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Exhibit 10.20
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated as of
this 15th day of May, 2001, by and between S2 GOLF INC., a New Jersey
corporation ("S2 Golf"), and S2 Golf's wholly-owned subsidiary, S2 GOLF
ACQUISITION CORP., a New Jersey corporation ("Acquisition Corp."; S2 GOLF and
Acquisition Corp., the "Constituent Corporations").
WHEREAS, S2 Golf is a corporation duly organized and existing under
the laws of the State of New Jersey;
WHEREAS, Acquisition Corp. is a corporation duly organized and
existing under the laws of the State of New Jersey;
WHEREAS, the Board of Directors of S2 Golf deem it advisable and in
the best interests of S2 Golf's shareholders that Acquisition Corp. merge with
and into S2 Golf; and
WHEREAS, the Board of Directors of S2 Golf has approved and adopted
this Agreement and the transactions contemplated hereby, including the merger of
Acquisition Corp. with and into S2 Golf (the "Merger") upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and the
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE 1
THE MERGER
1.01. THE MERGER. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Business Corporation Act of
the State of New Jersey (the "Corporation Act"), at the Effective Time (as
defined in Section 1.03 hereof), Acquisition Corp. will merge with and into S2
Golf. At the Effective Time, the separate identity, existence and corporate
organization of Acquisition Corp shall cease, all the rights, privileges,
immunities, powers and purposes of Acquisition Corp. shall be merged into S2
Golf and S2 Golf shall be fully vested therewith, and S2 Golf and Acquisition
Corp. shall be a single corporation.
1.02. THE SURVIVING CORPORATION. S2 Golf shall be the surviving
corporation of the merger ("Surviving Corporation"). At the Effective Time, the
corporate identity and existence of S2 Golf, with all its rights, privileges,
powers, immunities, purposes and franchises shall continue unaffected and
unimpaired by the Merger and it shall continue its corporate existence under the
laws of the State of New Jersey.
1.03. EFFECTIVE TIME. If this Agreement is not terminated as
contemplated by Article 4.02 hereof, S2 Golf will file, or cause to be filed,
with the Secretary of State of New Jersey a
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certificate of merger (the "Certificate of Merger"), substantially in the form
set forth in Exhibit A attached hereto, and executed in accordance with the
relevant provisions of the Corporation Act. The Merger will become effective
upon the close of business on May 25, 2001 ( the "Effective Time").
1.04. EFFECT OF THE MERGER. (a) The Surviving Corporation shall be
possessed of all assets and property of every description and every interest
therein, wherever located, and the rights, privileges, licenses, immunities,
powers, purposes, franchises and authority, of a public as well as of a private
nature, of each of the Constituent Corporations, and all obligations belonging
or due to them shall be vested in S2 Golf without further act or deed. Title to
any real estate or any interest therein vested in any Constituent Corporation
shall not revert or in any way be impaired by reason of such merger or
consolidation.
(b) At and after the Effective Time, the Surviving Corporation
shall be liable for and obligated to perform all the obligations of each
Constituent Corporation. All rights of creditors of each Constituent Corporation
are preserved unimpaired, and all liens upon the property of any Constituent
Corporation are preserved unimpaired on only the property affected by such liens
immediately prior to the Effective Time.
ARTICLE II
CAPITAL STOCK
2.01. CAPITAL STOCK. At the Effective Time:
(a) The issued and outstanding shares of common stock of
Acquisition Corp. shall be cancelled and all rights in respect thereto shall
cease, and no shares of the capital stock of the Surviving Corporation shall be
issued in exchange therefor; and
(b) Each issued and outstanding share of common stock of S2 Golf
shall be unchanged and each such share shall continue to represent one common
share of S2 Golf, as the Surviving Corporation.
ARTICLE III
CERTIFICATE OF INCORPORATION AND BY-LAWS
3.01. CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION.
At the Effective Time, the Amended and Second Restated Certificate of
Incorporation of S2 Golf (the "Certificate of Incorporation"), as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of S2 Golf, as the Surviving Corporation, to remain unchanged
until thereafter amended in accordance with applicable law and the provisions of
such Certificate of Incorporation.
3.02. BY-LAWS OF THE SURVIVING CORPORATION. At the Effective Time,
the By-laws of S2 Golf as in effect immediately prior to the Effective Time
shall be the By-laws of S2 Golf, as the Surviving Corporation, to remain
unchanged until thereafter amended in accordance with
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applicable law, the provisions of the Certificate of Incorporation of the
Surviving Corporation and such By-laws.
3.03. DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The
directors and officers of S2 Golf immediately prior to the Effective Time will
be the directors and officers, respectively, of the Surviving Corporation, in
each case until their respective successors are elected or appointed and
qualified.
ARTICLE IV
MISCELLANEOUS
4.01. AMENDMENT. This Agreement may be amended by the written
agreement of the Constituent Corporations, to the extent permitted by law, at
any time prior to the Effective Time.
4.02. TERMINATION. This Agreement may be terminated at any time prior
to the Effective Time by S2 Golf.
4.03. REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to retain most nearly the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
4.04. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Agreement.
4.05. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey.
[Signature Page Follows]
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IN WITNESS WHEREOF, S2 Golf and Acquisition Corp. have each executed
this Agreement as of the date first above written.
S2 GOLF INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Its: President
S2 GOLF ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its: President
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