|
|
|
|
Document Preview Agreement and Plan of Merger |
||||
|
|
||||
|
Click "Add to Cart" button to purchase document. |
||||
|
|
||||
|
Title: |
Agreement and Plan of Merger |
|||
|
Entities: |
Goldman Sachs Group Inc.; Goldman, Sachs & Co.; Paul, Weiss, Rifkind, Wharton & Garrison; Sullivan & Cromwell; SLK LLC |
|||
|
Date: |
2000 |
|||
|
Size: |
Preview shows 22KB of 273KB total |
|||
|
Price: |
$75 |
|||
|
ID: |
#314870 |
|||
|
|
||||
|
||||
|
|
||||
|
Start of Preview |
||||
AGREEMENT AND PLAN OF MERGER
dated as of September 10, 2000
by and between
The Goldman Sachs Group, Inc.
and
SLK LLC
================================================================================
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
RECITALS.................................................................................................. 1
ARTICLE I
Certain Definitions; Interpretation
1.01 Certain Definitions..................................................................................2
1.02 General Rules of Interpretation......................................................................9
ARTICLE II
The Merger
2.01 The Merger...........................................................................................9
2.02 Closing.............................................................................................10
2.03 Tax Treatment of the Merger.........................................................................10
2.04 Organization of NewCo...............................................................................10
ARTICLE III
Consideration; Exchange; Employee Incentives
3.01 Merger Consideration................................................................................10
3.02 Exchange Procedures.................................................................................11
3.03 Withdrawn Member and Managing Director Subordinated Debt Election...................................12
3.04 Election Procedures.................................................................................13
3.05 Restricted Stock Units Awards.......................................................................13
3.06 Incremental Liquidity Gain..........................................................................14
3.07 Adjustments to Prevent Dilution.....................................................................14
ARTICLE IV
Actions Pending the Effective Time
4.01 Forbearances of the Company.........................................................................15
4.02 Forbearances of Acquiror............................................................................18
{/TABLE}
-i-
{PAGE} 3
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
ARTICLE V
Representations and Warranties
5.01 Disclosure Schedules................................................................................18
5.02 Standard............................................................................................18
5.03 Representations and Warranties with Respect to the Company..........................................19
5.04 Representations and Warranties with Respect to the Partnership......................................34
5.05 Representations and Warranties of Acquiror..........................................................34
5.06 Representations Regarding NewCo.....................................................................37
ARTICLE VI
Covenants
6.01 Reasonable Best Efforts.............................................................................37
6.02 Access; Information.................................................................................38
6.03 No Rights Triggered.................................................................................38
6.04 Regulatory Applications.............................................................................38
6.05 Regulatory Compliance...............................................................................39
6.06 Performance Ranking.................................................................................39
6.07 Notification of Certain Matters.....................................................................39
6.08 Public Announcements................................................................................40
6.09 Fee Agreements......................................................................................40
6.10 Private Placement...................................................................................40
6.11 Employee Benefits...................................................................................41
6.12 Indemnification of Members and Employees............................................................41
ARTICLE VII
TAX MATTERS
7.01 Tax Representations.................................................................................41
7.02 Covenants...........................................................................................43
7.03 Termination of Tax Sharing Agreements...............................................................45
7.04 Seller Tax Indemnification..........................................................................45
7.05 Exclusivity.........................................................................................47
{/TABLE}
-ii-
{PAGE} 4
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
7.06 Survival of Obligations.............................................................................47
7.07 Agreed Tax Treatment................................................................................47
ARTICLE VIII
Conditions to Consummation of the Merger
8.01 Conditions to Each Party's Obligation to Effect the Merger..........................................47
8.02 Conditions to Obligations of the Company............................................................48
8.03 Conditions to Obligations of Acquiror and NewCo.....................................................48
ARTICLE IX
Indemnification
9.01 Indemnification.....................................................................................50
9.02 Notice and Defense of Claims........................................................................52
9.03 Survival of Representations and Warranties..........................................................53
ARTICLE X
Termination
10.01 Termination.........................................................................................53
10.02 Effect of Termination and Abandonment...............................................................54
ARTICLE XI
Miscellaneous
11.01 Entire Understanding; No Third-Party Beneficiaries..................................................55
11.02 Waiver; Amendment...................................................................................55
11.03 Expenses............................................................................................55
11.04 Notices.............................................................................................55
11.05 Additional Provisions...............................................................................56
11.06 Counterparts........................................................................................56
11.07 Governing Law; Enforcement; Waiver of Jury Trial....................................................57
{/TABLE}
-iii-
{PAGE} 5
Annex 1 Members
Annex 2 Partners
Annex 3 Form of Member Agreement
Annex 4 Form of Custody Agreement
Annex 5 Intentionally Omitted
Annex 6 Retention RSUs
Annex 7 SLK RSUs
Annex 8 Acquiror Subordinated Note
Note: Certain of these annexes have been omitted from this Exhibit 2.1 pursuant
to Item 601(b)(2) of Regulation S-K. The Registrant hereby agrees to furnish
supplementally a copy of any omitted annex to the SEC upon request.
-iv-
{PAGE} 6
AGREEMENT AND PLAN OF MERGER, dated as of September 10, 2000,
by and between The Goldman Sachs Group, Inc. ("Acquiror") and SLK LLC (the
"Company").
RECITALS
A. The Company. The Company is a New York limited
liability company having its principal place of business in New York, New York.
Annex 1 lists the names and profit and loss allocations of all the members of
the Company (each, a "Member", and collectively, the "Members").
B. The Partnership. Spear, Leeds & Kellogg, L.P. (the
"Partnership") is a New York limited partnership having its principal place of
business in New York, New York. The Company is the sole general partner of the
Partnership. Annex 2 lists the names and profit and loss allocations of all
partners of the Partnership (each, a "Partner" and collectively, the
"Partners").
C . Acquiror. Acquiror is a Delaware corporation, having
its principal place of business in New York, New York.
D. The Merger. Subject to the terms and conditions
contained in this Agreement, the Company and Acquiror intend to effect the
merger (the "Merger") of a direct or indirect wholly owned subsidiary of
Acquiror that will be organized as a New York limited liability company
("NewCo") with and into the Company, with the Company being the limited
liability company surviving such merger.
E. Supplemental Agreements. Each of the Members
identified as such in Annex 1 will, prior to Closing, enter into an instrument
substantially in the appropriate form of Annex 3, in which each Member will have
adopted and consented to this Agreement and the transactions contemplated hereby
(each, a "Member Agreement") and to the Supplemental Members Agreement which is
attached as an Annex to the Member Agreement (the "Supplemental Members
Agreement"). (The Member Agreements and the Supplemental Members Agreement
referred to in this Recital E, together with the Custody Agreements and the
counterparts to the Acquiror Shareholders Agreement to be executed by the
Members pursuant to Section 2(e) of the Member Agreement, are referred to
collectively as the "Supplemental Agreements".)
F. SLK Investing Co. The Members directly or indirectly
holding all of the partnership interests in SLK Investing Co. will agree
simultaneously herewith to cause SLK Investing Co. to transfer all of the Class
A limited partnership interest it owns in the Partnership to Acquiror or its
designee at the Effective Time.
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements contained herein
and in the Supplemental Agreements, the parties agree as follows:
{PAGE} 7
ARTICLE I
CERTAIN DEFINITIONS; INTERPRETATION
1.01 Certain Definitions. The following terms are used in
this Agreement and the Supplemental Agreements with the meanings set forth
below:
"Acquiror" has the meaning assigned in the preamble to this
Agreement.
"Acquiror Common Stock" means the Common Stock, par value
$0.01 per share, of Acquiror.
"Acquiror Financial Statements" shall have the meaning
assigned in Section 5.05(d).
"Acquiror Party" means each of Acquiror, its respective
directors, officers, employees, agents and controlling persons, and
each of the heirs, executors, successors and assigns of any of the
foregoing and, without duplication, the Surviving LLC (effective at the
Effective Time).
"Acquiror Shareholders Agreement" means the Shareholders'
Agreement, dated May 7, 1999, among Acquiror and the other parties
named therein.
"Acquiror Subordinated Notes" has the meaning assigned in
Section 3.03.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person. For
the purposes of this definition, (a) "control" when used with respect
to any specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and (b) the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this agreement, as amended or modified from
time to time in accordance with Section 11.02.
"business day" means any day other than a Saturday, a Sunday
or a day on which banks in New York City are authorized or obligated by
law or executive order to close.
"Cash Consideration" has the meaning assigned in Section
3.01(a).
"Cash Pool Amount" means $2.1 billion reduced by the sum of
(A) any amount of the Withdrawn Member Amount that is exchanged for
cash or Acquiror Subordinated Notes pursuant to Section 3.03 and (B)
any amount paid by Acquiror pursuant to Section 8.03(g) to acquire all
of the outstanding Class A limited partnership interests of the
Partnership and
-2-
{PAGE} 8
(C) any charitable contribution, but in no event in excess of
$100,000,000, the Members may cause the Company or the Partnership to
make after the date hereof.
"CBOE" means the Chicago Board Options Exchange, Incorporated.
"CFTC" means the United States Commodity Futures Trading
Commission.
"Chosen Courts" has the meaning set forth in Section 11.07(a).
"Clearing Agreement" has the meaning assigned in Section
5.03(h).
"Closing" and "Closing Date" have the meanings assigned in
Section 2.02.
"Closing Stock Price" has the meaning assigned in Section
3.06.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulation thereunder.
"Company" has the meaning assigned in the preamble to this
Agreement.
"Company Membership Interests" means the membership interests
in the Company.
"Compensation Plans" has the meaning assigned in Section
5.03(o).
"Confidentiality Agreement" means the letter agreement, dated
March 6, 2000, between the Partnership and the Acquiror.
"Consideration Percentage" means, with respect to any Member,
a percentage on a schedule previously agreed to by the Company and
Acquiror. The Company may deliver to Acquiror a revised schedule
changing the Consideration Percentage of any Member or Members if
necessary to reflect any changes in capital at least five (5) days
prior to the Closing.
"Constitutive Documents" means, with respect to any person,
such person's articles or certificate of incorporation and by-laws,
limited liability company agreement or operating agreement, partnership
agreement or other constitutive documents.
"Contract" means, with respect to any person, any agreement,
indenture, undertaking, debt instrument, contract, lease,
understanding, arrangement, or commitment to which such person or any
of its Subsidiaries is a party or by which any of them may be bound or
to which any of their properties may be subject.
"Custodian" has the meaning assigned in the form of Custody
Agreement.
-3-
{PAGE} 9
"Custody Agreements" means, collectively, a Custody Agreement
to be entered into by each of the Members and each other person who
will receive Acquiror Common Stock in the Merger or by election
pursuant to Section 3.03, in substantially the form of Annex 4.
"Disclosure Schedule" has the meaning assigned in Section
5.01.
"Effective Time" has the meaning assigned in Section 2.01(e).
"Election Deadline" has the meaning assigned in Section 3.04.
"Employees" has the meaning set forth in Section 5.03(o).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" has, with respect to any person, the meaning
assigned in Section 5.03(o).
"ERISA Plans" has the meaning assigned in Section 5.03(k).
"Excess Shares" shall mean , initially, that number of shares
of Acquiror Common Stock equal to the quotient derived by dividing (I)the
product of (A) the amount by which the Closing Stock Price exceeds $128.025,
times (B) the Stock Pool Amount, times (C) 0.27 by (II) the Closing Stock Price,
provided, that, if the sale price of shares of Acquiror Common Stock sold
pursuant to Section 3.05 is different from the Closing Stock Price, such number
shall be adjusted so as to enable the Members to receive net proceeds (without
regard to income taxes payable in respect of such sales) not less than the
product described in clause (I) above (it being understood that if, at the time
of any sales of shares of Acquiror Common Stock during the same tax year as the
Closing, the sale price(s) of the shares is less than the Closing Stock Price,
then the number of Excess Shares shall be adjusted appropriately to reflect the
|
End of Preview |
Home Intelligence Services Subscriptions News About Us