Exhibit 1
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of July 2, 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) 43,545,479 newly issued, fully paid and non-assessable
shares of Common Stock and (ii) the issuance of options to purchase 554,521
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 4,900,000 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
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: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
YANKEE CANDLE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
Exhibit A to
Reorganization Agreement
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT, dated as of July 2, 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 4,900,000 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: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
XXXXXXX X. XXXXXXXXX
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Exhibit B to
Reorganization Agreement
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 July 2, 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.
