Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
MERGING
HOCKEY MERGER CO.
(A DELAWARE CORPORATION)
WITH AND INTO
THE HOCKEY COMPANY
(A DELAWARE CORPORATION)
AGREEMENT AND PLAN OF MERGER, dated as of April 2, 2003, by and among The
Hockey Company Holdings Inc., a company organized under the Canada Business
Corporations Act ("Holdings"), Hockey Merger Co., a Delaware corporation and
wholly-owned subsidiary of Holdings ("Merger Sub"), and The Hockey Company, a
Delaware corporation (the "Company"), with the following recitals:
RECITALS
A. Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Merger Sub has one class of
shares, designated as common stock, par value $.01 per share, of which 200
shares have been authorized and of which 200 shares are currently outstanding.
B. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
C. Holdings is the sole stockholder of Merger Sub.
D. Holdings desires that Merger Sub merge with and into the Company (the
"Merger") upon the terms and subject to the conditions herein set forth and in
accordance with the laws of the State of Delaware.
E. This Agreement and Plan of Merger and the Merger have been duly approved
by both the Board of Directors and the sole stockholder of Merger Sub in
accordance with the requirements of Section 251 of the Delaware General
Corporation Law (the "DGCL").
F. This Agreement and Plan of Merger and the Merger have been duly approved
by both the Board of Directors of the Company and the stockholder(s) holding a
majority of the voting common stock, par value $.01 per share (the "Old Voting
Common Stock"), of the Company entitled to vote thereon in accordance with the
requirements of Section 251 of the DGCL.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants herein contained and intending to be legally bound, hereby agree as
follows:
ARTICLE I
General
1.01. THE MERGER. Merger Sub and the Company shall effect the Merger in
accordance with and subject to the terms and conditions of this Agreement and
Plan of Merger (the "Plan"). At the Effective Time (as defined in Section 1.02
hereof), Merger Sub shall be merged with and into the Company, and the Company
shall continue as the surviving corporation (the "Surviving Company") having the
name The Hockey Company, and the separate existence of Merger Sub shall cease,
all with the effect provided in the DGCL; including, without limitation, that
all of the rights, privileges and powers of Merger Sub and all property, real,
personal and mixed, and all debts due to Merger Sub, as well as all other things
and causes of action belonging to Merger Sub and all liabilities and obligations
of Merger Sub shall be transferred to and vested in the Company, as the
surviving entity, and shall thereafter be the property and obligations of the
Company as they were of Merger Sub prior to the Merger, and no such assets or
liabilities shall revert or be in any way impaired by reason of the Merger.
1.02. EFFECTIVENESS. A Certificate of Merger and such other documents and
instruments as are required by, and complying in all respects with, the DGCL (in
any such case, the "Certificate of Merger"), shall be delivered to the
appropriate state officials for filing on the date of the closing of the initial
public offering of Holdings (the "IPO"), which date shall also be the closing
date of the Merger (the "Closing Date"). The Merger shall become effective (the
"Effective Time") at such time as the Certificate of Merger is duly filed with
the Secretary of State of the State of Delaware, or at such other time as is
permissible in accordance with the DGCL and as Merger Sub and the Company shall
agree should be specified in the Certificate of Merger. The effectiveness of the
Merger shall also be contingent upon the closing of the IPO.
1.03. FURTHER ASSURANCES. If at any time the Surviving Company, or its
successors or assigns, shall consider or be advised that any further assignments
or assurances in law or any other acts are necessary or desirable to (a) vest,
perfect or confirm, of record or otherwise, in the Surviving Company its rights,
title or interest in, to or under any of the rights, properties or assets of
Merger Sub acquired or to be acquired by the Surviving Company as a result of,
or in connection with, the Merger, or (b) otherwise carry out the purposes of
this Plan, Merger Sub and its proper officers and directors shall be deemed to
have granted to the Surviving Company an irrevocable power of attorney to
execute and deliver all such proper deeds, assignments and assurances in law and
to do all acts necessary or proper to vest, perfect or confirm title to and
possession of such rights, properties or assets in the Surviving Company and
otherwise to carry out the purposes of this Plan; and the proper officers of the
Surviving Company are fully authorized in the name of Merger Sub or otherwise to
take any and all such actions.
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ARTICLE II
Effect of the Merger on the Capital Stock of the Constituent Corporations
2.01. SECURITIES OF MERGER SUB. At the Effective Time, all of the issued
and outstanding shares of Merger Sub shall, by virtue of the Merger, and without
any action on the part of the holder thereof, cease to be outstanding, shall be
cancelled and retired without any payment of any consideration therefor and
shall cease to exist. As sole stockholder of Merger Sub, Holdings shall receive
value for such cancelled shares through its ownership interest in the Company
and shall receive one (1) share of a new class of voting common stock, par value
$.01 per share (the "Voting Common Stock"), and one (1) share of Special
Dividend Preferred Stock, par value $.01 per share, as such consideration.
2.02. SECURITIES OF THE COMPANY.
(a) At the Effective Time, each of the issued and outstanding shares of Old
Voting Common Stock of the Company shall, and all rights in respect to such
shares of Old Voting Common Stock shall, by virtue of the Merger and without any
action on the part of the holder thereof, be changed and converted into one (1)
share of non-voting exchangeable common stock, par value $.01 per share
("Exchangeable Shares" or the "Merger Consideration"), of the Surviving Company
with the rights, privileges, restrictions and conditions as contained in Exhibit
A to the Amended and Restated Certificate of Incorporation of the Surviving
Company (as defined below).
(b) At the Effective Time, one (1) share of Voting Common Stock and one (1)
share of Special Dividend Preferred Stock, par value $.01 per share, shall be
issued to Holdings.
(c) At the Effective Time, each of the issued and outstanding shares of 13%
Pay-In-Kind Preferred Stock, par value $.01 per share, of the Company owned by
Phoenix Life Insurance Company shall be repurchased by the Company with the
proceeds from the IPO.
(d) At the Effective Time, each of the options granted to directors,
officers and employees of the Company issued and outstanding at the Effective
Time, which are exercisable for Old Voting Common Stock shall, by virtue of the
Merger and without any action on the part of the holder thereof, be changed and
converted into an option exercisable for Exchangeable Shares but shall otherwise
retain the same rights as provided in its initial grant.
(e) At the Effective Time, the warrants held by Phoenix Life Insurance
Company outstanding at the Effective Time, which are exercisable for Old Voting
Common Stock shall, by virtue of the Merger and without any action on the part
of the holder thereof, be changed and converted into warrants exercisable for
Exchangeable Shares but shall otherwise retain the same rights as provided in
such warrants.
(f) At the Effective Time, each of the shares of Old Voting Common Stock
that has not yet been allocated pursuant to the plan of reorganization of April
1997 to be issued to the holders
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of certain unsecured claims or issued to holders of our outstanding Old Voting
Common Stock will be converted into one Exchangeable Share.
(g) After the Effective Time, in accordance with instructions to be
provided in a letter of transmittal sent to the holders of Old Voting Common
Stock, each holder of an outstanding certificate representing shares of the Old
Voting Common Stock shall surrender the same to the Company and each such holder
shall be entitled upon such surrender to receive the number of shares of
Exchangeable Shares on the basis provided herein. Until so surrendered, the
outstanding shares of Old Voting Common Stock to be converted into Exchangeable
Shares as provided herein, may be treated by the Company for all corporate
purposes as evidencing the ownership of the Exchangeable Shares of the Company
as though said surrender and exchange has taken place. After the Effective Time,
each registered owner of any uncertificated shares of Old Voting Common Stock
shall have said shares cancelled and said registered owner shall be entitled to
the number of shares of Exchangeable Shares on the basis provided herein.
2.03. EXCHANGE AGENT. The Company shall appoint a bank, trust company or
transfer agent to act as exchange agent in connection with receipt of the Merger
Consideration pursuant to Section 2.02(a) hereof.
2.04. PAYMENT OF MERGER CONSIDERATION.
(a) PERSONS ENTITLED TO MERGER CONSIDERATION. The manner in which each
share of the Company's Old Voting Common Stock shall be converted or exchanged
as of the Effective Time into the right to receive the Merger Consideration
shall be as set forth in this Section 2.04. All references to "outstanding
shares of Old Voting Common Stock" in this Section 2.04 shall mean all shares of
Old Voting Common Stock outstanding immediately prior to the Effective Time.
Each person or entity which is a record holder of shares of the Old Voting
Common Stock as of the date of approval of this Agreement by the holders of a
majority of the shares of Old Voting Common Stock entitled to vote on the Merger
and who has not validly exercised, preserved and protected Appraisal Rights (as
defined below) and remains a record holder of such stock until the Effective
Time, will be entitled, with respect to all of his, her or its shares, to
receive the Merger Consideration.
(b) APPRAISAL RIGHTS. Any holder of outstanding shares of Old Voting Common
Stock who has not voted for the Merger and who has properly exercised, preserved
and protected appraisal rights under Section 262 of the DGCL ("Appraisal
Rights") shall be entitled to receive only such consideration as determined in
accordance with Section 262 of the DGCL; PROVIDED, HOWEVER, that any holder of
outstanding shares of Old Voting Common Stock who has not voted for the Merger,
but has failed to properly exercise, preserve and protect Appraisal Rights,
shall be entitled to receive the appropriate number of Exchangeable Shares in
accordance with the terms and conditions of this Agreement in lieu of the rights
of a dissenting stockholder under Section 262 of the DGCL.
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ARTICLE III
Miscellaneous Provisions
3.01. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of the
Company, as amended and restated in the form attached as EXHIBIT A hereto (the
"Amended and Restated Certificate of Incorporation"), shall be the Certificate
of Incorporation of the Surviving Company until the same shall be altered,
amended or repealed as therein provided. Holdings hereby acknowledges its
obligations and rights under, and the provisions of, the Amended and Restated
Certificate of Incorporation, in particular the Put Rights of holders of
Exchangeable Shares against Holdings and the Call Right of Holdings against such
holders, and agrees to be bound by and take all such actions as required to be
taken thereby in the Amended and Restated Certificate of Incorporation.
3.02. BY-LAWS. The By-Laws of the Company as they exist at the Effective
Time shall be the By-Laws of the Surviving Company until the same shall be
altered, amended or repealed as therein provided.
3.03. MANAGEMENT. The Board of Directors and officers of the Company shall
continue to manage the Surviving Company after the Effective Time in accordance
with the terms of the Surviving Company's By-Laws and applicable law.
3.04. REORGANIZATION. The Merger is intended to be part of a reorganization
under Section 368(a)(1)(E) of the Internal Revenue Code.
3.05. GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the undersigned have set their hand and seal on the
first date above written.
THE HOCKEY COMPANY HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President
Finance and Administration
HOCKEY MERGER CO.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer and Secretary
THE HOCKEY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President
Finance and Administration
SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
