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Exhibit 2
AGREEMENT AND PLAN OF MERGER
June 30, 1999
PARTIES
- - Salomon Smith Barney Holdings Inc., ("Mergeco"), a Delaware corporation
- - SSBHI Merger Company Inc. ("Surviveco"), a New York corporation
BACKGROUND
Mergeco and Surviveco desire to merge Mergeco into Surviveco with the results
that
(i) Surviveco be the surviving corporation;
(ii) each holder of capital stock of Mergeco will receive in exchange for
each share of its capital stock an equivalent share of capital stock of
Surviveco;
(iii) the sole shareholder of all the capital stock of Surviveco will have
its shares (with the exception of any shares received pursuant to (ii)
above) cancelled;
(iv) the certificate of incorporation of the surviving corporation will be
amended as provided in this plan of merger, including changing the name
of the surviving corporation to "Salomon Smith Barney Holdings Inc."
AGREEMENT AND PLAN OF MERGER
Section 1. Constituent corporations
The constituent corporations are Salomon Smith Barney Holdings Inc., a Delaware
corporation ("Mergeco") and SSBHI Merger Company Inc., a New York corporation
("Surviveco").
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Surviveco is the surviving corporation.
Mergeco was incorporated March 14, 1960 in Delaware.
Surviveco was incorporated February 23, 1977 in New York.
Section 2. Capital Stock
The outstanding shares of capital stock of Mergeco consist of 1,000 shares of
common stock having a par value of one cent ($.01) per share, all of which are
entitled to vote.
The outstanding shares of capital stock of Surviveco consist of 10 shares of
common stock having no par value, all of which are entitled to vote.
Section 3. Terms and conditions of Merger
(a) On July 1, 1999 (the "Effective Date"), the separate existence of Mergeco
shall cease and it shall be merged into Surviveco (the "Merger"). Surviveco
shall (i) be the surviving corporation, (ii) continue to be governed by the
laws of the State of New York and (iii) continue under the name "Salomon
Smith Barney Holdings Inc."
(b) The by-laws of Mergeco as restated on the date hereof shall be the by-laws
of the surviving corporation.
(c) The directors of Mergeco immediately prior to the Merger shall continue in
office as directors of the surviving corporation after the Merger until
their successors are elected and qualified. On the Effective Date, the
directors and officers of Surviveco immediately prior to the merger shall
cease to be directors and officers of the surviving corporation.
(d) The resolutions of the board of directors of Mergeco in existence prior to
the Merger shall survive the Merger, and all the resolutions of Surviveco
(except for those relating to the Merger) shall be revoked as of the
Effective Date.
Section 4. Manner of converting shares.
(a) Each share of common stock of Mergeco issued and outstanding on the
Effective Date shall on the Effective Date, without any action on the part
of the holder of such share, become a fully paid and non-assessable share
of common stock of the surviving corporation.
(b) Each share of capital stock of Surviveco issued and outstanding on the
Effective Date
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shall on and after the Effective Date, without any action on the part of
the holder of such share, be cancelled and retired.
Section 5. Termination; amendments.
At any time prior to the filing of a certificate of merger for the Merger
with the Secretary of State of the State of New York, this agreement may be
terminated by the board of directors of either constituent corporation
notwithstanding approval of this Agreement by the stockholders of either or
both of the constituent corporations.
Section 6. Certificate of incorporation
The certificate of incorporation of the surviving corporation shall be amended
and restated to read in its entirety as follows:
FIRST: NAME
The name of the corporation is Salomon Smith Barney Holdings Inc.
SECOND: PURPOSE
The corporation is formed for the purpose of engaging in any lawful
act or activity for which corporations may be organized under the
Business Corporation Law (the BCL). The corporation is not formed to
engage in any act or activity requiring the consent or approval of
any state official, department, board, agency or other body without
such consent or approval first being obtained.
THIRD: OFFICE
The office of the corporation is located in the City of New York,
County of New York.
FOURTH: CAPITAL SHARES
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(a) The corporation shall have the authority to issue 1,000 common
shares, with a par value of one cent ($.01) per share and
10,000,000 preferred shares, with a par value of one dollar ($1.00)
per share.
(b) The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article FOURTH to
provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable law
of the State of New York, to establish from time to time the number
of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions
thereof. The authority of the Board of Directors with respect to
each series shall include, but not be limited to, determination of
the following:
(i) the number of shares constituting that series and the
distinctive designation of that series.
(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of payments of
dividends on shares of that series;
(iii) whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such
voting rights;
(iv) whether that series shall have conversion or exchange
privileges, and, if so, the terms and conditions of such conversion
or exchange, including provision for adjustment of the conversion
or exchange rate in such events as the board of directors shall
determine;
(v) whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including
the manner of selecting shares for redemption if less than all
shares are to be redeemed, the date or dates upon or after which
they shall be redeemable, and the amount per share payable in case
of redemption, which amount may vary under different conditions and
at different redemption dates;
(vi) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
(vii) the right of the shares of that series to the benefit of
conditions and restrictions upon the creation of indebtedness of
the corporation or any subsidiary, upon the issue of any additional
shares (including additional shares of such series or any other
series) and upon the payment of dividends or the making of other
distributions on, and the purchase, redemption or other acquisition
by the corporation or any subsidiary of any outstanding shares of
the corporation;
(viii) the rights of the shares of that series in the event of
voluntary or
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involuntary liquidation, dissolution or winding up of the
corporation, and the relative rights of priority, if any, of
payment of shares of that series;
(ix) any restrictions on transfers of shares of that series; and
(x) any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of that
series.
(c) Shares of any series of preferred shares that have been redeemed
(whether through the operation of a sinking fund or otherwise) or
which, if convertible or exchangeable, have been converted into or
exchanged for shares of stock of any other class or classes, shall
have the status of authorized and unissued shares of preferred
shares of the same series and may be reissued as a part of the
series of which they were originally a part or may be reclassified
and reissued as part of a new series of preferred shares to be
created by resolution or resolutions of the board of directors or
as part of any other series of preferred shares, all subject to
the conditions and the restrictions on issuance set forth in the
resolution or resolutions adopted by the board of directors
providing for the issue of any series of preferred shares.
(d) Dividends on outstanding shares of Preferred Stock shall be paid,
or declared and set apart for payment, before any dividends shall
be paid or declared and set apart for payment on outstanding
shares of Common Stock. If upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
assets available for distribution to holders of shares of
Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled,
then such assets shall be distributed ratably among the shares of
all series of Preferred Stock in accordance with the respective
preferential amounts (including unpaid cumulative dividends, if
any) payable with respect thereto.
(e) Subject to the provisions of any applicable law or except as
otherwise provided by the resolution or resolutions providing for
the issue of any series of Preferred Stock, the holders of
outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for all other
purposes, each holder of record of shares of Common Stock being
entitled to one vote for each share of Common Stock standing in
his name on the books of the Corporation.
(f) Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, after
payment shall have been made to the holders of Preferred Stock of
the full amount of dividends to which they shall be entitled
pursuant to the resolution or resolutions providing for
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the issue of any series of Preferred Stock, the holders of Common
Stock shall be entitled, to the exclusion of the holders of
Preferred Stock of any and all series, to receive such dividends
as from time to time may be declared by the Board of Directors.
(g) Except as otherwise provided by the resolution or resolutions
providing for the issue of any series of Preferred Stock, in the
event of any liquidation, dissolution or winding up of the
Corporation whether voluntary or involuntary, after payment shall
have been made to the holders of Preferred Stock of the full
amount to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all series,
to share ratably according to the number of shares of Common Stock
held by them in all remaining assets of the Corporation available
for distribution.
FIFTH: AGENT FOR SERVICE OF PROCESS
The Secretary of State is designated as agent of the corporation upon
whom process against the corporation may be served. The post office
address of the corporation to which the Secretary of State shall mail
process against the corporation served upon the Secretary of State is
Salomon Smith Barney Inc., 388 Greenwich Street, New York, NY 10013,
attention: General Counsel.
SIXTH: NO PREEMPTIVE RIGHTS
Shareholders shall not be entitled to preemptive rights, directly or
indirectly, in respect of any equity, voting, or other shares of the
corporation.
SEVENTH: MANAGEMENT OF THE BUSINESS
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and shareholders:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of
Directors.
(b) The directors shall have concurrent power with the
shareholders
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to make, alter, amend, change, add to or repeat the
By-Laws of the Corporation.
(c) The number of directors of the Corporation shall be
as from time to time fixed by, or in the manner
provided in, the By-Laws of the Corporation. Election
of directors need not be by written ballot unless the
By-Laws so provide.
(d) A director may be removed, with or without cause, by
a majority vote of the outstanding common shares.
(e) The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be
made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate
is or was a director, officer or employee of the
Corporation or any predecessor of the Corporation or
serves or served any other enterprise as a director,
officer or employee at the request of the Corporation
or any predecessor of the Corporation, provided that
this provision shall not provide for indemnification
to be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to
the director or officer establishes that his acts
were committed in bad faith or were the result of
active and deliberate dishonesty and were material to
the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
(f) In addition to the powers and authority herein or by
statute expressly conferred upon them, the directors
are hereby empowered to exercise all such powers and
do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to
the provisions of the BCL, this Amended and Restated
Certificate of Incorporation, and any By-Laws adopted
by the shareholders; provided, however, that no
By-Laws hereafter adopted by the shareholders shall
invalidate any prior act of the directors which would
have been valid if such By-Laws had not been adopted.
EIGHTH: AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute,
and al rights conferred upon shareholders herein are granted subject
to this reservation.
NINTH: LIMITATION OF LIABILITY OF DIRECTORS
To the fullest extent permitted under section 402 of the BCL, no
director of the corporation shall be personally liable to the
corporation or its shareholders for damages for any breach of duty in
such capacity, provided that this provision
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shall not limit
(a) the liability of any director if a judgment or other
final adjudication adverse to him or her establishes
that his or her acts or omissions were in bad faith
or involved intentional misconduct or a knowing
violation of law or that he or she personally gained
in fact a financial profit or other advantage to
which he or she was not legally entitled or that his
or her acts violated section 719 of the BCL, or
(b) the liability of any director for any act or omission
prior to adoption of a provision authorized by this
paragraph.
IN WITNESS WHEREOF, the undersigned have duly executed this Merger Agreement as
of the 30th day of June, 1999.
SALOMON SMITH BARNEY HOLDINGS INC.
By: /s/ MICHAEL A. CARPENTER
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Name: Michael A. Carpenter
Title Chairman and Chief Executive Officer
SSBHI MERGER COMPANY INC.
By: /s/ MICHAEL A. CARPENTER
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Name: Michael A. Carpenter
Title Chairman and Chief Executive Officer