AGREEMENT AND PLAN OF MERGERAgreement and Plan of Merger |
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
MARCH 31, 2006
between
Sotheby's Holdings, Inc., a Michigan corporation (Sotheby's Michigan)
and
Sotheby's Delaware, Inc., a Delaware corporation (Sotheby's Delaware)
CONTENTS
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Section |
Page |
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1. |
The Merger |
1 |
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1.1 |
Merger |
1 |
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1.2 |
Filing and Effectiveness |
2 |
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1.3 |
Effect of the Merger |
2 |
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2. |
Charter Documents, Directors and Officers |
2 |
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2.1 |
Certificate of Incorporation |
2 |
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2.2 |
By-Laws |
2 |
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2.3 |
Directors and Officers |
2 |
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3. |
Manner of Conversion of Shares |
2 |
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3.1 |
Sotheby's Michigan Common Stock |
2 |
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3.2 |
Sotheby's Michigan Options, Stock Purchase Rights and Other Equity-Based Awards |
3 |
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3.3 |
Sotheby's Delaware Common Stock |
3 |
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3.4 |
Exchange of Certificates |
3 |
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4. |
General Provisions |
4 |
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4.1 |
Covenants of Sotheby's Michigan |
4 |
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4.2 |
Covenants of Sotheby's Delaware |
4 |
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4.3 |
Conditions to the Obligations of the Constituent Corporations to Effect the Merger |
5 |
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4.4 |
Further Assurances |
5 |
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4.5 |
Abandonment |
5 |
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4.6 |
Registered Office |
6 |
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4.7 |
Agreement |
6 |
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4.8 |
Governing Law |
6 |
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4.9 |
Counterparts |
6 |
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4.10 |
No Third Party Beneficiaries |
6 |
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4.11 |
Severability |
6 |
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated March 31, 2006 (the Agreement), is
BETWEEN
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(1) |
Sotheby's Holdings, Inc., a Michigan corporation (Sotheby's Michigan), and |
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(2) |
Sotheby's Delaware, Inc., a Delaware corporation (Sotheby's Delaware), and a wholly owned subsidiary of Sotheby's Michigan. |
Sotheby's Michigan and Sotheby's Delaware are sometimes hereinafter collectively referred to as the Constituent Corporations.
WHEREAS
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(A) |
Sotheby's Michigan is a corporation organized and existing under the laws of the State of Michigan, and, as of March 24, 2006 has 59,733,442 shares of Class A Limited Voting Common Stock issued and outstanding (Sotheby's Michigan Common Stock). |
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(B) |
Sotheby's Delaware is a corporation organized and existing under the laws of the State of Delaware, and, as of the date hereof, has 1,000 shares of common stock, par value $0.01 per share, issued and outstanding (Sotheby's Delaware Common Stock), all of which are held by Sotheby's Michigan. |
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(C) |
The respective Boards of Directors of Sotheby's Michigan and Sotheby's Delaware have adopted and approved, respectively, this Agreement, which is the plan of merger for purposes of the Michigan Business Corporation Act, the agreement of merger for purposes of the Delaware General Corporation Law and the plan of reorganization for purposes of Section 368 of the U.S. Internal Revenue Code of 1986, as amended (the Code), and the Treasury regulations promulgated thereunder. |
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(D) |
The Board of Directors of Sotheby's Michigan has determined to recommend this Agreement and the transactions contemplated by this Agreement, including the Merger, to the shareholders of Sotheby's Michigan, and the Board of Directors of Sotheby's Delaware has determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are advisable. |
NOW THEREFORE, in consideration of the mutual agreements and covenants set forth herein, Sotheby's Michigan and Sotheby's Delaware hereby agree, subject to the terms and conditions hereinafter set forth, as follows:
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1. |
THE MERGER |
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1.1 |
Merger |
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the provisions of the Delaware General Corporation Law and the Michigan Business Corporation Act, Sotheby's Michigan shall be merged with and into Sotheby's Delaware (the Merger) at the Effective Time of the Merger (as defined below) in a transaction intended to qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, whereupon the separate existence of Sotheby's Michigan shall cease and Sotheby's Delaware shall become, and is hereinafter sometimes referred to as, the Surviving Corporation.
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1.2 |
Filing and Effectiveness |
The Merger shall become effective upon the filing of the certificate of merger with the Secretary of State of the State of Delaware and the Bureau of Commercial Services of the Michigan Department of Labor & Economic Growth of the State of Michigan, unless another date and time is set forth in the certificate of merger. The date and time when the Merger shall become effective is referred to herein as the Effective Time of the Merger.
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1.3 |
Effect of the Merger |
As of the Effective Time of the Merger, the separate existence of Sotheby's Michigan shall cease, and the Merger shall have the effects set forth in the applicable provisions o
