Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
MERGING
BANC OF AMERICA SECURITIES HOLDINGS CORPORATION
INTO
MERRILL LYNCH & CO., INC.
THIS AGREEMENT AND PLAN OF MERGER dated November 1, 2010, made by and between MERRILL LYNCH &
CO., INC. and BANC OF AMERICA SECURITIES HOLDINGS CORPORATION, said two business entities being
hereinafter sometimes referred to as Survivor and Absorbed, respectively, or, together as the
Constituent Companies, WITNESSETH THAT:
WHEREAS, Survivor is a corporation organized and existing under the laws of the State of
Delaware with its principal office in the State of North Carolina being located at 100 North Tryon
Street, Charlotte, NC 28255; and
WHEREAS, Absorbed is a corporation organized and existing under the laws of the State of
Delaware with its principal office in the State of North Carolina being located at 100 North Tryon
Street, Charlotte, NC 28255; and
WHEREAS, the board of directors and shareholders of the Constituent Companies have determined
that it is advisable that Absorbed be merged into Survivor, on the terms and conditions hereinafter
set forth, in accordance with the applicable provisions of the laws of the State of Delaware, which
laws permit such merger;
NOW, THEREFORE, in consideration of the promises and of the mutual agreements, covenants and
provisions hereinafter contained, the parties hereto agree that Absorbed be merged into Survivor,
and that the terms and conditions of such merger, the mode of carrying the same into effect, and
the manner and basis of disposing of the capital stock of Absorbed shall be as follows:
Section 1. Absorbed and Survivor shall be merged into a single corporation, in accordance
with the applicable provisions and laws of the State of Delaware, by Absorbed merging into
Survivor, which shall be the surviving corporation. The separate existence of Absorbed
shall cease and the existence of Survivor shall continue unaffected and unimpaired by the
merger with all rights, privileges, immunities and powers, and subject to all duties and
liabilities of a corporation organized under the Delaware General Corporation Laws.
Section 2.
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a. |
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The Certificate of Incorporation of Survivor shall continue to
be its Certificate of Incorporation following the Effective Date (as defined
below) of the merger, until the same shall be altered or amended. |
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b. |
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The Bylaws of Survivor shall be and remain the Bylaws of
Survivor until altered, amended or repealed. |
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c. |
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The directors and officers of Survivor in office on the
Effective Date of the merger shall continue in office and shall constitute the
directors and officers of Survivor for the term elected until their respective
successors shall be elected or appointed and qualified. |
Section 3. On the Effective Date of the merger:
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a. |
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Survivor shall possess all the rights, privileges, immunities,
powers and franchises of a public as well as of a private nature, and shall be
subject to all of the restrictions, disabilities and duties of each of the
Constituent Companies; and all property, real, personal and mixed, including
all patents, applications for patents, trademarks, trademark registrations and
applications for registration of trademarks, together with the goodwill of the
business in connection with which said patents and marks are used, and all
debts due on whatever account, including subscriptions to shares of capital
stock, and all other choses in action and all and every other interest of or
belonging to or due to each of the Constituent Companies shall be deemed to be
transferred to and vested in Survivor without further act or deed, and the
title to any real estate, or any interest therein, vested in either of the
Constituent Companies shall not revert or be in any way impaired by reason of
the merger. |
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b. |
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Survivor shall be responsible and liable for all the
liabilities and obligations of each of the Constituent Companies; and any claim
existing or action or proceeding pending by or against either of the
Constituent Companies may be prosecuted to judgment as if the merger had not
taken place, or Survivor may be substituted in its place and neither the rights
of creditors nor any liens upon the property of either of the Constituent
Companies shall be impaired by the merger. Survivor shall execute and deliver
any and all documents which may be required for it to assume or otherwise
comply with outstanding obligations of Absorbed. |
Section 4. The manner and basis of converting the outstanding shares of the capital stock
of the Constituent Companies is as follows:
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a. |
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Each share of capital stock of Absorbed issued and outstanding
at the Effective Date of the merger shall be cancelled and no consideration
shall be issued or paid with respect thereto. |
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b. |
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The shares of capital stock of Survivor that are issued and
outstanding immediately prior to the Effective Date of the merger shall remain
issued and outstanding and shall be unaffected by the merger. |
Section 5. Survivor shall pay all expenses of accomplishing the merger.
Section 6. If at any time Survivor shall consider or be advised that any further assignment
or assurances in law are necessary or desirable to vest or to perfect or confirm of record
in Survivor the title to any property or rights of Absorbed, or to otherwise carry out the
provisions hereof, the Board of Directors of Absorbed as of the Effective Date of the merger
shall execute and deliver any and all proper deeds, assignments and assurances in law, and
do all things necessary or proper to vest, perfect or confirm title to such property or
rights of Survivor.
Section 7. Each of the Constituent Companies shall take, or cause to be taken, all actions
or do or cause to be done, all things necessary, proper or advisable under the laws of the
State of Delaware, to consummate and make effective the merger, subject, however, to the
appropriate vote or consent of the shareholders of each of the Constituent Companies in
accordance with the requirements of the applicable provisions of the laws of the State of
Delaware.
Section 8. The Effective Date and time of the merger shall be specified in the Certificate
of Merger filed with the Delaware Secretary of State (the “Effective Date”), provided that
upon such date, all acts and things shall have been done as shall be required for
accomplishing the merger under the applicable provisions of the laws of the State of
Delaware.
Section 9. Anything herein or elsewhere to the contrary notwithstanding, this Agreement and
Plan of Merger may be abandoned by actions of the Board of Directors of the Constituent
Companies at any time prior to the Effective Date specified in Section 8 above of this
Agreement and Plan of Merger.
Section 10. This Agreement and Plan of merger shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to principles of conflict
of laws.
Signature page follows