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EXHIBIT 2.1
AGREEMENT OF REORGANIZATION
AND PLAN OF MERGER
This Agreement of Reorganization and Plan of Merger (this "Agreement")
dated this 7th day of May, 1999, by and between Skechers U.S.A., Inc., a
Delaware corporation ("Skechers-Delaware") and Skechers U.S.A., Inc., a
California corporation ("Skechers-California"), is made with respect to the
following facts.
A. Skechers-Delaware and Skechers-California desire that
Skechers-California merge with and into Skechers-Delaware, pursuant to
Delaware law, with Skechers-Delaware being the surviving entity (the
"Merger"), as set forth in the Registration Statement of
Skechers-Delaware on Form S-1, No. 333-60065, including all amendments
thereto (the "Registration Statement"), filed with the Securities and
Exchange Commission (the "SEC") pursuant to the Securities Act of 1933,
as amended (the "Act").
B. Section 252 of the General Corporation Law of the State of
Delaware,(the "DGCL") authorizes the merger of a Delaware corporation
and a foreign corporation. Sections 1100 and 1108 of the California
Corporations Code authorize the merger of California corporations into
foreign corporations.
C. Skechers-Delaware's Certificate of Incorporation and Bylaws
permit, and resolutions adopted by Skechers-Delaware's Board of
Directors and Skechers-California's Board of Directors authorize this
Agreement and the consummation of the Merger called for herein.
NOW THEREFORE, based upon the foregoing, and in consideration of the
mutual promises and covenants contained herein, the parties to this Agreement
agree as follows.
ARTICLE I - THE MERGER
1.01 The Merger; Surviving Corporation. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), Skechers-California shall be merged with and into
Skechers-Delaware, pursuant to Section 252 of the DGCL, and the separate
existence of Skechers-California shall cease. Skechers-Delaware shall be the
surviving entity (the "Surviving Corporation") and shall continue to be governed
by the DGCL.
1.02 Effective Time. In accordance with Sections 103(d) and 252 of the
DGCL, the Merger shall become effective (the "Effective Time") upon the filing
of a Certificate of Merger (the "Certificate of Merger") with the Secretary of
State of the State of Delaware, or at such later time, not later than five
business days thereafter, as may be specified in the Certificate of Merger. All
other filings or recordings required by Delaware and California law in
connection with the Merger shall also be made.
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1.03 Effect of the Merger. The Merger shall have the effects set forth
in section 259 and 260 of the DGCL.
ARTICLE II - THE SURVIVING CORPORATION
2.01 Name. The name of the surviving corporation shall be Skechers
U.S.A., Inc. (sometimes referred to as the "Surviving Corporation").
2.02 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation and Bylaws of Skechers-Delaware, as in effect immediately prior to
the Effective Time, shall be the Certificate of the Incorporation and Bylaws of
the Surviving Corporation unless and until amended in accordance with their
terms and applicable law.
2.03 Officers and Directors. The officers of Skechers-Delaware
immediately prior to the Effective Time shall continue as officers of the
Surviving Corporation and remain officers until their successors are duly
appointed or their resignation, removal or death. The directors of
Skechers-Delaware immediately prior to the Effective Time shall continue as
directors of the Surviving Corporation and shall remain directors until their
successors are duly elected and qualified or their prior resignation, removal or
death.
ARTICLE III - THE DISAPPEARING CORPORATION
3.01 Conversion of Common Stock Skechers-California. At the Effective
Time, each issued and outstanding share of the Common Stock of
Skechers-California shall be converted into 13,907.0748 shares of
Skechers-Delaware's Class B Common Stock, $.001 par value per share (the "Class
B Common Stock"). At the Effective Time, the one share of Skechers-Delaware
Common Stock owned by Skechers-California shall be canceled.
3.02 Skechers - California Options, Stock Purchase Rights, Convertible
Securities
(i) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Skechers - California under, and
continue, the option plans (including, without limitation, the 1998 Amended and
Restated Stock Option, Deferred Stock and Restricted Stock Plan and the Amended
and Restated 1998 Employee Stock Purchase Plan) and all other employee benefit
plans of Skechers - California. Each outstanding and unexercised option, other
right to purchase, or security convertible into or exercisable for, Skechers -
California Common Stock (a "Right") shall become, subject to the provisions in
paragraph (iii) hereof, an option, right to purchase or a security convertible
into the Surviving Corporation's Class A Common Stock, $.001 par value per Share
(the "Class A Common Stock"), on the basis of 13,907.0748 shares of the
Surviving Corporation's Class A Common Stock for each one share of Skechers -
California Common Stock issuable pursuant to any such Right, on the same terms
and condition and at an exercise price equal to the exercise price applicable to
any such Skechers - California Right at the Effective Date of the Merger divided
by 13,907.0748. This paragraph 3.2(i) shall not apply to
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currently issued and outstanding Skechers - California Common Stock. Such Common
Stock is subject to paragraph 3.01 hereof.
(ii) A number of shares of the Surviving Corporation's Class A
Common Stock shall be reserved for issuance upon the exercise of options, stock
purchase rights and convertible securities equal to the number of shares of
Skechers - California Common Stock so reserved immediately prior to the
Effective Date of the Merger.
(iii) The assumed Rights shall not entitle any holder thereof to
a fractional share upon exercise or conversion (unless the holder was entitled
to a fractional interest immediately prior to the Merger). Any fractional share
interests to which a holder of an assumed Right would otherwise be entitled upon
exercise or conversion shall be disregarded.
Notwithstanding the foregoing, with respect to options issued under the
Skechers - California 1998 Amended and Restated Stock Option, Deferred Stock and
Restricted Stock Plan that are assumed in the Merger, the number of shares of
Common Stock to which the holder would be otherwise entitled upon exercise of
each such assumed option following the Merger shall be rounded up or down to the
nearest whole number, as applicable, and the exercise price shall be rounded up
or down to the nearest whole cent, as applicable. In addition, no "additional
benefits" (within the meaning of Section 424(a)(2) of the Internal Revenue Code
of 1986, as amended) shall be accorded to the optionees pursuant to the
assumption of their options.
3.03 Issuance of Shares.
(i) Skechers-Delaware shall designate an exchange agent (the
"Exchange Agent") to act as such in connection with the issuance of certificates
representing Common Stock pursuant to this Agreement.
(ii) As soon as practicable after the Effective Time,
Skechers-Delaware shall cause the Exchange Agent to distribute to each owner of
Skechers-California certificates representing the number of shares of Common
Stock to which such owner is entitled pursuant to section 3.01 of this
Agreement.
3.04 Characterization of Merger. For federal income tax purposes, the
conversion of interests in Skechers-California pursuant to this Article III
shall be deemed a reorganization and mere change in place of organization
pursuant to section 368 (a)(1) (F) of the Internal Revenue Code of 1986.
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ARTICLE IV - TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
4.01 Transfer, Conveyance and Assumption. At the Effective Time,
Skechers-Delaware shall continue in existence as the Surviving Corporation, and
without further action on the part of Skechers-California or Skechers-Delaware,
succeed to and possess all the rights, privileges and powers of
Skechers-California, and all the assets and property of whatever kind and
character of Skechers-California shall vest in Skechers-Delaware without further
act or deed. Thereafter, Skechers-Delaware, as the Surviving Corporation, shall
be liable for all of the liabilities and obligations of Skechers-California, and
any claim or judgment against Skechers-California may be enforced against
Skechers-Delaware, as the Surviving Corporation, in accordance with Section 259
of the DGCL.
4.02 Further Assurances. If at any time Skechers-Delaware shall consider
or be advised that any further assignment, conveyance or assurance is necessary
or advisable to vest, perfect or confirm of record in it the title to any
property or right of Skechers-California, or otherwise to carry out the
provisions hereof, members of Skechers-California as of the Effective Time shall
execute and deliver any and all proper deeds, assignments and assurances, and do
all things necessary and proper to vest, perfect or convey title to such
property or right in Skechers-Delaware and otherwise to carry out the provisions
hereof.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
OF SKECHERS-CALIFORNIA
Skechers-California represents and warrants to Skechers-Delaware as
follows:
5.01 Validity of Actions. Skechers-California (i) is a corporation duly
formed, validly existing and in good standing under the laws of the State of
California, (ii) has full power and authority to enter into this Agreement and
to carry out all acts contemplated by it. This Agreement has been duly executed
and delivered on behalf of Skechers-California. Skechers-California has received
all necessary authorization to enter into this Agreement, and this Agreement is
a legal, valid and binding obligation of Skechers-California, enforceable
against Skechers-California in accordance with its terms. The execution and
delivery of this Agreement and consummation of the transactions contemplated by
it will not violate any provision of Skechers-California's Articles of
Incorporation or Bylaws, nor violate, conflict with or result in any breach of
any of the terms, provisions or conditions of, or constitute a default or cause
acceleration of, any indebtedness under any agreement or instrument to which
Skechers-California is a party or by which it or its assets may be bound, or
cause a breach of any applicable Federal or state law or governmental
regulation, or any applicable order, judgment, writ, award, injunction or decree
of any court or governmental instrumentality.
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ARTICLE VI - REPRESENTATIONS AND WARRANTIES
OF SKECHERS-DELAWARE
Skechers-Delaware represents and warrants to Skechers-California as
follows:
6.01. Validity of Actions. Skechers-Delaware (i) is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and (ii) has full power and authority to enter into this Agreement and to carry
out all acts contemplated by it. This Agreement has been duly executed and
delivered on behalf of Skechers-Delaware, and Skechers-Delaware has received all
necessary authorization. This Agreement is a legal, valid and binding obligation
of Skechers-Delaware, enforceable against Skechers-Delaware in accordance with
its terms. The execution and delivery of this Agreement and consummation of the
transactions contemplated by it will not violate any provision of the
Certificate of Incorporation or Bylaws of Skechers-Delaware nor violate,
conflict with or result in any breach of any of the terms, provisions or
conditions of, or constitute a default or cause acceleration of, any
indebtedness under any agreement or instrument to which Skechers- Delaware is a
party or by which it or its assets may be bound, or cause a breach of any
applicable federal or state law or regulation, or any applicable order,
judgment, writ, award, injunction or decree of any court or governmental
instrumentality.
6.02. Capital Stock of Skechers-Delaware. The authorized capital stock
of Skechers-Delaware consists of One Hundred Sixty Million (160,000,000) shares
of Common Stock, of which One Hundred Million (100,000,000) Shares are
designated as Class A Common Stock and Sixty Million (60,000,000) are designated
as Class B Common Stock, and Ten Million (10,000,000) shares of Preferred Stock.
The shares of Class B Common Stock of Skechers-Delaware to be delivered to the
shareholders of Skechers-California pursuant to this Agreement have been duly
and validly authorized, and when issued and delivered, will be fully paid and
nonassessable.
ARTICLE VII - FURTHER ACTIONS
7.01 Additional Documents. At the request of any party, each party will
execute and deliver any additional documents and perform in good faith such acts
as reasonably may be required in order to consummate the transactions
contemplated by this Agreement.
ARTICLE VIII - CONDITIONS TO THE MERGER
The obligation of Skechers-Delaware and of Skechers-California to
consummate the Merger shall be subject to compliance with or satisfaction of the
following conditions:
8.01 Bring Down. The representations and warranties set forth in this
Agreement shall be true and correct in all material respects at, and as of, the
Effective Time as if then made (except for those representations and warranties
made as of a given date, which shall continue to be true and correct as of such
given date) as of the Effective Time.
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8.02 No Statute, Rule or Regulation Affecting. At the Effective Time,
there shall be no statute, or regulation enacted or issued by the United States
or any State, or by a court, which prohibits or challenges the consummation of
the Merger.
8.03 Effectiveness of Registration Statement. As soon as possible
following the Effective Time, the Registration Statement shall have been
declared effective, no stop order suspending the effectiveness of the
Registration Statement shall have been issued, no proceedings for such purpose
shall have been initiated, and all necessary approvals under state securities or
blue sky laws shall have been received.
8.04 Satisfaction of Conditions. All other conditions to the Merger set
forth herein shall have been satisfied.
ARTICLE IX - TERMINATION; AMENDMENT; WAIVER
9.01 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, (i) by mutual
consent of the Board of Directors of Skechers-Delaware and the Board of
Directors of Skechers-California, or (ii) by action of the Board of Directors of
Skechers-Delaware or of the Board of Directors of Skechers-California in the
event that the Merger is not consummated prior to July 31, 1999, or such later
date as the parties shall mutually agree in writing.
9.02 Amendment. The parties hereto may, by written agreement, amend this
Agreement at any time prior to the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware, such amendment to be approved by
the Board of Directors of Skechers-California agreeing to such amendment with
Skechers-Delaware.
9.03 Waiver. At any time prior to the Effective Time, any party to this
Agreement may extend the time for the performance of any of the obligations or
other acts of any other party hereto, or waive compliance with any of the
agreements of any other party or with any condition to the obligations
hereunder, in each case only to the extent that such obligations, agreements and
conditions are intended for its benefit.
ARTICLE X - MISCELLANEOUS
10.01 Expenses. If the Merger becomes effective, all of the expenses
incurred in connection with the Merger shall be paid by Skechers-Delaware.
10.02 Notice. Except as otherwise specifically provided, any notices to
be given hereunder shall be in writing and shall be deemed given upon personal
delivery or upon mailing thereof, if mailed by certified mail, return receipt
requested, to the following addresses (or to such other address or addresses
shall be specified in any notice given):
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In the case of Skechers-Delaware:
Skechers U.S.A., Inc.
000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
In the case of Skechers-California:
Skechers U.S.A., Inc.
000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000
10.03 Non-Assignability. This Agreement shall not be assignable by any
of the parties hereto.
10.04 Entire Agreement. This Agreement contains the parties' entire
understanding and agreement with respect to its subject matter, and any and all
conflicting or inconsistent discussions, agreements, promises, representations
and statements, if any, between the parties or their representatives that are
not incorporated in this Agreement shall be null and void and are merged into
this Agreement.
10.05 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
conflicts of law principles.
10.06 Headings. The various section headings are inserted for purposes
of reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
10.07 Gender; Number. All references to gender or number in this
Agreement shall be deemed interchangeably to have a masculine, feminine, neuter,
singular or plural meaning, as the sense of the context requires.
10.08 Severability. The provisions of this Agreement shall be severable,
and any invalidity, unenforceability or illegality of any provision or
provisions of this Agreement shall not affect any other provision or provisions
of this Agreement, and each term and provision of this Agreement shall be
construed to be valid and enforceable to the full extent permitted by law.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by an officer duly authorized to do so, all as of the day and year
first above written.
SKECHERS U.S.A., INC., a California Corporation
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
SKECHERS U.S.A., INC., a Delaware Corporation
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Chief Executive Officer
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