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Title: |
Agreement and Plan of Merger |
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Entities: |
UBS Securities LLC; Mellon Financial Corp.; Reed Smith; Simpson Thacher & Bartlett |
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Date: |
2006 |
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Size: |
Preview shows 42KB of 210KB total |
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Price: |
$88 |
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ID: |
#2658059 |
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AGREEMENT AND PLAN OF MERGER
BETWEEN
MELLON FINANCIAL CORPORATION
AND
THE BANK OF NEW YORK COMPANY, INC.
DATED
DECEMBER 3, 2006
Table of Contents
| Page | ||||
| ARTICLE 1 | ||||
| TERMS OF FIRST STEP MERGER | ||||
| 1.1. | First Step Merger | 2 | ||
| 1.2. | First Effective Time | 2 | ||
| 1.3. | Conversion of BNY Common Stock | 2 | ||
| 1.4. | Cancellation of Newco Common Stock | 3 | ||
| 1.5. | Cancellation of Shares Held by BNY | 3 | ||
| 1.6. | BNY Stock Options and Other Equity-Based Awards | 3 | ||
| 1.7. | Organization of Newco | 5 | ||
| ARTICLE 2 | ||||
| TERMS OF SECOND STEP MERGER | ||||
| 2.1. | Second Step Merger | 6 | ||
| 2.2. | Time and Place of Closing | 6 | ||
| 2.3. | Effective Time | 6 | ||
| 2.4. | Conversion of Mellon Common Stock | 7 | ||
| 2.5. | Effects on Common Stock | 7 | ||
| 2.6. | Mellon Stock Options and Other Equity-Based Awards | 8 | ||
| ARTICLE 3 | ||||
| EXCHANGE OF SHARES | ||||
| 3.1. | Exchange Procedures | 10 | ||
| 3.2. | Rights of Holders | 11 | ||
| ARTICLE 4 | ||||
| REPRESENTATIONS AND WARRANTIES | ||||
| 4.1. | Disclosure Letters | 12 | ||
| 4.2. | Standards | 13 | ||
| 4.3. | Representations and Warranties of the Parties | 13 | ||
| ARTICLE 5 | ||||
| COVENANTS AND ADDITIONAL AGREEMENTS | ||||
| 5.1. | Conduct of Business Prior to Effective Time | 29 | ||
| 5.2. | Forbearances | 29 | ||
| 5.3. | Dividends | 32 | ||
A-i
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5.4. |
Redemption of BNY Series A Preferred Stock | 32 | ||
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5.5. |
Reasonable Best Efforts | 33 | ||
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5.6. |
Shareholders Approvals | 33 | ||
|
5.7. |
Registration Statement; Joint Proxy Statement/Prospectus | 34 | ||
|
5.8. |
Listing of Newco Common Stock | 34 | ||
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5.9. |
Applications and Consents; Governmental Filings | 34 | ||
|
5.10. |
Notification of Certain Matters | 35 | ||
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5.11. |
Investigation and Confidentiality | 35 | ||
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5.12. |
Press Releases; Public Announcements | 36 | ||
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5.13. |
Acquisition Proposals | 36 | ||
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5.14. |
Takeover Laws; No Rights Triggered | 38 | ||
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5.15. |
Exemption from Liability Under Section 16(b) | 38 | ||
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5.16. |
Agreement of Affiliates | 38 | ||
|
5.17. |
Employee Matters | 39 | ||
|
5.18. |
Indemnification | 41 | ||
|
5.19. |
Corporate Governance | 42 | ||
|
5.20. |
Commitments to the Community | 43 | ||
|
5.21. |
Change of Method | 44 | ||
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5.22. |
Restructuring Efforts | 45 | ||
| ARTICLE 6 | ||||
| CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE | ||||
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6.1. |
Conditions to Obligations of Each Party | 45 | ||
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6.2. |
Conditions to Obligations of BNY | 46 | ||
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6.3. |
Conditions to Obligations of Mellon | 46 | ||
| ARTICLE 7 | ||||
| TERMINATION | ||||
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7.1. |
Termination | 47 | ||
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7.2. |
Effect of Termination | 48 | ||
| ARTICLE 8 | ||||
| MISCELLANEOUS | ||||
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8.1. |
Definitions | 49 | ||
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8.2. |
Non-Survival of Representations and Covenants | 59 | ||
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8.3. |
Expenses | 59 | ||
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8.4. |
Entire Agreement | 59 | ||
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8.5. |
Amendments | 59 | ||
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8.6. |
Waivers | 60 | ||
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8.7. |
Assignment | 60 | ||
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8.8. |
Notices | 60 | ||
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8.9. |
Governing Law | 61 | ||
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8.10. |
Counterparts | 61 | ||
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8.11. |
Captions | 61 | ||
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8.12. |
Interpretations | 61 | ||
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8.13. |
Severability | 61 | ||
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8.14. |
Waiver of Jury Trial | 61 | ||
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8.15. |
Submission to Jurisdiction | 62 | ||
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8.16. |
Specific Performance | 62 | ||
A-ii
LIST OF EXHIBITS*
| EXHIBIT |
DESCRIPTION | |
| 1-A |
Form of Mellon Stock Option Agreement | |
| 1-B |
Form of BNY Stock Option Agreement | |
| 2 |
Newco By-law Provisions (Section 1.7) | |
| 3-A |
Form of Mellon Affiliate Letter (Section 5.16) | |
| 3-B |
Form of BNY Affiliate Letter (Section 5.16) | |
| 4 |
Newco Officers (Section 5.19(c)) | |
| * | The exhibits and schedules to this agreement have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. The Registrant will furnish copies of any of the exhibits and schedules to the U.S. Securities and Exchange Commission upon request. |
A-iii
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this Agreement), dated December 3, 2006, is between MELLON FINANCIAL CORPORATION, a Pennsylvania corporation (Mellon), and THE BANK OF NEW YORK COMPANY, INC., a New York corporation (BNY).
RECITALS
A. Approvals. The Boards of Directors of Mellon and BNY have determined that the transactions described herein are consistent with, and will further, their respective business strategies and goals, and are in the best interests of Mellon and BNY, respectively, and their respective shareholders.
B. The Merger. This Agreement provides for a strategic business combination through the merger of BNY with and into a newly-formed Subsidiary of BNY and Mellon to be named The Bank of New York Mellon Corporation and organized under Delaware law (Newco) with Newco as the surviving corporation, followed immediately thereafter by the merger of Mellon with and into Newco with Newco as the surviving corporation.
C. Intention of the Parties. It is the intention of the Parties that (i) the First Step Merger shall qualify for all tax purposes as a reincorporation of BNY in Delaware and for federal income Tax purposes as a reorganization within the meaning of Section 368(a)(1)(A) and 368(a)(1)(F) of the Internal Revenue Code, (ii) the Second Step Merger shall qualify for federal income Tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code and (iii) this Agreement shall constitute a plan of reorganization for purposes of Sections 354 and 361 of the Internal Revenue Code.
D. Reciprocal Stock Options. Concurrently with the execution and delivery of this Agreement, (i) as a condition and inducement to BNYs willingness to enter into this Agreement and the BNY Stock Option Agreement referred to below, BNY and Mellon are entering into a Stock Option Agreement, dated as of the date hereof, in the form of Exhibit 1-A (the Mellon Stock Option Agreement) pursuant to which Mellon is granting to BNY an option to purchase shares of Mellon Common Stock and (ii) as a condition and inducement to Mellons willingness to enter into this Agreement and the Mellon Stock Option Agreement referred to below, BNY and Mellon are entering into a Stock Option Agreement, dated as of the date hereof, in the form of Exhibit 1-B (the BNY Stock Option Agreement) pursuant to which BNY is granting to Mellon an option to purchase shares of BNY Common Stock.
E. Defined Terms. Certain capitalized terms used in this Agreement are defined in Section 8.1 of this Agreement. All references in this Agreement to the transactions contemplated hereby shall include the execution, delivery and performance of the Stock Option Agreements.
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