EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 9, 2004 (the
"Agreement"), among North Atlantic Trading Company, Inc., a Delaware corporation
("NATC"), North Atlantic Holding Company, Inc., a Delaware corporation and a
direct, wholly-owned subsidiary of NATC ("Holdco"), and NATC Merger Sub, Inc., a
Delaware corporation and a direct, wholly-owned subsidiary of Holdco ("Merger
Sub").
WHEREAS, NATC is a corporation duly organized and existing under the
laws of the State of Delaware and is authorized to issue a total of 7,500,000
shares, consisting of: (i) 750,000 shares of voting common stock, par value
$0.01 per share ("NATC Voting Common Stock"); (ii) 750,000 shares of non-voting
common stock, par value $0.01 per share ("NATC Non-Voting Common Stock" and,
together with the NATC Voting Common Stock, the "NATC Common Stock"); and (iii)
6,000,000 shares of preferred stock, par value $0.01 per share ("NATC Preferred
Stock");
WHEREAS, Holdco is a corporation duly organized and existing under
the laws of the State of Delaware and is authorized to issue a total of
1,250,000 shares, consisting of (i) 1,000,000 shares of voting common stock, par
value $0.01 per share ("Holdco Common Stock"), of which ten (10) shares are
issued and outstanding; and (ii) 250,000 shares of preferred stock, par value
$0.01 per share ("Holdco Preferred Stock"), of which no shares are issued and
outstanding;
WHEREAS, as of the date hereof, NATC holds of record all of the
issued and outstanding shares of Holdco Common Stock;
WHEREAS, Merger Sub is a corporation duly organized and existing
under the laws of the State of Delaware and is authorized to issue 100 shares,
in a single class of common stock, par value $0.01 per share ("Merger Sub Common
Stock"), of which as of the date hereof, ten (10) shares are issued and
outstanding;
WHEREAS, as of the date hereof, Holdco holds of record all of the
issued and outstanding shares of Merger Sub Common Stock;
WHEREAS, the designations, rights, powers and preferences, and the
qualifications, limitations and restrictions thereof, of Holdco Common Stock are
the same as those of the NATC Voting Common Stock;
WHEREAS, Holdco and Merger Sub are newly formed corporations
organized for the purposes of participating in the transactions contemplated by
this Agreement;
WHEREAS, the respective Boards of Directors of NATC, Holdco and
Merger Sub have each approved and declared advisable this Agreement and the
merger of Merger Sub with and into NATC with NATC as the surviving corporation
(the "Merger") upon the terms and subject to the conditions set forth in this
Agreement, pursuant to which (i) each issued and outstanding share of NATC
Voting Common Stock shall be converted into the right to receive one share of
Holdco Common Stock; (ii) each issued and outstanding share of Merger Sub Common
Stock shall be converted in to one issued and outstanding share of common stock
of the Surviving Corporation (as defined below); and (iii) all of the issued and
outstanding shares of Holdco Common Stock held by NATC will be cancelled, so
that after the Merger all of the outstanding NATC Common Stock will be owned by
Holdco and all of the outstanding shares of Holdco Common Stock will be owned by
those stockholders who previously owned the outstanding shares of NATC Voting
Common Stock; and
WHEREAS for U.S. federal income tax purposes, it is intended that the
Merger shall qualify as a transaction under the provisions of Section 351 of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
The Merger
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SECTION 1.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "DGCL"), Merger Sub shall be merged with and into
NATC at the Effective Time (as defined in Section 1.03). Following the Merger,
the separate corporate existence of Merger Sub shall cease and NATC shall
continue as the surviving corporation and shall succeed to and assume all the
rights and obligations of Merger Sub in accordance with the DGCL. NATC as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation".
SECTION 1.02. Closing. The closing of the Merger (the "Closing") will
take place at a time and on a date to be specified by the parties (the "Closing
Date"), at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other time, date or place as agreed to in
writing by the parties hereto.
SECTION 1.03. Effective Time. Subject to the provisions of this
Agreement, a certificate of merger (the "Certificate of Merger") shall be duly
prepared, executed, acknowledged and filed with the Secretary of State of the
State of Delaware by NATC in accordance with the relevant provisions of the
DGCL. The Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State of Delaware, or at
such subsequent time as Merger Sub and NATC shall agree should be specified in
the Certificate of Merger (the time the Merger becomes effective being herein
referred to as the "Effective Time").
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SECTION 1.04. Effects of the Merger. The Merger shall have the
effects set forth in Section 259 of the DGCL.
SECTION 1.05. Subsequent Actions. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to continue in, vest, perfect or confirm of record or
otherwise in the Surviving Corporation its right, title or interest in, to or
under any of the rights, properties, privileges, franchises or assets of either
NATC or Merger Sub acquired or to be acquired by such Surviving Corporation as a
result of, or in connection with the Merger or otherwise to carry out this
Agreement, the officers and directors of the Surviving Corporation shall be
directed and authorized to execute and deliver, in the name and on behalf of
either of NATC or Merger Sub, all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf of each of such
corporations or otherwise, all such other actions and things as may be necessary
or desirable to vest, perfect or confirm any and all right, title and interest
in, to and under such rights, properties, privileges, franchises or assets in
the Surviving Corporation or otherwise to carry out this Agreement.
SECTION 1.06. Certificate of Incorporation and Bylaws of the
Surviving Corporation. (a) From and after the Effective Time, the Restated
Certificate of Incorporation of NATC, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
(b) From and after the Effective Time, the bylaws of NATC as in
effect immediately prior to the Effective Time shall be the bylaws of the
Surviving Corporation, until thereafter changed or amended as provided therein
or by applicable law.
SECTION 1.07. Directors of the Surviving Corporation. The directors
of NATC immediately prior to the Effective Time shall be the initial directors
of the Surviving Corporation until the earlier of their resignation or removal
or until their respective successors are duly elected and qualified, as the case
may be.
SECTION 1.08. Officers of the Surviving Corporation. The officers of
NATC immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the case
may be.
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ARTICLE II
Effect of the Merger on the Capital Stock of NATC
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and Merger Sub Common Stock
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SECTION 2.01. Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of NATC, Holdco or
Merger Sub or the holder of any of the following securities:
(a) Each share or fraction of a share of NATC Voting Common Stock
issued and outstanding immediately prior to the Effective Time shall be
converted into one, or an equal fraction of one, duly issued, fully paid and
nonassessable share of Holdco Common Stock.
(b) Each share of Merger Sub Common stock issued and outstanding
immediately prior to the Effective Time shall be converted into and thereafter
represent one duly issued, fully paid and nonassessable share of voting common
stock, par value $0.01 per share, of the Surviving Corporation.
(c) Each issued and outstanding share of Holdco Voting Common stock
owned by record by NATC immediately prior to the Effective Time shall be
cancelled and retired without payment of any consideration therefor and shall
cease to exist.
(d) Each issued and outstanding share of NATC Preferred Stock shall
remain unchanged and continue as one share of Preferred Stock of the Surviving
Corporation.
(e) From and after the Effective Time, holders of certificates
formerly evidencing NATC Voting Common Stock shall cease to have any rights as
stockholders of NATC, except as provided by law; provided, however, that such
holders shall have the rights set forth in Section 2.02 herein.
SECTION 2.02. Stock Certificates. At the Effective Time, the
designations, rights, powers and preferences, and qualifications, limitations
and restrictions thereof, of the Holdco Common Stock, will, in each case, be
identical with those of the NATC Voting Common Stock immediately prior to the
Effective Time. Accordingly, until thereafter surrendered for transfer or
exchange in the ordinary course, each outstanding certificate that, immediately
prior to the Effective Time, evidenced NATC Voting Common Stock shall, from the
Effective Time, be deemed and treated for all corporate purposes to evidence the
ownership of the same number of shares of Holdco Common Stock.
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ARTICLE III
Additional Agreements
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SECTION 3.01. Assumption of Option Plans and Warrants. NATC and
Holdco will take all actions necessary or desirable in order for Holdco to
assume all of the obligations of NATC pursuant to (i) the Warrant Agreement,
dated as of June 25, 1997, between NATC and United Trust Company of New York, as
warrant agent, (ii) the Warrant to Purchase Common Stock, granted in favor of
Guggenheim Investment Management, LLC by NATC, dated September 30, 2002, (iii)
the Warrant to Purchase Common Stock, granted in favor of Xxxxx X. Xxxxxxx
Company Limited by NATC, dated as of June 4, 2001, (iv) the 1997 Share Incentive
Plan and (v) the 2002 Share Incentive Plan.
ARTICLE IV
Termination, Amendment and Waiver
---------------------------------
SECTION 4.0l. Termination. This Agreement may be terminated and the
Merger contemplated hereby may be abandoned at any time prior to the Effective
Time.
SECTION 4.02. Effect of Termination. In the event of termination of
this Agreement as provided in Section 4.01, this Agreement shall forthwith
become void and have no effect, without any liability or obligation on the part
of NATC, Holdco or Merger Sub other than the provisions of this Section 4.02 and
Article V.
SECTION 4.03. Amendment. At any time prior to the Effective Time,
whether before or after approval of this Agreement by the stockholders of NATC,
Holdco or Merger Sub, this Agreement may be amended by the parties hereto at any
time by an instrument in writing; provided, however, after any such stockholder
approval, no amendment shall be made which by law requires the further approval
of such stockholders without such further approval.
SECTION 4.04. Waiver. At any time prior to the Effective Time, a
party may waive compliance by the other party with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
SECTION 4.05. Procedure for Termination, Amendment, Extension or
Waiver. A termination of this Agreement pursuant to Section 4.01, an amendment
of this Agreement pursuant to Section 4.03 or a waiver pursuant to Section 4.04
shall, in order to be effective, require in the case of NATC, Holdco and Merger
Sub, action by its Board of Directors or the duly authorized designee of its
Board of Directors to the extent permitted by law.
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ARTICLE V
General Provisions
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SECTION 5.01. Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred attached hereto) (a)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement and (b) is not intended to confer any rights or
remedies upon any person other than the parties.
SECTION 5.02. Transfer Taxes. All transfer, documentary and other
similar taxes (including any interest, penalties or additions with respect
thereto) and all filing, recording and other similar fees, in each case,
attributable to the transactions contemplated by this Agreement shall be paid by
NATC.
SECTION 5.03. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 5.04. Headings. The article and section headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 5.05. Counterparts. This Agreement may be executed in one or
more counterparts (including via facsimile), and each counterpart shall be
deemed to be an original, but all of which shall constitute one and the same
original.
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IN WITNESS WHEREOF, NATC, Holdco and Merger Sub have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
NORTH ATLANTIC TRADING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Financial Officer
NORTH ATLANTIC HOLDING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Financial Officer
NATC MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President
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