EXHIBIT 2.01
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "AGREEMENT"), dated as of
December 19, 2005, is made by and between Lazard Group LLC, a Delaware limited
liability company ("LAZARD GROUP"), and Lazard Group Finance LLC, a Delaware
limited liability company ("LAZARD GROUP FINANCE").
W I T N E S S E T H:
WHEREAS, each of the parties hereto desire to enter into a transaction
whereby Lazard Group Finance will merge with and into Lazard Group (the
"MERGER"), with Lazard Group continuing as the surviving entity after the
Merger, upon the terms and subject to the conditions set forth in this
Agreement, in accordance with Section 18-209 of the Delaware Limited Liability
Company Act (6 DEL.C., 18-101, ET SEQ.), as amended from time to time (the
"ACT");
WHEREAS, the board of directors of Lazard Group has approved this
Agreement and the transactions contemplated hereby, including the Merger, and
determined that the Merger is advisable and in the best interest of Lazard
Group's members;
WHEREAS, the managing member of Lazard Group has approved this
Agreement and the transactions contemplated hereby, including the Merger;
WHEREAS, the terms of the Lazard Group Finance Securities (as defined
in the Lazard Group Finance Operating Agreement (as amended from time to time,
the "LAZARD GROUP FINANCE OPERATING AGREEMENT"), dated as of May 10, 2005)
permit the Merger;
WHEREAS, the board of directors of Lazard Group Finance has
unanimously approved this Agreement and the transactions contemplated hereby,
including the Merger, and determined that the Merger is advisable and in the
best interest of its members; and
WHEREAS, the managing members of Lazard Group Finance have approved
this Agreement and the transactions contemplated hereby, including the Merger,
and determined that the Merger is advisable and in the best interest of its
members.
NOW, THEREFORE, in consideration of the covenants and agreements
contained in this Agreement, and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE I
TERMS OF THE MERGER
1.1 THE MERGER
(a) Subject to the terms and conditions herein, Lazard Group Finance
will merge with and into Lazard Group at the Effective Time (as defined below).
Lazard Group shall be the surviving entity (sometimes referred to herein as the
"SURVIVING LLC") in the Merger and
shall continue its separate limited liability company existence under the laws
of the State of Delaware in accordance with Section 18-209 of the Act. Upon
consummation of the Merger, the separate limited liability company existence of
Lazard Group Finance shall cease.
(b) The Merger shall become effective (the "EFFECTIVE TIME") upon the
filing of the certificate of merger of Lazard Group Finance with and into Lazard
Group, to be filed by Lazard Group with the Secretary of State of the State of
Delaware.
(c) At and after the Effective Time, the Merger shall have the effects
set forth in the Act (including Section 18-209(g) thereof).
1.2 CERTIFICATE OF FORMATION
The Certificate of Formation of Lazard Group, filed with the office of
the Secretary of State of the State of Delaware on March 2, 2000, as amended by
the Certificate of Amendment filed with the office of the Secretary of State of
the State of Delaware on May 10, 2005 (the "CERTIFICATE OF FORMATION"), shall be
the Certificate of Formation of the Surviving LLC until thereafter amended in
accordance with applicable law. The name of the Surviving LLC shall be "Lazard
Group LLC."
1.3 LAZARD GROUP OPERATING AGREEMENT
The Lazard Group Operating Agreement (as amended from time to time,
the "LAZARD GROUP OPERATING AGREEMENT"), dated as of May 10, 2005, as amended by
Amendment No. 1 in the form included as EXHIBIT A ("AMENDMENT NO. 1"), which
amendment shall be effective at the Effective Time by virtue of the Merger,
shall be the "limited liability company agreement" of the Surviving LLC until
thereafter amended in accordance with its terms and with applicable law.
1.4 DIRECTORS
The directors of the Surviving LLC shall be the directors of Lazard
Group immediately prior to the Effective Time, and such directors, together with
any additional directors as may thereafter be elected, shall hold such office
until such time as their successors shall be duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Lazard Group Operating Agreement.
1.5 OFFICERS
The officers of the Surviving LLC shall be the officers of Lazard
Group immediately prior to the Effective Time, and such officers, together with
any additional officers as may thereafter be elected or appointed, shall hold
such office until such time as their successors shall be duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Lazard Group Operating Agreement.
1.6 MANAGING MEMBER
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At the Effective Time, each of Lazard Ltd Sub A and Lazard Ltd Sub B
(as defined in SCHEDULE A), each an indirect, wholly owned subsidiary of Lazard
Ltd, a Bermuda exempted company, shall be admitted as the Managing Members (as
defined in the Lazard Group Operating Agreement) of the Surviving LLC in
accordance with the Lazard Group Operating Agreement, and effective at the
Effective Time, Lazard Group Finance shall cease to be as the Managing Member
(as defined in the Lazard Group Operating Agreement).
1.7 CLOSING
The closing of the Merger shall take place at such time, on such date
and at such location as may be specified by Lazard Group.
ARTICLE II
CANCELLATION OF LAZARD GROUP FINANCE INTERESTS
2.1 CANCELLATION OF INTERESTS
At the Effective Time, by virtue of the Merger and without any action
on the part of Lazard Group Finance or Lazard Group, or any holder of Class I
Interests and/or Class II Interests (each as defined in the Lazard Group Finance
Operating Agreement) or any Member (as defined in the Lazard Group Operating
Agreement):
(a) each Class I Interest and Class II Interest shall be
automatically cancelled and no interests of any kind (including any
Interests (as defined in the Lazard Group Operating Agreement) in
Lazard Group) or other consideration shall be issued or delivered in
exchange therefor to the holders of such Class I Interests and/or
Class II Interests; and
(b) each Interest in Lazard Group issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding and shall not be affected, altered or modified in any
respect by reason of the Merger.
ARTICLE III
MISCELLANEOUS
3.1 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to each of the other parties.
3.2 SEVERABILITY
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any applicable rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
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adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
3.3 HEADINGS
The section headings contained in this Agreement are inserted for
convenience of reference only and will not affect the meaning or interpretation
of this Agreement.
3.4 NOTICES
All notices, consents, waivers and other communications required or
permitted by this Agreement shall be in writing and shall be deemed given to a
party when (i) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (ii) sent by facsimile
with confirmation of transmission by the transmitting equipment; or (iii)
received or rejected by the addressee, if sent by certified mail, return receipt
requested, in each case to the following addresses and facsimile numbers and
marked to the attention of the person (by name or title) designated below (or to
such other address, facsimile number or person as a party may designate by
notice to the other parties):
If to Lazard Group, to:
Lazard Group LLC
30 Rockefeller Plaza
New York, New York 10020
Attention: General Counsel
Fax: (212) 332-5972
If to Lazard Group Finance, to:
Lazard Group Finance LLC
30 Rockefeller Plaza
New York, New York 10020
Attention: Board of Directors
Fax: (212) 332-5972
3.5 GOVERNING LAW
This Agreement and performance hereunder shall be governed by and
construed in accordance with the laws of the State of Delaware without reference
to the choice of law principles thereof. To the fullest extent permitted by law,
the parties hereby agree that all actions or proceedings arising out of or in
connection with this Agreement or the transactions contemplated hereby, or for
recognition and enforcement of any judgment arising out of or in connection with
this Agreement shall be tried and determined exclusively in the state or federal
courts in the State of Delaware and the parties hereby irrevocably submit with
regard to any such action or proceeding for itself and with respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts.
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3.6 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns; provided, however, that
this Agreement and the rights and obligations hereunder shall not be assignable
or transferable by any party without the prior written consent of the other
parties.
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused to
be executed this Agreement as of the date first above written.
LAZARD GROUP LLC
By: /s/ Michael J. Castellano
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Name: Michael J. Castellano
Title: Managing Director &
Chief Financial Officer
LAZARD GROUP FINANCE LLC
By: /s/ Scott D. Hoffman
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Name: Scott D. Hoffman
Title: Vice President & Secretary
[SIGNATURE PAGE TO MERGER AGREEMENT]