be construed, interpreted and
enforced in accordance with and governed by the laws of the State of Delaware.
17. Approval of Broadpoint as Sole Stockholder. By its execution and delivery of this
Agreement, Broadpoint, as sole stockholder of Gleacher, consents to, approves and adopts this
Agreement and the Plan of Merger, and approves the Merger. Broadpoint agrees to execute such
instruments as may be necessary or desirable to evidence its approval and adoption of this
Agreement, the Plan of Merger attached as Exhibit C, and the Merger as the sole stockholder
of Gleacher.
18. Expenses. The Surviving Corporation shall pay all expenses of carrying this
Agreement into effect and accomplishing the Merger.
19. Effective Time. This Agreement and Plan of Merger shall be effective as of the
date of filing of a counterpart of this Agreement or a Certificate of Merger with the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this
Agreement to be executed as of this day and year first above written.
| BROADPOINT GLEACHER SECURITIES GROUP, INC., a New York corporation |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Title: | Secretary and General Counsel | |||
| GLEACHER & COMPANY, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Title: | Director | |||
Exhibit A
to Agreement
to Agreement
CERTIFICATE OF MERGER
OF
BROADPOINT GLEACHER SECURITIES GROUP, INC.
WITH AND INTO
GLEACHER & COMPANY, INC.
(Pursuant to Section 907 of the Business Corporation Law of
the State of New York)
OF
BROADPOINT GLEACHER SECURITIES GROUP, INC.
WITH AND INTO
GLEACHER & COMPANY, INC.
(Pursuant to Section 907 of the Business Corporation Law of
the State of New York)
FIRST: The name of each constituent corporation (each, a “ Constituent Corporation”)
is (i) Broadpoint Gleacher Securities Group, Inc., a New York corporation (“ Broadpoint”),
originally formed under the name First Albany Companies Inc., and (ii) Gleacher & Company, Inc., a
Delaware corporation (“ Gleacher”). In the merger (the “ Merger”) contemplated by
this Certificate of Merger, Broadpoint will merge with and into Gleacher, which will be the
surviving corporation (the “ Surviving Corporation”) in the Merger. The name of the
Surviving Corporation is “Gleacher & Company, Inc.”
SECOND: The designation and number of outstanding shares of each class and series of capital
stock of each Constituent Corporation is as follows:
| Number of Shares Entitled to | ||||
| Name of Constituent Corporation | Designation of Outstanding Shares | Vote | ||
Broadpoint Gleacher
Securities Group, Inc.
|
Common Stock, $0.01 par value;
128,684,035 shares outstanding
|
128,684,035 shares |
||
Preferred stock; $1.00 par
value; 1,000,000 shares
outstanding
|
No shares |
|||
Gleacher & Company, Inc.
|
Common Stock, $1.00 par value;
100 shares outstanding
|
100 shares |
None of the outstanding shares indicated in the table above are entitled to vote as a class on
the Merger. Further, none of the outstanding shares indicated in the table above are subject to
change prior to the effective date of the Merger subject to this Certificate of Merger and the
Certificate of Incorporation of the Surviving Corporation, as described in Article Third of this
Certificate of Merger.
THIRD: The Certificate of Incorporation of Gleacher will be the
Certificate of Incorporation of the Surviving Corporation.
FOURTH: The effective date of the Merger will be May 27, 2010.
FIFTH: The Merger was authorized and approved on behalf of Broadpoint, one of the Constituent
Corporations, by the unanimous vote of its Board of Directors on April 6, 2010 and by the
affirmative vote at the annual meeting of shareholders of Broadpoint, held on May 27, 2010, of the
holders of at least two-thirds of outstanding Broadpoint voting stock. The Merger was authorized
and approved on behalf of Gleacher (the other Constituent Corporation, which is the Surviving
Corporation), (i) by its Board of Directors pursuant to a Unanimous Written Consent dated May 27,
2010, and (ii) by its sole stockholder pursuant to the Agreement and Plan of Merger dated May 27,
2010.
SIXTH: The Certificate of Incorporation of Broadpoint was originally filed with the office of
the Secretary of State of the State of New York on November 4, 1985. The Certificate of
Incorporation of Gleacher was originally filed with the Secretary of the State of Delaware on May
20, 2010. Gleacher filed an application for authority to do business in the State of New York on
May 21, 2010.
SEVENTH: Gleacher agrees that it may be served with process in the State of New York in any
action or special proceeding for the enforcement of any liability or obligation of any domestic
constituent corporation or of any foreign constituent corporation previously amendable to suit in
the State of New York, and for the enforcement under the Business Corporation Law, of the right of
shareholders of any constituent domestic corporation to receive payment for their shares against
the (surviving or consolidated) corporation; and it designates the Secretary of State of New York
as its agent upon whom process against it may be served in the manner set forth in paragraph (b) of
Section 306 of the Business Corporation Law, in any action or special proceeding. The post office
address to which the Secretary of State shall mail a copy of any process against it served upon him
is 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
EIGHTH: Gleacher agrees that, subject to the provision of Section 623 of the Business
Corporation Law, it will promptly pay to the shareholders of each constituent domestic corporation
the amount, if any, to which they shall be entitled under the provisions of the Business
Corporation Law, relating to the right of the shareholders to receive payment for their shares.
NINTH: (i) Broadpoint hereby certifies that all fees and taxes, including penalties and
interest, administered by the Department of Taxation and Finance of the State of New York which are
now due and payable by each constituent domestic corporation have been paid and that a cessation
franchise tax report, estimated or final, through the anticipated date of the (merger) has been
filed by each constituent domestic corporation. (ii) Gleacher hereby agrees that it will within 30
days after the filing of the certificate of (merger) file the cessation franchise tax report, if an
estimated report was previously filed, and promptly pay to the Department of Taxation and Finance
of the State of New York all fees and taxes, including penalties and interest, if any, due to the
Department of Taxation and Finance by each constituent domestic corporation.
TENTH:
The Merger is permitted by the laws of the jurisdiction of the foreign corporation and is in compliance therewith.
[THIS SPACE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Broadpoint Gleacher Securities Group, Inc. has caused this Certificate of
Merger to be signed by Xxxxxxxx X. Xxxxxxx-Xxxxx, its Secretary; and Gleacher & Company, Inc. has
caused this Certificate of Merger to be signed by Xxxxxxxx X. Xxxxxxx-Xxxxx, its Director this 27th
day of May, 2010.
| BROADPOINT GLEACHER SECURITIES GROUP, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Title: | Secretary and General Counsel | |||
GLEACHER & COMPANY, INC. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Title: | Director | |||
Exhibit B
to Agreement
to Agreement
CERTIFICATE OF MERGER
MERGING
BROADPOINT GLEACHER SECURITIES GROUP, INC.
WITH AND INTO
GLEACHER & COMPANY, INC.
MERGING
BROADPOINT GLEACHER SECURITIES GROUP, INC.
WITH AND INTO
GLEACHER & COMPANY, INC.
Pursuant to Section 252 of the General Corporation Law of
the State of Delaware
the State of Delaware
Gleacher & Company, Inc. does hereby certify as follows:
FIRST: That constituent corporation Broadpoint Gleacher Securities Group, Inc.
(“Broadpoint”) was incorporated in the State of New York pursuant to the New York Business
Corporation Law, and Gleacher & Company, Inc. (“Gleacher”) was incorporated pursuant to the
Delaware General Corporation Law (the “DGCL”). The authorized capital stock of Broadpoint
consists of 200,000,000 shares of Common Stock, par value $.01 per share and 1,500,000 shares of
Preferred Stock, par value $1.00 per share.
SECOND: That an Agreement and Plan of Merger (the “Merger Agreement”),
setting forth the terms and conditions of the merger of Broadpoint with and into Gleacher (the
“Merger”), has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 252(c) of the DGCL.
THIRD: That Gleacher shall be the surviving corporation after the Merger (the
“Surviving Corporation”). The name of the Surviving Corporation shall be Gleacher &
Company, Inc.
FOURTH: Upon the effectiveness of the Merger, the Certificate of Incorporation of the
Surviving Corporation shall be amended and restated in its entirety to provide as set forth in
Annex A attached hereto.
FIFTH: That an executed copy of the Merger Agreement is on file at the principal
place of business of the Surviving Corporation at the following address:
Gleacher & Company, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIXTH: That a copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any constituent corporation.
SEVENTH:
That, in accordance with section 103(d) of the General Corporation Law
of the State of Delaware, the Merger shall become effective at 4:01
p.m. Eastern Daylight Time on May 27, 2010.
IN WITNESS WHEREOF, the Surviving Corporation has caused this Certificate of Merger
to be executed in its corporate name as of this 27th day of May, 2010.
| Gleacher & Company, Inc. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxx-Xxxxx | |||
| Title: | Director | |||
ANNEX
A
AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GLEACHER & COMPANY, INC.
CERTIFICATE OF INCORPORATION
OF
GLEACHER & COMPANY, INC.
See Exhibit 3.1 to this Current Report on Form 8-K.
Exhibit C
to Agreement
to Agreement
PLAN OF MERGER
The following corporations are parties to this Plan of Merger: (i) Broadpoint Gleacher
Securities Group, Inc., a New York corporation (“Broadpoint”), originally formed under the
name First Albany Companies Inc., and (ii) Gleacher & Company, Inc., a Delaware corporation
(“Gleacher”).
1. The designation and number of outstanding shares of each class and series of capital stock
of each constituent corporation is as follows:
| Name of | Designation of | Number of Shares | ||
| Constituent Corporation | Outstanding Shares | Entitled to Vote | ||
Broadpoint Gleacher
Securities Group, Inc.
|
Common Stock, $0.01 par value; 128,684,035 shares outstanding | 128,684,035 shares | ||
| Preferred Stock; $1.00 par value; 1,000,000 shares outstanding | No shares | |||
Gleacher & Company, Inc.
|
Common Stock, $1.00 par value; 100 shares outstanding | 100 shares |
None of the outstanding shares indicated in the table above are entitled to vote as a class on
the Merger (as defined below). Further, none of the outstanding shares indicated in the table above
are subject to change prior to the effective date of the Merger.
2. Broadpoint owns all of the outstanding shares of Gleacher.
3. Broadpoint shall be merged with and into Gleacher (the “Merger”).
4. All of the shares of Gleacher outstanding immediately prior to the Merger shall thereupon
be canceled.
5. Upon the Merger, each outstanding share of common stock, $0.01 par value per share, of
Broadpoint (“Broadpoint Common Stock”) shall be converted into one share of common stock,
$0.01 par value per share, of Gleacher (“Gleacher Common Stock”).
6. Upon the Merger, each outstanding share of preferred stock, $1.00 par value per share, of
Broadpoint (“Broadpoint Preferred Stock”) shall be converted into one share of preferred
stock, $1.00 par value per share, of Gleacher (“Gleacher Preferred Stock”).
7. Each holder of Broadpoint Common Stock or Broadpoint Preferred Stock may thereupon
surrender the corresponding share certificate or certificates to the Secretary of Gleacher and
shall be entitled to receive in exchange therefor a certificate or certificates representing the
number of shares into which the shares theretofore represented by a certificate or certificates so
surrendered shall have been converted as provided herein.
8. Upon the Merger, each outstanding and unexercised option, warrant, or other right to
purchase Broadpoint Common Stock shall become an option, warrant, or
other right to purchase
Gleacher Common Stock on the basis of one share of Gleacher Common Stock for each share of
Broadpoint Common Stock issuable pursuant to any such option, warrant, or other stock
purchase right, on the same terms and conditions applicable to any such Broadpoint option,
warrant, or other stock purchase right.
9. Upon the Merger, each outstanding and unexercised option, warrant, or other right to
purchase Broadpoint Preferred Stock shall become an option, warrant, or other right to purchase
Gleacher Preferred Stock on the basis of one share of Gleacher Preferred Stock for each share of
Broadpoint Preferred Stock issuable pursuant to any such option, warrant, or other stock purchase
right, on the same terms and conditions applicable to any such Broadpoint option, warrant, or other
stock purchase right.
10. The officers and directors of Broadpoint immediately preceding the Merger shall be the
officers and directors of Gleacher immediately following the Merger.
11. The Certificate of Incorporation of Gleacher, as amended and restated immediately
following the Merger, shall continue in full force and effect as the Certificate of Incorporation
of the surviving corporation.
12. The Bylaws of Gleacher, as adopted immediately following the Merger, shall continue in
full force and effect as the Bylaws of the surviving corporation.
13. The name of the surviving corporation shall be “Gleacher & Company, Inc.,” a Delaware
corporation.
14. This Plan of Merger shall be effective as of the date of filing of a Certificate of Merger
with the State of Delaware.
