Exhibit 2.3
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of _______,
1999 (the "Reorganization Agreement"), between The Yankee Candle Company, Inc.,
a Massachusetts corporation (the "Company"), and Yankee Candle Holdings Corp., a
Delaware corporation ("Holdings").
WHEREAS, the Boards of Directors of each of the Company and
Holdings have determined that it is in the best interests of their respective
organizations that the Company and Holdings enter into an exchange whereby the
Company would issue shares of Common Stock (as defined below) in exchange for
the assets of Holdings on the terms and conditions set forth herein (the
"Exchange");
WHEREAS, in connection with the Exchange, the Company will
cancel its existing no par value common stock and authorize new common stock,
par value $.01 per share, of the Company ("Common Stock"); and
WHEREAS, the Company and Holdings desire to adopt this
Reorganization Agreement as a plan of reorganization in accordance with the
provisions of Section 368(a)(1)(D) of the Internal Revenue Code of 1986, as
amended;
NOW THEREFORE, in consideration of the premises, the mutual
benefits to be derived from this Reorganization Agreement and the covenants,
agreements and promises hereinafter set forth, the parties hereto agree as
follows:
1. THE EXCHANGE. On the business day immediately preceding the
day of the closing of the initial public offering (the "Offering") of Common
Stock registered under the Securities Act of 1933, as amended (the "Effective
Date"), on the terms and conditions set forth herein, Holdings shall sell,
transfer, convey and deliver to the Company all of its right, title and interest
in and to all of its properties and business as a going concern and goodwill and
assets of every kind, nature and description, as the same may exist as of the
Effective Date, wherever such assets are located and whether real, personal or
mixed, tangible or intangible, and whether or not any of such assets have any
value for accounting purposes or are carried or reflected on or specifically
referred to in its books or financial statements (collectively, the "Assets"),
including, without limitation, the following:
(i) Certificates representing 449.9782 shares of
common stock, no par value, of the Company, duly
endorsed in blank or with stock powers attached;
(ii) All cash, including cash deposits and cash
collateral, and other cash equivalents; and
(iii) All books, records, files and data, in each case
however evidenced (including, without limitation,
by computer disk or tape);
in exchange for (i) a number of newly issued, fully paid and non-assessable
shares of Common Stock equal to (a) plus (b) the number obtained by
dividing $27.35 by the price per share to the public of the Common Stock sold
in the Offering and (ii) the issuance of options to purchase shares of
Common Stock to persons with outstanding options to purchase Holdings stock
pursuant to the Holdings Employee Stock Option Plan or director option
agreements, in exchange for the cancellation of such options. The options to
purchase Common Stock shall have the same intrinsic value as the cancelled
options. In connection with the Exchange, Holdings shall retain all of its
liabilities and no such liabilities shall be transferred to, assumed by or
otherwise become liabilities of, the Company.
2. RESTATED ARTICLES OF INCORPORATION. In connection with the
Exchange, the Company will amend and restate its Articles of Organization to
authorize 300,000,000 shares of Common Stock, and 100,000,000 shares of
preferred stock, par value $.01 per share, of the Company.
3. XXXXXXXXX SHARES. Simultaneously with the execution of this
Reorganization Agreement, the Company is entering into an agreement with Xxxxxxx
Xxxxxxxxx (the "Xxxxxxxxx Agreement", attached hereto as Exhibit A) pursuant to
which Xxxxxxx Xxxxxxxxx will exchange his 49.9976 shares of common stock, no par
value, of the Company for shares of Common Stock, simultaneously with the
Exchange.
4. DISSOLUTION OF HOLDINGS. Immediately following the
Exchange, and as part of this Reorganization Agreement, Holdings shall
dissolve in accordance with Section 275 of the Delaware General Corporation
Law. Upon such dissolution, Holdings shall liquidate by distributing all of
its assets to its stockholders pursuant to a plan of dissolution and
liquidation (the "Plan of Dissolution", attached hereto as Exhibit B).
5. TERMINATION. Notwithstanding approval and adoption of this
Reorganization Agreement by the stockholders of each of Holdings and the
Company, this Reorganization Agreement may be terminated, and the Exchange
abandoned, at any time prior to the Effective Date by mutual written consent of
the parties hereto.
6. ENTIRE AGREEMENT. This Reorganization Agreement, the
Xxxxxxxxx
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Agreement and the Plan of Dissolution contain the entire agreement of the
parties with respect to the transactions contemplated hereby.
7. MODIFICATIONS. No amendment or modification of this
Reorganization Agreement shall be valid unless it is in writing and signed by or
on behalf of each of the parties hereto.
8. GOVERNING LAW. This Reorganization Agreement shall be
governed by the laws of the State of New York, without regard to the principles
of conflict of laws.
9. COUNTERPARTS. This Reorganization Agreement may be executed
in one or more counterparts, each of which shall for all purposes be an original
and all of which shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Reorganization Agreement as of the date first above written.
THE YANKEE CANDLE COMPANY, INC.
By:
-------------------------------------
Name:
Title:
YANKEE CANDLE HOLDINGS CORP.
By:
-------------------------------------
Name:
Title:
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Exhibit A
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT, dated as of __________, 1999 (the
"Agreement"), by and between The Yankee Candle Company, Inc., a Massachusetts
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
WHEREAS, in connection with the initial public offering of the
Company's securities (the "Offering"), the Company and Yankee Candle Holdings
Corp., a Delaware corporation ("Holdings"), have entered into an Agreement and
Plan of Reorganization (the "Reorganization Agreement"), dated as of the date
hereof, providing for the issuance by the Company of shares of new common stock,
par value $.01 per share ("New Common Stock"), of the Company to Holdings, in
exchange for the transfer by Holdings of all of its assets, including, without
limitation, its existing shares of common stock, no par value, of the Company
("Existing Common Stock");
WHEREAS, Xxxxxxxxx is the owner of 49.9976 shares of Existing
Common Stock; and
WHEREAS, to carry out the intent of the Reorganization
Agreement, the parties hereto deem it desirable that Xxxxxxxxx exchange his
shares of Existing Common Stock for shares of New Common Stock on the terms and
subject to the conditions set forth herein;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. THE XXXXXXXXX EXCHANGE On the business day immediately
preceding the day of the closing of the Offering (the "Effective Date"), on the
terms and conditions set forth herein, Xxxxxxxxx shall sell, transfer, convey
and deliver certificates representing his 49.9976 shares of Existing Common
Stock, duly endorsed in blank or with stock powers attached, to the Company in
exchange for certificates representing newly issued, fully paid and
non-assessable shares of New Common Stock (the "Xxxxxxxxx Exchange"). Xxxxxxxxx
represents and warrants to the Company that his shares of Existing Common Stock
are on the date hereof, and will be on the Effective Date, free of all liens,
claims and encumbrances except those created pursuant to agreements to which the
Company is a party.
2. TERMINATION. This Agreement shall automatically terminate,
and the Xxxxxxxxx Exchange shall automatically be abandoned, upon the
termination of the Reorganization Agreement. This Agreement may not otherwise be
terminated without the written consent of the parties hereto and Holdings.
3. THIRD PARTY BENEFICIARY. This Agreement shall inure to the
benefit of the
parties hereto and Holdings which shall be a third party beneficiary hereto.
4. ENTIRE AGREEMENT. This Agreement and the Reorganization
Agreement contain the entire agreement of the parties with respect to the
transactions contemplated hereby.
5. MODIFICATIONS. No amendment or modification of this
Agreement shall be valid unless it is in writing and signed by or on behalf of
each of the Company and Xxxxxxxxx.
6. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of New York, without giving effect to the principles of conflict of
laws.
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be an original and all of
which shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE YANKEE CANDLE COMPANY, INC.
By:
-------------------------------------
Name:
Title:
XXXXXXX X. XXXXXXXXX
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Exhibit B
YANKEE CANDLE HOLDINGS CORP.
PLAN OF DISSOLUTION AND LIQUIDATION
As part of the Plan of Reorganization (as defined below) and
following the adoption of this Plan of Dissolution and Liquidation (the "Plan")
by (i) holders of a majority of the outstanding stock entitled to vote thereon
and a majority of the Board of Directors of Yankee Candle Holdings Corp., a
Delaware corporation (the "Company"), or (ii) unanimous consent of all
stockholders entitled to vote thereon, and following the exchange (the
"Exchange") of all of the Company's assets for shares of common stock, par value
$.01 per share ("YCC Common Stock"), of The Yankee Candle Company, Inc., a
Massachusetts corporation ("YCC"), pursuant to that certain Agreement and Plan
of Reorganization dated as of _____, 1999 (the "Plan of Reorganization"), by and
between YCC and the Company:
1. DISSOLUTION. The appropriate officers of the Company will
file a Certificate of Dissolution with the Secretary of State of the State of
Delaware. The date of such filing shall be the effective date of dissolution of
the Company (the "Effective Date").
2. CESSATION OF BUSINESS. After the filing of the Certificate
of Dissolution, the Company will not carry on any business except as may be
necessary or incidental to the winding up of the Company's affairs.
3. PAYMENT OF DEBTS; OPTIONS. The Company will, pursuant to
the Delaware General Corporation Law ("DGCL"), (i) pay or make reasonable
provision to pay or otherwise satisfy all claims and obligations, including
any obligations pursuant to outstanding Company stock option agreements
("Stock Option Agreements"), and all other contingent, conditional, or
unmatured contractual claims known to the Company, (ii) make such provision
as will be reasonably likely to be sufficient to provide compensation for any
claim against the Company which is the subject of a pending action, suit or
proceeding to which the Company is a party, and (iii) make such provision as
will be reasonably likely to be sufficient to provide compensation for claims
that have not been made known to the Company or that have not arisen but
that, based on facts known to the Company, are likely to arise or to become
known to the Company within 10 years of the date of dissolution. Such claims
shall be paid in full and any such provision for payment made shall be made
in full if there are sufficient funds. If there are insufficient funds, such
claims and obligations shall be paid or provided for according to their
priority and, among claims of equal priority, ratably to the extent of funds
legally available therefor. Any assets remaining following the establishment
of such provisions shall be distributed to the holders of Class A Stock (as
defined below). The Company will cause each Stock Option Agreement to be
cancelled and in exchange therefor shall cause to be delivered to each
optionholder a stock option agreement for options to
purchase shares of YCC Common Stock having the same intrinsic value as the
cancelled options.
4. LIQUIDATION OF ASSETS; CANCELLATION OF SHARES. The sole
assets of the Company will be shares of YCC Common Stock and options to
purchase shares of YCC Common Stock which will have been received in exchange
for the cancellation of outstanding options under the Stock Option
Agreements. On the business day immediately preceding the day of the closing
of the initial public offering of YCC Common Stock and after the Exchange,
the YCC Common stock owned by the Company will be distributed to the holders
of Class A Stock as follows: (i) each outstanding share of the Company's
Class B Non-Voting Common Stock, par value $.01 per share ("Class B Stock"),
will be converted into shares of the Company's Class A Common Stock, par
value $.01 per share ("Class A Stock"), at the exchange rate set forth in
Article Fourth, Section A, Subsection 4(d) of the Company's Restated
Certificate of Incorporation (the "Restated Certificate") and (ii)
immediately thereafter, each share of Class A Stock shall be exchanged for
shares of YCC Common Stock, calculated in the manner set forth in Article
Fourth, Section A, Subsection 3 of the Restated Certificate. Following the
Exchange, the certificates representing Class A Stock and Class B Stock will
be cancelled. No interest shall accrue at any time on any assets held for
distribution. At the same time, YCC will deliver to each optionholder a stock
option agreement for options to purchase shares of YCC Common Stock, which
YCC options shall have the same intrinsic value as the cancelled Company
options.
5. LIABILITY OF COMPANY STOCKHOLDERS. After the
dissolution of the Company, Company stockholders will retain liability for
claims against the Company as provided in Section 282 of the DGCL.
6. POWER OF OFFICERS. The officers of the Company shall have
authority to do or authorize any and all acts and things as provided for in the
Plan and any and all such further acts and things as they may consider desirable
to carry out the purposes of the Plan, including the execution and filing of all
such certificates, documents, information returns, tax returns, and other
documents which may be necessary or appropriate to implement the Plan, as well
as the distribution of assets to stockholders of the Company.
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