Exhibit 2.1
AGREEMENT AND PLAN OF MERGER FOR THE P MERGER
---------------------------------------------
This Agreement and Plan of Merger for the P Merger (this "AGREEMENT"),
dated as of February 9, 1998, is entered into by and among, Premier Parks Inc.,
a Delaware corporation ("PARENT"), Premier Parks Holdings Corporation, a
Delaware corporation ("HOLDCO") and a direct, wholly-owned subsidiary of Parent,
and Premier Parks Merger Corporation, a Delaware corporation ("MERGER SUB P")
and a direct, wholly-owned subsidiary of Holdco, in connection with the
transactions contemplated by that certain Agreement and Plan of Merger, dated as
of the date hereof (the "MERGER AGREEMENT"), by and among, Parent, Holdco,
Merger Sub P, PPStar I, Inc., a Delaware corporation ("MERGER SUB S") and a
direct, wholly-owned subsidiary of Holdco, the Six Flags Entertainment Company,
a Delaware corporation (the "COMPANY"), and the holders (the "SELLERS") of all
of the issued and outstanding Company capital stock.
WHEREAS, Parent has an authorized capitalization consisting of (i)
90,000,000 shares of Common Stock, par value $.05 per share ("PARENT COMMON
STOCK"), of which 18,873,111 shares are issued and outstanding as of the date
hereof, and (ii) 500,000 shares of preferred stock, par value $1.00 per share,
of which no shares are issued and outstanding as of the date hereof;
WHEREAS, Holdco has an authorized capitalization consisting of (i) 3,000
shares of Common Stock, par value $.01 per share ("HOLDCO COMMON STOCK"), of
which 10 shares are issued and outstanding as of the date hereof and are owned
by Parent;
WHEREAS, Merger Sub P has an authorized capitalization consisting of 3,000
shares of common Stock, par value $.01 per share ("MERGER SUB P COMMON STOCK"),
10 shares of which are issued and outstanding as of the date hereof and are
owned by Holdco;
WHEREAS, the Board of Directors of Parent has determined it to be in the
best interest of Parent to effect a change in corporate structure whereby Parent
will become the wholly owned subsidiary of Holdco.
WHEREAS, it is intended that the foregoing structure be effected without a
vote of Parent's stockholders pursuant to and in accordance with Section 251(g)
of the Delaware General Corporation Law (the "DGCL"); and
WHEREAS, the Board of Directors of each of Parent, Holdco and Merger Sub P
have heretofore approved this Agreement and the P Merger in accordance with the
DGCL and upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 As used in this Agreement, and unless the context requires
otherwise, capitalized terms used herein but not defined herein shall have the
meanings ascribed to such terms in the Merger Agreement.
ARTICLE 2
THE P MERGER
Section 2.1 THE P MERGER. Upon the terms and subject to the conditions
of this Agreement, at the Effective Time of the P Merger (as defined in Section
2.2) and in accordance with the DGCL, Merger Sub P shall be merged with and into
Parent. Following the P Merger, the separate existence of Merger Sub P shall
cease and Parent shall continue as the surviving corporation (the "P SURVIVING
CORPORATION").
Section 2.2 EFFECTIVE TIME. The P Merger shall become effective at the
time of filing of a certified copy of this Agreement with the Secretary of State
of the State of Delaware as required by the DGCL (the "Effective Time"), which
Effective Time shall be prior to the effective time of the merger of Merger Sub
S with and into the Company pursuant to Section 2.1 of the Merger Agreement.
Section 2.3 EFFECTS OF THE MERGERS. The P Merger shall have the effects
set forth in Section 259 of the DGCL.
ARTICLE 3
CONVERSION OF CAPITAL STOCK OF
THE CONSTITUENT CORPORATIONS
Section 3.1 As of the Effective Time of the P Merger, by virtue of the P
Merger and without any action on the part of the holder of any shares of Parent
Common Stock or any shares of capital stock of Merger Sub P:
3.1.1 CONVERSION OF COMMON STOCK OF MERGER SUB P. Each share of
Merger Sub P Common Stock issued and outstanding immediately prior to the
Effective Time of the P Merger shall be converted into one (1) fully paid and
non-assessable share of Common Stock, par value $.05 per share, of the P
Surviving Corporation.
-2-
3.1.2 CONVERSION OF PARENT TREASURY STOCK. Each share of Parent
Common Stock that is owned by Parent or any of its subsidiaries immediately
prior to the Effective Time of the P Merger shall be converted into one (1)
share of Holdco Common Stock. As of the Effective Time, all such shares of
Parent Common Stock shall no longer be outstanding and shall automatically be
canceled and shall cease to exist. As of the Effective Time of the P Merger,
each certificate theretofore representing such shares of Parent Common Stock,
without any action on the part of Holdco, Parent or the holder thereof shall be
deemed to represent a number of shares of Holdco Common Stock equivalent to that
number of shares of Parent Common Stock formerly represented by such certificate
and shall cease to represent any rights in any shares of Parent Common Stock.
3.1.3 CONVERSION OF PARENT COMMON STOCK. Each share of Parent
Common Stock issued and outstanding immediately prior to the Effective Time of
the P Merger (other than shares referred to in Section 3.1.2 hereof) shall be
converted into one (1) fully paid and nonassessable share of Holdco Common
Stock. As of the Effective Time of the P Merger, all such shares of Parent
Common Stock shall no longer be outstanding and shall automatically be canceled
and shall cease to exist. As of the Effective Time of the P Merger, each
certificate theretofore representing such shares of Parent Common Stock, without
any action on the part of Holdco, Parent or the holder thereof, shall be deemed
to represent a number of shares of Holdco Common Stock equivalent to that number
of shares of Parent Common Stock formerly represented by such certificate and
shall cease to represent any rights in any shares of Parent Common Stock.
Section 3.2 EXCHANGE RATIO FOR PARENT OPTIONS AND PARENT WARRANTS.
(a) Prior to the Effective Time of the P Merger, Parent and Holdco
shall take all requisite action so that, as of the Effective Time of the P
Merger, each Parent Option and each Parent Warrant (and each other right to
receive shares of Parent Common Stock), in each case outstanding immediately
prior to the Effective Time of the P Merger, shall be assumed by Holdco and
represent an option or warrant (or other right), as the case may be, to purchase
shares of Holdco Common Stock, as provided below. Following the Effective Time
of the P Merger, each such Parent Option shall continue to have, and shall be
subject to, the same terms and conditions set forth in the applicable Parent
Stock Option Plan pursuant to which such Parent Option was granted, and each
such Parent Warrant (or other such right) shall continue to have, and shall be
subject to, the same terms and conditions, in each case as in effect immediately
prior to the Effective Time of the P Merger, except that each such Parent Option
or Parent Warrant (or other right) shall be exercisable for a number of shares
of Holdco Common Stock equal to the number of shares of Parent Common Stock for
which such Parent Option or Parent Warrant (or other right) was exercisable
immediately prior to the Effective Time of the P Merger.
(b) As of the Effective Time of the P Merger, Holdco shall enter into
an assumption agreement with respect to each such Parent Option and each such
Parent Warrant (or other such right) which, in the case of any Parent Option,
Parent Warrant or other right,
-3-
shall provide for Holdco's assumption of the obligations of Parent under the
relevant Parent Stock Option Plan (and any related agreement pursuant to which
options, warrants or other rights may have been granted). Prior to the
Effective Time of the P Merger, Parent shall make such amendments, if any, to
the Parent Stock Option Plans as shall be necessary to permit such assumption in
accordance with this Section 3.2(b).
(c) It is the intention of the parties that, to the extent that any
Parent Option constitutes an "incentive stock option" (within the meaning of
Section 422 of the Code) immediately prior to the Effective Time of the P
Merger, such Parent Option shall continue from and after the Effective Time to
qualify as an incentive stock option to the maximum extent permitted by Section
422 of the Code, and that the assumption of the Parent Option provided by this
Section 3.2 shall satisfy the conditions of Section 424(a) of the Code.
Section 3.3 ADOPTION OF EMPLOYMENT AGREEMENTS. At the Effective Time,
Holdco shall assume all of Parent's obligations to issue restricted stock under
the Employment Agreement of Parent, each dated as of July 31, 1997, with each of
Xxxxxx X. Xxxxx, Xxxx Story and Xxxxx X. Xxxxxxxxxx and all references therein
to Parent Common Stock shall be deemed to be references to Holdco Common Stock
from and after the Effective Time.
ARTICLE 4
THE SURVIVING CORPORATION
Section 4.1 CERTIFICATE OF INCORPORATION. At the Effective Time of the
P Merger, the certificate of incorporation of Parent, as in effect immediately
prior to the Effective Time of the P Merger, shall be amended so as to read in
its entirety in the form annexed as Exhibit A hereto.
Section 4.2 BY-LAWS. The by-laws of Parent, as in effect immediately
prior to the Effective Time of the P Merger, shall become, from and after the
Effective Time of the P Merger, the by-laws of the P Surviving Corporation,
until thereafter altered, amended or repealed as provided therein and in
accordance with applicable law.
Section 4.3 DIRECTORS. The directors of Parent in office immediately
prior to the Effective Time of the P Merger, shall be the directors of the P
Surviving Corporation until the earlier of their death, resignation or removal
or until their respective successors are duly elected or appointed and
qualified, as the case may be.
Section 4.4 OFFICERS. The officers of Parent in office immediately
prior to the Effective Time of the P Merger, shall be the officers of the P
Surviving Corporation until the earlier of their death, resignation or removal
or until their respective successors are duly elected or appointed and
qualified, as the case may be.
-4-
ARTICLE 5
COVENANTS
Section 5.1 COMPLIANCE WITH SECTION 251(G) OF THE DGCL. Holdco shall
take any and all actions required so that the requirements of Sections 251(g)(4)
and 251(g)(6) of the DGCL are fully satisfied in connection with the P Merger.
ARTICLE 6
CONDITIONS OF MERGER
Section 6.1 The obligations of each party hereto to effect the P Merger
shall be subject to the satisfaction of the condition that, immediately prior to
the Effective Time of the P Merger, the conditions to the obligations of Parent,
Holdco and Merger Sub S to effect the merger of Merger Sub S with and into the
Company (the "S MERGER") in accordance with the terms of the Merger Agreement
shall have been satisfied (or waived as permitted under the Merger Agreement)
(other than the conditions set forth in Sections 7.1.3 (with respect to the P
Merger), 7.2.3 (with respect to the Sellers' Closing Certificate), 7.2.5 (with
respect to the Equity Issuance), 7.2.6 (with respect to the legal opinion) and
7.2.7 (with respect to the tax opinion) of the Merger Agreement and the
performance of the covenant set forth in Section 6.29 of the Merger Agreement
(collectively, the "EXCEPTED CONDITIONS")), such that subsequent to the
Effective Time of the P Merger, the parties to the Merger Agreement are
obligated to effect the S Merger upon satisfaction (or waiver as permitted under
the Merger Agreement) of the Excepted Conditions.
Section 6.2 The obligations of Parent and Merger Sub P to effect the P
Merger shall be subject to the satisfaction of the condition that immediately
prior to the Effective Time of the P Merger, Holdco shall have fully performed
its obligations under Article 5 hereof.
ARTICLE 7
TERMINATION AND AMENDMENT
Section 7.1 TERMINATION. This Agreement may be terminated and the P
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time of the P Merger by action of the Board of Directors of Parent, the Board of
Directors of Holdco or the Board of Directors of Merger Sub P if such Board of
Directors should determine that for any reason the completion of the
transactions provided for herein would be inadvisable or not in the best
interest of such corporation or its stockholders. In the event of such
termination
-5-
and abandonment, this Agreement shall become null and void and neither Parent,
Holdco or Merger Sub P, nor their respective stockholders, directors or officers
shall have any liability as between and among them with respect to such
termination and abandonment.
Section 7.2 AMENDMENT. Subject to the DGCL, this Agreement may be
supplemented, amended or modified by the mutual consent of the Boards of
Directors of the parties to this Agreement.
ARTICLE 8
MISCELLANEOUS PROVISIONS
Section 8.1 MISCELLANEOUS PROVISIONS.
8.1.1 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8.1.2 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
8.1.3 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the principles of conflicts of law of such State (except to the extent that
the DGCL is applicable to the transactions contemplated by this Agreement).
8.1.4 JURISDICTION.
(a) EACH OF THE PARTIES HERETO AGREES THAT ANY ACTION, SUIT OR
PROCEEDING AGAINST ANY OF THE PARTIES HERETO ARISING UNDER OR RELATING IN ANY
WAY TO THIS AGREEMENT OR A TRANSACTION CONTEMPLATED HEREBY MAY ONLY BE BROUGHT
OR ENFORCED IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND EACH OF THE PARTIES HERETO IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN RESPECT OF ANY SUCH
ACTION, SUIT OR PROCEEDING. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PRE-PAID,
RETURN RECEIPT REQUESTED, TO SUCH PARTY AT ITS ADDRESSES PROVIDED FOR NOTICES
HEREUNDER.
-6-
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION, SUIT OR PROCEEDING ARISING UNDER OR RELATING IN ANY WAY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY COURT LOCATED IN THE
STATE OF NEW YORK AND HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT A COURT
LOCATED IN THE STATE OF NEW YORK IS NOT A CONVENIENT FORUM FOR ANY SUCH ACTION,
SUIT OR PROCEEDING.
8.1.5 SEVERABILITY. Should any clause, sentence, paragraph,
subsection, Section or Article of this Agreement be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement, and the part or parts
of this Agreement so held to be invalid, unenforceable or void will be deemed to
have been stricken here from by the parties hereto, and the remainder will have
the same force and effectiveness as if such stricken part or parts had never
been included herein.
8.1.6 FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such other acts as may be reasonably required or desirable
to carry out or to perform the provisions of this Agreement.
-7-
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
PREMIER PARKS INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
PREMIER PARKS HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title Chief Financial Officer
PREMIER PARKS MERGER CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title Chief Financial Officer
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
PREMIER PARKS OPERATIONS INC.
ARTICLE I
The name of the corporation is Premier Parks Operations Inc. (hereinafter
referred to as the "CORPORATION").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is Corporation Service Company, 0000 Xxxxxx Xxxx, xx xxx Xxxx xx Xxxxxxxxxx,
Xxxxxx of New Castle. The name of the registered agent of the Corporation at
such address is Corporation Service Company.
ARTICLE III
The nature of the business and purposes to be conducted or promoted are:
To own, sell, purchase, rent, lease, develop, subdivide, hire, exchange,
release, partition, assign, mortgage, pledge, hypothecate, grant security
interests in, encumber, negotiate, convey, transfer or otherwise dispose of,
deal with or grant interests in any real estate, or the improvements thereon,
including options for a fee, commission or other valuable consideration and
negotiate any such activity for others and to engage generally in all aspects of
the real estate business;
To buy, hold, sell and deal in and with goods, wares, merchandise,
equipment, tools, machinery, devices, material and every other kind of personal
or other property;
To purchase, construct, manage for others, own and operate dwelling and
other houses, apartments, condominiums, commercial buildings and other
improvements on real estate, to rent or otherwise use same, and to sell, dispose
of or otherwise turn the same to account;
To buy, acquire, hold sell and deal in stocks, bonds, certificates of
participation, securities and other interests;
-1-
To borrow money and contract debts when necessary for the transaction of
its business, or for the exercise of its rights, privileges or franchises, issue
bonds, promissory notes, bills of exchange, debentures and other obligations and
evidences of indebtedness, secured or unsecured, for money borrowed or in
payment for property purchased or acquired, or for any other lawful objects;
To issue shares or other securities, which may be secured or unsecured and
may be subordinated to any indebtedness of the Corporation and may be
convertible into shares, and to purchase or otherwise acquire, hold, cancel,
reissue, sell and transfer any of such securities;
To make, enter into and perform leases, contracts, obligations and other
agreements of every sort;
To lend money, secured or unsecured, and give and receive negotiable or
non-negotiable instruments therefor; to guarantee, co-sign, indemnify or act as
surety with respect to payment or performance of obligations of third parties;
and to assign, convey, transfer, mortgage, subordinate, pledge, grant security
interests in, encumber or hypothecate any property of the corporation to secure
any of the foregoing;
To enter into joint ventures, general, special or limited partnerships as a
general, special or limited partner, and any other lawful combinations or
associations.
To engage in any lawful act or activity of which corporations may be
organized under the General Corporation Law of Delaware.
ARTICLE IV
The total number of all classes of stock which the Corporation shall have
authority to issue is One Thousand (1,000) shares of Common Stock, par value
$.05 per share.
ARTICLE V
The name and mailing address of the sole incorporator are as follows:
Xxxxx X. Xxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
-2-
ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
To adopt, amend, or repeal the Bylaws of the Corporation, subject to the
authority of the stockholders to adopt, amend, or repeal the same;
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the Corporation; and
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
ARTICLE VIII
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware, may, on application in a summary way of the Corporation,
or of any creditor or stockholder thereof, or on the application of any receiver
or receivers appointed for the Corporation under the provisions of Section 291
of Title 8 of the Delaware Code, or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or a class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all of the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
-3-
ARTICLE IX
Meetings of the stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the Bylaws of the Corporation. Elections of directors
need not be by written ballot unless the Bylaws of the Corporation shall so
provide.
ARTICLE X
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE XI
No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
PROVIDED, HOWEVER, that this provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 (or any successor section) of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. This Article XI shall not eliminate or limit the
liability of a director for any act or omission occurring prior to the date when
this Article XI becomes effective. Neither the amendment nor repeal of this
Article XI nor the adoption of any provision of this Certificate of
Incorporation inconsistent with this Article XI shall eliminate or reduce the
effect of this Article XI in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article XI, would accrue or arise,
prior to such amendment or repeal, or adoption of an inconsistent provision.
ARTICLE XII
Any act or transaction by or involving the Corporation that requires for
its adoption under the Delaware General Corporation Law (the "GCL") or this
Restated Certificate of Incorporation, the approval of the stockholders of the
Corporation, shall also require pursuant to Section 251(g) of the GCL, the
approval of the stockholders of Premier Parks Inc. (or any successor by merger)
by the same vote as is required by the provisions of the GCL and/or by this
Restated Certificate of Incorporation.
-4-
