EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 9th day of
October, 1997, by and between River Asset Sub, Inc., a Delaware corporation
("River Asset Sub"), and River Distribution Sub, Inc., a Delaware corporation
("River Distribution Sub").
Preliminary Statement
River Asset Sub and River Distribution Sub are wholly-owned
subsidiaries of River Bank.
River Bank proposes to engage with River Distribution Sub and
River Asset Sub in a series of transactions (collectively, the "Reorganization")
whereby, among other things:
(i) first, River Bank will file a petition for a closing order in
accordance with section 605(4) of the Banking Law, and will
send a notice to its creditors of the proposed closing and
dissolution of River Bank;
(ii) second, after the issuance of the closing order, the existing
business and all of the assets and liabilities of River Bank
will be transferred to or assumed by River Asset Sub (the
"Business Disposition");
(iii) third, River Bank will file a petition for an order of
dissolution pursuant to section 605(6) of the Banking Law;
(iv) fourth, all of the issued and outstanding shares of River
Distribution Sub Common Stock and shares of River Distribution
Sub Series A Preferred Stock will be distributed by River Bank
to its stockholders (the "Distribution") such that each holder
of River Bank common stock, par value $1.00 per share, will
receive one share of River Distribution Sub Common Stock for
each share of River Bank common stock and each holder of River
Bank 15% noncumulative perpetual preferred stock, series A,
par value $1.00 per share, will receive one share of River
Distribution Sub Series A Preferred Stock for each share of
River Bank series A preferred stock;
(v) fifth, immediately following the Distribution, but during the
pendency of the petition for dissolution, River Distribution
Sub will merge with and into River Asset Sub (which shall have
succeeded to substantially all of the business, assets and
liabilities of River Bank) with River Asset Sub as the
surviving corporation of the merger, whereupon each share of
River Asset Sub Common Stock shall be canceled and each share
of River
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Distribution Sub Common Stock and River Distribution Sub
Series A Preferred Stock shall be converted into and will
represent one share of identical capital stock of the
surviving corporation (except that the par value of the
capital stock will be changed to $1.00) and shall remain
outstanding (the "Merger"); and
(vi) immediately following the Merger, River Bank will dissolve.
Following the Reorganization, the surviving corporation will own substantially
all of the assets formerly owned by River Bank, will have assumed all of River
Bank's liabilities and will continue River Bank's business.
River Distribution Sub and River Asset Sub wish to enter into this
Agreement and Plan of Merger for the purpose of effectuating the Merger.
Accordingly, the parties hereto agree as follows:
Article I
Definitions
"Agreement and Plan of Merger" means this Agreement and Plan
of Merger, as the same may be amended or modified from time to time.
"Banking Law" means the Banking Law of the State of New York.
"Business Disposition" has the meaning set forth in the second
paragraph of the preliminary statement.
"Certificate of Merger" means the certificate of merger,
substantially in the form of Exhibit A attached hereto.
"Delaware GCL" means the General Corporation Law of the State
of Delaware, as amended.
"Distribution" has the meaning set forth in the second
paragraph of the preliminary statement.
"FDIC" means the Federal Deposit Insurance Corporation.
"Merger" has the meaning set forth in the second paragraph of
the preliminary statement.
"Merger Closing" has the meaning set forth in section 2.4.
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"Merger Closing Date" has the meaning set forth in section
2.4.
"RB Asset" means the surviving corporation of the Merger under
the laws of the State of Delaware.
"RB Asset Common Stock" means the shares of common stock, par
value $1.00 per share, of RB Asset.
"RB Asset Series A Preferred Stock" means the shares of 15%
noncumulative perpetual preferred stock, series A, par value $1.00 per share, of
RB Asset.
"NYSBD" means the New York State Banking Department.
"Reorganization" has the meaning set forth in the second
paragraph of the preliminary statement.
"River Asset Sub" means River Asset Sub, Inc., a Delaware
corporation.
"River Asset Sub Common Stock" means the shares of common
stock, par value $1.00 per share, of River Asset Sub.
"River Bank" means River Bank America, a New York chartered
savings bank.
"River Distribution Sub" means River Distribution Sub, Inc., a
Delaware corporation.
"River Distribution Sub Common Stock" means the shares of
common stock, $.001 par value per share, of River Distribution Sub.
"River Distribution Sub Series A Preferred Stock" means the
shares of 15% noncumulative perpetual preferred stock, series A, $.001 par value
per share, of River Distribution Sub.
"Surviving Corporation" means the surviving corporation in the
Merger as set forth in section 2.1(b).
Article II
Merger of River Asset Sub and River Distribution Sub
Section 2.1. The Merger.
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(a) Subject to the terms and conditions of this Agreement and
Plan of Merger, at the time of the Merger Closing, the Certificate of Merger
shall be duly executed and acknowledged by River Distribution Sub and River
Asset Sub in accordance with section 251 of the Delaware GCL, and shall be filed
with the Secretary of State of the State of Delaware on the Merger Closing Date.
The Merger shall become effective upon the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware or at the time specified in
the Certificate of Merger in accordance with section 251 of the Delaware GCL
(the "Effective Time").
(b) At the Effective Time, River Distribution Sub shall be
merged with and into River Asset Sub and the separate corporate existence of
River Distribution Sub shall cease, and River Asset Sub shall continue as the
surviving corporation (the "Surviving Corporation") under the laws of the State
of Delaware.
(c) From and after the Effective Time, the Merger shall have
the effects set forth in section 259 of the Delaware GCL, including, without
limitation, the effect that all liabilities of River Distribution Sub and River
Asset Sub shall thenceforth attach to and be enforceable against the Surviving
Corporation as if said liabilities had been incurred or contracted by it.
Section 2.2. Effect on Capital Stock. As of the Effective
Time, by virtue of the Merger and without any action on the part of River
Distribution Sub or River Asset Sub or any holder of shares of any capital stock
thereof:
(a) Capital Stock of River Distribution Sub. Each issued and
outstanding share of River Distribution Sub Common Stock shall canceled and
extinguished and converted automatically into the right to receive one fully
paid and non-assessable share of common stock, $1.00 par value, of the Surviving
Corporation ("Surviving Corporation Common Stock"). Each issued and outstanding
share of River Distribution Sub Series A Preferred Stock shall be canceled and
extinguished and converted automatically into the right to receive one fully
paid and non-assessable share of 15% noncumulative perpetual preferred stock,
series A, $1.00 par value, of the Surviving Corporation ("Surviving Corporation
Preferred Stock").
(b) Cancellation of River Bank Owned Stock. All shares of
River Asset Sub Common Stock outstanding prior to the Effective Time shall be
canceled and retired and cease to exist and no cash or other consideration shall
be delivered in exchange therefor.
(c) Issuance of Surviving Corporation Capital Stock
Certificates. As soon as practicable after the Effective Time, the Surviving
Corporation shall cause its transfer agent to mail to each record holder of
River Distribution Sub Common Stock and River Distribution Sub Series A
Preferred Stock outstanding immediately prior to the Effective Time certificates
registered in such holder's name evidencing the shares of Surviving
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Corporation Common Stock or Surviving Corporation Series A Preferred Stock, as
the case may be, into which the River Distribution capital stock was converted.
At the Effective Time the stock transfer ledger of River Distribution Sub shall
be closed and each share of River Distribution Sub capital stock outstanding
will be deemed for all corporate purposes to represent the share of Surviving
Corporation capital stock into which it was converted.
Section 2.3. Other Effects of Merger.
(a) Name of Surviving Corporation. The name of the Surviving
Corporation upon and after the Effective Time shall be "RB Asset, Inc."
(b) Certificate of Incorporation of Surviving Corporation. The
certificate of incorporation of River Distribution Sub, as in effect immediately
prior to the Effective Time, shall be amended to change the name of Surviving
Corporation from "River Distribution Sub, Inc." to "RB Asset, Inc." and to
change the par value of the Surviving Corporation capital stock from $.001 par
value per share to $1.00 par value per share, and, as so amended, shall be the
certificate of incorporation of Surviving Corporation until thereafter changed
or amended as provided therein or by law.
(c) Directors and Officers of Surviving Corporation. The
directors of River Distribution Sub immediately prior to the Effective Time
shall be the directors of Surviving Corporation, and the officers of River
Distribution Sub immediately prior to the Effective Time shall be the officers
of Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the certificate of incorporation and
bylaws of Surviving Corporation, until their respective successors shall be duly
elected or appointed and qualified.
(d) Bylaws of Surviving Corporation. The bylaws of River
Distribution Sub, as in effect immediately prior to the Effective Time, shall be
the bylaws of Surviving Corporation until thereafter changed or amended as
provided therein or by law.
Section 2.4. Closing of the Merger. The closing of the Merger
(the "Merger Closing") shall take place at the offices of Battle Xxxxxx LLP, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as soon as practicable after the
last of the conditions set forth in section 2.6 hereof has been fulfilled or
waived (subject to applicable law) but in no event later than the fifth business
day thereafter, or at such other time and place and on such other date as River
Bank shall specify (the "Merger Closing Date").
Section 2.5. River Bank Approval. Notwithstanding anything to
the contrary herein, at any time prior to the time that the Certificate of
Merger is filed with the Secretary of State of the State of Delaware as provided
in section 2.1, the Merger may be terminated by the board of directors of River
Bank notwithstanding the prior
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approval of this Agreement and Plan of Merger by the board of directors or
stockholders of River Distribution Sub and River Asset Sub.
Section 2.6. Conditions to Closing. The obligations of River
Distribution Sub and River Asset Sub to effect the Merger are subject to the
satisfaction or waiver (subject to applicable law) at or prior to the Merger
Closing Date of each of the following conditions:
(a) Consummation of Business Disposition and Distribution. The
Business Disposition and Distribution shall have occurred.
(b) Petition for Dissolution. River Bank shall have filed a
petition for dissolution in accordance with section 605(6) of the Banking Law.
(c) Approval of Board of Directors of River Distribution Sub
and River Asset Sub. The Merger shall have been approved and adopted by the
requisite vote or consent of the board of directors of each of River Asset Sub
and River Distribution Sub.
(d) Approval of Stockholders. The Merger shall have been
approved by the requisite vote or consent of the stockholders of River
Distribution Sub and River Asset Sub.
(e) Governmental Approvals. All required governmental
approvals, including any required approvals from the NYSBD and the FDIC, to the
Merger shall have been obtained.
Article III
Miscellaneous
Section 3.1. Further Assurances. From time to time, each of
the parties hereto shall, if requested by any other party hereto, make, execute
and deliver to such requesting party any such additional instruments, documents,
certificates and agreements as may be reasonably necessary or appropriate to
consummate the transactions contemplated hereby.
Section 3.2. Entire Agreement. This Agreement and Plan of
Merger and the exhibits and other documents referred to herein or delivered
pursuant hereto, collectively contain the entire understanding of the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings, oral and written, with respect thereto.
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Section 3.3. Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified and supplemented in writing by the
parties hereto in any and all respects before the Effective Time
(notwithstanding any stockholder approval), by action taken by their respective
boards of directors or by the respective officers authorized by such boards of
directors, at any time before or after the approval of this Agreement and Plan
of Merger by the stockholders of River Distribution Sub and River Asset Sub, but
after any such stockholder approval, no amendment shall be made which decreases
or changes the form of consideration to be paid to stockholders of River
Distribution Sub in the Distribution or the Merger or which has a material
adverse affect on the rights of River Distribution Sub's stockholders or by law
requires further approval by such stockholders, without further approval of
River Distribution Sub's stockholders.
Section 3.4. Headings. The descriptive headings of the several
articles and sections of this Agreement and Plan of Merger are inserted for
convenience only, do not constitute a part of this Agreement and Plan of Merger
and shall not affect in any way the meaning or interpretation of this Agreement
and Plan of Merger.
Section 3.5. Counterparts. This Agreement and Plan of Merger
may be executed in several counterparts, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one and the same
instrument.
Section 3.6. Governing Law. This Agreement and Plan of Merger
and the legal relations between the parties hereto shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
[End of Text]
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IN WITNESS WHEREOF, each of River Distribution Sub and River
Asset Sub has caused this Agreement and Plan of Merger to be executed by its
respective officers thereunto duly authorized, all as of the date first above
written.
River Distribution Sub, Inc.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------
Name: Xxxxxx X. XxXxxxxx
Title: Chairman, Pres. & CEO
River Asset Sub, Inc.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------
Name: Xxxxxx X. XxXxxxxx
Title: Chairman, Pres. & CEO
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ACKNOWLEDGMENT
I, Xxxxx Xxxxxxxx Duke, Secretary of River Asset Sub, Inc., a
corporation organized and existing under the laws of the State of Delaware, and
Secretary of River Distribution Sub, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certify, as such Secretary, that
the Agreement and Plan of Merger to which this certificate is attached, after
having been first duly signed on behalf of the said corporations, was duly
adopted pursuant to section 228 of the Delaware General Corporation Law by the
unanimous written consent of the stockholders holding all of the outstanding
shares of capital stock of each corporation which Agreement and Plan of Merger
was thereby adopted as the act of the stockholders of such corporations, and the
duly adopted agreement and act of the said corporations.
WITNESS my hand on this 19th day of October, 1997.
/s/ Xxxxx Xxxxxxxx Xxxx
------------------------------
Xxxxx Xxxxxxxx Duke, Secretary
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EXHIBIT A
CERTIFICATE OF MERGER
OF
RIVER ASSET SUB, INC.
AND
RIVER DISTRIBUTION SUB, INC.
It is hereby certified that:
1. The constituent business corporations participating in the
merger herein certified are:
(i) River Asset Sub, Inc., which is incorporated in the State
of Delaware ("River Asset Sub"); and
(ii) River Distribution Sub, Inc., which is incorporated in
the State of Delaware ("River Distribution Sub").
2. An agreement and plan of merger has been approved, adopted,
certified, executed and acknowledged by each of the aforesaid constituent
corporations in accordance with the provisions of subsection (c) of Section 251
of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein
certified is River Asset Sub, which will continue its existence as said
surviving corporation under the name "RB Asset, Inc." upon the effective date of
said merger pursuant to the provisions of the General Corporation Law of the
State of Delaware.
4. The Amended and Restated Certificate of Incorporation of
River Distribution Sub, as now in force and effect, is to be further amended and
changed by reason of the merger herein certified by striking out Article FIRST
thereof, relating to the name of such corporation, and by substituting in lieu
thereof the following article:
"FIRST: the name of the corporation is RB Asset, Inc.
(hereinafter called the "Corporation").";
and by striking out Article FOURTH thereof, relating to the par value of the
capital stock of such corporation, and by substituting in lieu thereof the
following article:
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"FOURTH: A. The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is forty
million (40,000,000) shares, of which ten million (10,000,000) shares shall be
preferred stock, par value $1.00 per share (the "Preferred Stock"), and thirty
million (30,000,000) shares shall be common stock, par value $1.00 per share
(the "Common Stock"). The Preferred Stock and the Common Stock are sometimes
hereinafter collectively referred to as "Capital Stock."";
and said Amended and Restated Certificate of Incorporation, including, without
limitation, the Certificate of Designation, Preferences and Rights of the 15%
Noncumulative Perpetual Preferred Stock, Series A, as so amended and changed
shall be the Certificate of Incorporation of said surviving corporation until
further amended and changed pursuant to the provisions of the General
Corporation Law of the State of Delaware.
5. The executed agreement and plan of merger between the
constituent corporations is on file at an office of the aforesaid surviving
corporation, the address of which is as follows:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
6. A copy of the aforesaid agreement and plan of merger will
be furnished by the aforesaid surviving corporation, on request, and without
cost, to any stockholder of each of the aforesaid constituent corporations.
7. The agreement and plan of merger between the aforesaid
constituent corporations provides that the merger herein certified shall be
effective upon the filing of this certificate.
Dated: October __, 1997
RIVER ASSET SUB, INC.
By:_____________________________
Its President
Dated: October __, 1997
RIVER DISTRIBUTION SUB, INC.
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By:_____________________________
Its President
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