Exhibit 2.01
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
FRIEDMAN, BILLINGS, XXXXXX GROUP, INC.
A DELAWARE CORPORATION,
FRIEDMAN, BILLINGS, XXXXXX GROUP, INC.
A VIRGINIA CORPORATION
AND
FBR GROUP, INC.
A VIRGINIA CORPORATION
Dated as of December 15, 1997
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December
15, 1997, by and among Friedman, Billings, Xxxxxx Group, Inc., a Delaware
corporation ("Old Delaware Group"), Friedman, Billings, Xxxxxx Group, Inc., a
Virginia Corporation ("Old Virginia Group") and FBR Group, Inc., a Virginia
corporation ("Surviving Corporation").
WHEREAS, Old Delaware Group is the sole shareholder of Old Virginia
Group and the Surviving Corporation.
WHEREAS, Old Delaware Group has only one class of capital stock
authorized, issued and outstanding, namely voting common stock, par value $0.01
per share.
WHEREAS, the Board of Directors of each of Old Delaware Group, Old
Virginia Group and Surviving Corporation has determined that it is in the best
interests of Old Delaware Group, Old Virginia Group and Surviving Corporation,
respectively, to consummate the business combination transaction provided for
herein in which Old Delaware Group and Old Virginia Group will, subject to the
terms and conditions set forth herein, merge with and into Surviving Corporation
(the "Merger"), so that Surviving Corporation is the surviving corporation in
the Merger; and
WHEREAS, the parties desire to make agreements in connection with the
Merger and also to prescribe certain conditions to the Merger;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and intending to be legally bound hereby, the parties agree as
follows:
1.1 The Merger. Subject to the terms and conditions of this
Agreement, in accordance with the Delaware General Corporation Law (the "DGCL")
and the Virginia Stock Corporation Act (the "VSCA"), at the Effective Time (as
defined in Section 1.2 hereof), Old Delaware Group and Old Virginia Group shall
merge with and into Surviving Corporation. Surviving Corporation shall be the
surviving corporation in the Merger, and shall continue its corporation
existence under the laws of the Commonwealth of Virginia. Upon consummation of
the Merger, the separate existence of Old Delaware Group and Old Virginia Group
shall terminate.
1.2 Effective Time. Subject to the provisions of this Agreement, as soon
as practicable following the date hereof, (i) the Surviving Corporation shall
file a certificate of merger with the Delaware Secretary of State executed in
accordance with the relevant provisions of the DGCL and (ii) the Surviving
Corporation shall file articles of merger with the Virginia State Corporation
Commission executed in accordance with the relevant provisions of the VSCA. The
parties shall make any other filings or recordings required under the DGCL or
the VSCA. The Merger shall become effective at such time (i) as the certificate
of merger is duly filed with the Delaware Secretary of State, the articles of
merger are duly filed with the Virginia State Corporation Commission, and the
Virginia State Corporation Commission shall issue a certificate of merger with
respect to the Merger in accordance with the VSCA or (ii) such other time as the
parties shall agree and the Surviving Corporation shall specify in the
certificate of merger duly filed with the Delaware Secretary of State and the
articles of merger duly filed with the Virginia State Corporation Commission
(the time the Merger becomes effective being hereinafter referred to as the
"Effective Time").
1.3 Effects of the Merger. At and after the Effective Time, the Merger
shall have the effects set forth in the DGCL and in the VSCA. The directors and
officers of Surviving Corporation immediately before the Effective Time shall be
the directors and officers of the Surviving Corporation following the Merger,
each to hold office in accordance with the Articles of Incorporation and Bylaws
of the Surviving Corporation.
1.4 Manner and Basis of Converting Shares. At the Effective Time, by
virtue of the Merger and without any action on the part of Surviving
Corporation, Old Delaware Group, Old Virginia Group or the holder of any of the
following securities:
(a) Each share of voting common stock, par value $0.01 per share, of
Old Delaware Group ("Old Shares") outstanding immediately prior to the Effective
Time shall be converted into three hundred thirty (330) shares of Class B common
stock, par value $0.01 per share, of the Surviving Corporation.
(b) Each share of common stock, par value $0.01 per share, of Old
Virginia Group issued and outstanding immediately prior to the Effective Time
shall be cancelled.
(c) Each share of Class B common stock, par value $0.01 per share, of
Surviving Corporation issued and outstanding immediately prior to the Effective
Time shall be cancelled.
(d) All dividends declared by Old Delaware Group before the Effective
Time, payable to shareholders of Old Delaware Group of record as of a record
date before the Effective Time, and unpaid as of the Effective Time, shall
constitute debts of the Surviving Corporation payable to such shareholders of
Old Delaware Group as of such record date in accordance with the terms of the
relevant dividend declarations of Old Delaware Group.
2
1.5 Amendment of Articles of Incorporation of the Surviving Corporation.
At the Effective Time, Section 1.1 of Article 1 of the Articles of Incorporation
of the Surviving Corporation shall be amended in its entirety to read as
follows:
1.1 Name. The name of the corporation is Friedman, Billings,
Xxxxxx Group, Inc. (the "Corporation").
1.6 Articles of Incorporation of Surviving Corporation. At the Effective
Time, the Articles of Incorporation of the Surviving Corporation in effect as of
the Effective Time, as amended as set forth in Section 1.5 above, shall be the
Articles of Incorporation of the Surviving Corporation until thereafter changed
or amended as provided therein or under applicable law.
1.7 Conditions to the Merger. Consummation of the Merger is conditioned
upon the following: (i) approval of this Agreement by the shareholders of each
of the Surviving Corporation. Old Delaware Group and Old Virginia Group and (ii)
satisfaction of any and all other requirements of applicable law.
1.8 Abandonment or Termination. This Agreement may be abandoned or
terminated at any time before the Effective Time (including, without limitation,
before or after approval of this Agreement by the shareholders of any of the
parties to this Agreement) by the mutual consent of the parties hereto in a
written instrument, if the Board of Directors of each so determines by a vote of
a majority of all of its members.
1.9 Effect of Abandonment or Termination. In the event of abandonment or
termination of this Agreement as provided in Section 1.8, this Agreement shall
forthwith become void and have no effect, and no party hereto nor any of their
respective officers or directors shall have any liability of any nature
whatsoever hereunder, or in connection with the transactions contemplated
hereby.
1.10 Severability: No Third Party Beneficiaries. Any term or provision of
this Agreement that is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable. This
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
1.11 Consent to Service of Process. The Surviving Corporation may be
served with process in the State of Delaware in any proceeding for enforcement
of any obligation of Old Delaware Group, as well as for enforcement of any
obligation of the Surviving Corporation arising from the Merger, including any
suit or other proceeding to enforce the right of any stockholder as determined
in appraisal proceedings pursuant to the provisions of Section 262 of the DGCL
and it does hereby irrevocably appoint the Secretary of State of Delaware as its
agent to accept service of
3
process in any such suit or proceeding. The address to which a copy of such
process shall be mailed by the Secretary of State is Potomac Tower, 0000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000.
(The remainder of this page is intentionally left blank)
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
FRIEDMAN, BILLINGS, XXXXXX GROUP,
INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice Chairman & COO
FRIEDMAN, BILLINGS, XXXXXX GROUP,
INC., a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
FBR GROUP, INC., a Virginia corporation
By: /s/ W. Xxxxxxx Xxxxxx
----------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: President
5
