EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement"), made and entered
into as of this 21th day of October, 1996, by and among TEARDROP GOLF COMPANY, a
corporation organized under the laws of the State of Delaware ("TGC") and
TEARDROP PUTTER CORPORATION, a corporation organized under the laws of the State
of South Carolina ("TPC"). TGC and TPC are collectively referred to herein as
the "Constituent Corporations":
W I T N E S S E T H:
WHEREAS, subject to the terms and conditions of this Merger Agreement, TGC
and TPC desire and deem it in their respective best interests that TPC be merged
with and into TGC;
WHEREAS, the respective boards of directors of the Constituent Corporations
have duly approved this Merger Agreement; and
WHEREAS, the shareholders of TPC have duly approved this Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. THE MERGER.
1.1 THE MERGER. Subject to the terms and conditions hereof, the parties
hereto agree that TPC shall be merged into TGC in accordance with the applicable
provisions of the South Carolina Code and the Delaware General Corporation Law
and the separate existence of TPC shall thereupon cease (the "Merger"). TGC
shall be the surviving corporation in the Merger (the "Surviving Corporation")
and shall be governed by the laws of the State of Delaware. Subject to the
terms and conditions hereof, the parties hereto shall take all actions necessary
in accordance with applicable law and their respective Articles of Incorporation
and Bylaws to cause the Merger to be consummated.
1.2 APPROVAL AND EFFECTIVE DATE OF THE MERGER. The respective Boards of
Directors of the Constituent Corporations have duly approved this Merger
Agreement. The shareholders of TPC have duly appoved this Merger Agreement as
provided by the South Carolina Code. No shares of stock of TGC were issued
prior to the adoption of this Merger Agreement by the Board of Directors of
TGC and, by virtue of he applicability of Section 251(f) of the Delaware
General Corporation Law, no vote of the stockholders of TGC is required. Upon
the approval of this Merger Agreement, in accordance with the requirements of
the South Carolina Code and the Delaware General Corporation Law, all
required documents shall be executed, filed, and recorded and all required
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acts shall be done in order to accomplish the Merger under the provisions of the
South Carolina Code, Delaware General Corporation Law and this Merger Agreement.
The Merger shall become effective upon the filing of a Certificate of Merger
with the Secretary of State of Delaware (the "Effective Date").
1.3 ARTICLES, BYLAWS, OFFICERS AND DIRECTORS OF SURVIVING CORPORATION.
The name of the surviving corporation shall be "TearDrop Golf Company". The
Certificate of Incorporation and the Bylaws of TGC as existing and constituted
immediately prior to the Effective Date shall be the Certificate of
Incorporation and the Bylaws of the Surviving Corporation after the Effective
Date until amended in accordance with applicable law.
The officers and directors of TGC holding office immediately prior to the
Effective Date shall be the officers and directors of the Surviving Corporation
after the Effective Date.
SECTION 2. TERMS AND CONDITIONS
2.1 At the Effective Date, TGC shall thereupon and thereafter possess all
the rights, privileges, powers and franchises of a public as well as of a
private nature, and be subject to all the restrictions and duties of each
Constituent Corporation; and all rights, privileges, powers and franchises of
each Constituent Corporation, and all property, real, personal and mixed, and
all debts due to any Constituent Corporation on whatever account, as well as for
stock subscriptions, and all other things in action or belonging to each
Constituent Corporation shall be vested in TGC; and all property, rights,
privileges, powers and franchises, and all and every other interest shall be
thereafter as effectually the property of TGC as they were of the respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise in the Constituent Corporations shall not revert or be in any way
impaired by reason of the Merger; but all rights of creditors and all liens upon
any property of the Constituent Corporations shall be preserved unimpaired, and
all debts, liabilities and duties of the respective Constituent Corporations
shall thenceforth attach to TGC and may be enforced against TGC to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by it.
2.2 The assets, liabilities, reserves and accounts of each Constituent
Corporation shall be recorded on the books of TGC at the amounts at which they,
respectively, were carried on the books of such Constituent Corporation at the
Effective Date.
SECTION 3. CONVERSION AND EXCHANGE OF SHARES.
3.1 EXCHANGE OF SHARES. At the Effective Date, by virtue of the Merger
and without any action on the part of TPC or TGC or the holder of any of the
following securities, each share of TPC's common stock ("TPC Common Stock"),
issued and outstanding immediately prior to
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the Effective Date (as defined herein) shall be converted and exchangeable for
3,333.33 shares of TGC's common stock ("TGC Common Stock"). Upon conversion,
all TPC Common Stock outstanding immediately prior to the Effective Date shall
be cancelled.
3.2 STOCK TRANSFER BOOK. At the Effective Date, the stock transfer books
of TPC shall be closed and there shall be no further registration or transfer of
stock thereafter on the records of TPC.
SECTION 4. MISCELLANEOUS
4.1 BINDING EFFECT. This Agreement shall inure to the benefit of and
shall be binding upon TPC, TGC and their respective successors and assigns and
the shareholders and each of their respective personal representatives,
executors, heirs, beneficiaries and assigns.
4.2 CONSTRUCTION. This Agreement shall be deemed to be made in, and in
all respects shall be interpreted, construed and governed by and in
accordance with the laws of, the State of Delaware. No provision of this
Agreement or any related document shall be construed against or interpreted
to the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party's having or being deemed to have
structured or drafted such provision.
4.3 FURTHER ACTION. Subject to the terms and conditions hereof, each of
the parties hereto further agrees to use all reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement as soon as practical.
4.4 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings relating to such subject
matter. This Agreement may be modified only by written instrument signed by
each of the parties hereto.
4.5 HEADINGS. The section and paragraph headings contained in this Merger
Agreement are for reference purposes only and shall not affect in any way the
meaning or interprestation of this Merger Agreement.
4.5 EXECUTION IN COUNTERPARTS. For the convenience of the parties and to
facilitate the filing and recording of this Merger Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
ATTEST: TEARDROP PUTTER CORPORATION
a South Carolina Corporation
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------ ------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
Secretary President
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ATTEST: TEARDROP GOLF COMPANY
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxx ---------------------
------------------------ Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx President
Assistant Secretary
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