Plan and Agreement of Merger - Boston Celtics LP
PLAN AND AGREEMENT OF MERGER
OF
BCLP MERGER, INC.
(A DELAWARE CORPORATION)
AND
BOSTON CELTICS LIMITED PARTNERSHIP
(A DELAWARE LIMITED PARTNERSHIP)
THIS PLAN AND AGREEMENT OF MERGER (the "Agreement") entered into as of
___________, 1998 by BCLP Merger, Inc., a Delaware corporation ("MergerCo"), and
entered into as of _______________, 1998 by Boston Celtics Limited Partnership,
a Delaware limited partnership ("BCLP").
WHEREAS, MergerCo is a Delaware corporation, with its registered office
therein located at 9 East Loockerman Street, Dover, Delaware 19901; and
WHEREAS, MergerCo has an authorized capitalization consisting of 1,000
shares of Common Stock, par value of $.01 per share, all of which are issued and
outstanding and owned beneficially and of record by Boston Celtics Limited
Partnership II, a Delaware limited partnership ("BCLP II"); and
WHEREAS, BCLP is a Delaware limited partnership, with its registered office
therein located at 1029 Orange Street, City of Wilmington, County of New Castle;
and
WHEREAS, Section 263 of the Delaware General Corporation Law (the "DGCL")
permits a merger or consolidation of a Delaware corporation with a Delaware
limited partnership; and
WHEREAS, Section 17-211 of the Delaware Revised Uniform Limited Partnership
Act (the "Delaware Act") permits the merger or consolidation of a Delaware
limited partnership with a Delaware corporation; and
WHEREAS, the boards of directors of MergerCo and Celtics, Inc., BCLP's
general partner, deem it advisable for MergerCo to merge with and into BCLP (the
"Merger") in accordance with the DGCL, the Delaware Act and this Agreement and
have, by resolutions duly adopted, approved this Agreement and directed that it
be executed by the appropriate officers and submitted to a vote of the
stockholder of MergerCo and the general partner, limited partners and
unitholders of BCLP; and
WHEREAS, BCLP II, as sole stockholder of MergerCo, has approved the
Agreement;
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NOW, THEREFORE, in consideration of the premises, representations and
warranties herein contained, and of the mutual agreement of the parties hereto,
the parties to this Agreement agree that MergerCo will merge with and into BCLP
and that BCLP will be the surviving entity. The terms and conditions of the
Merger, the mode of carrying the Merger into effect, and the manner of
converting the shares of MergerCo and the partnership interests of BCLP will be
as follows:
ARTICLE I
THE MERGER
At the Effective Time (as herein defined), in accordance with the
provisions of this Agreement, the DGCL and the Delaware Act, MergerCo will be
merged with and into BCLP, whereupon the separate corporate existence of
MergerCo will cease and BCLP will continue as the surviving entity (the
"Surviving Entity").
Subject to and in accordance with the provisions of this Agreement,
MergerCo and BCLP will consummate the Merger by filing a certificate of merger
with the Secretary of State of the State of Delaware and making all other
filings or recordings required by the DGCL and the Delaware Act in connection
with the Merger. The Merger will become effective at such time as the
certificate of merger is duly filed with the Secretary of State of the State of
Delaware (the "Effective Time"). The Merger will have the effects set forth in
the DGCL and the Delaware Act. Without limiting the generality of the foregoing,
and subject thereto and to any other applicable laws, at the Effective Time all
the properties, rights, privileges, powers and franchises of each of MergerCo
and BCLP will vest in the Surviving Entity, and all debts, liabilities,
restrictions, disabilities and duties of each of MergerCo and BCLP will become
the debts, liabilities, restrictions, disabilities and duties of the Surviving
Entity.
ARTICLE II
TERMS OF CONVERSION OF UNITS
At the Effective Time:
(a) Each unit of BCLP issued and outstanding immediately prior to the
Effective Time, with respect to which BCLP shall have issued as a distribution
$20 in principal amount of 6% Subordinated Debentures due 2038 of BCLP (an
"Eligible Unit"), will thereupon, and without any action on the part of the
holder thereof, be converted into one validly issued unit of beneficial interest
in a limited partnership interest of BCLP II (a "BCLP II Unit").
(b) Each unit of BCLP held in treasury, and each unit of BCLP other than an
Eligible Unit, immediately prior to the Effective Time shall thereupon be
cancelled and retired and all rights in respect thereof shall cease.
(c) Each share of MergerCo Common Stock issued and outstanding immediately
prior to the Effective Time shall be converted into one validly issued unit of
beneficial interest in a limited partnership interest in the Surviving Entity.
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ARTICLE III
AGREEMENT OF LIMITED PARTNERSHIP
From and after the Effective Time, BCLP will be governed by the Amended and
Restated Agreement of Limited Partnership of BCLP then in effect.
ARTICLE IV
CERTIFICATES
Following the Effective Time, each holder of an outstanding certificate or
certificates theretofore representing units of BCLP may, but will not be
required to, surrender those certificates to BCLP II for cancellation, exchange
or transfer, and each such holder or transferee thereof will be entitled to
receive a certificate or certificates representing the same number of BCLP II
Units as the number of units of BCLP previously represented by the certificate
or certificates so surrendered. Until so surrendered or presented for
cancellation, exchange or transfer, each outstanding certificate that, before
the Effective Time, represented units of BCLP will be deemed and treated for all
corporate purposes to represent the ownership of the same number of BCLP II
Units as though surrender for cancellation, exchange or transfer thereof had
taken place. If any certificate representing BCLP II Units is to be issued in a
name other than that of the registered holder of the certificate formerly
representing units of BCLP presented for transfer, it will be a condition of
issuance that:
(a) the certificate so surrendered is properly endorsed or accompanied by a
document of transfer and is otherwise in proper form for transfer, and
(b) the person requesting issuance pays to BCLP II's transfer agent any
transfer or other taxes required by reason of issuance of certificates
representing BCLP II Units in a name other than that of the registered holder of
the certificate presented, or establishes to the satisfaction of BCLP II or its
registered agent that such taxes have been paid or are not applicable. The
transfer books for units of BCLP will be deemed to be closed at the Effective
Time, and no transfer of units of BCLP outstanding immediately before the
Effective Time will thereafter be made on the transfer books. After the
Effective Time, the holders of certificates representing units of BCLP
outstanding immediately before the Effective Time will cease to have any rights
with respect to units of beneficial interest in limited partnership interests in
the Surviving Entity and their sole rights will be with respect to the BCLP II
Units into which their units of BCLP are converted in the Merger.
ARTICLE V
CONDITIONS OF THE MERGER
Consummation of the Merger is subject to the satisfaction or waiver, where
permissible, prior to the Effective Time, of each of the following conditions:
(a) A majority in interest of the limited partners and unitholders of
BCLP, and a majority of the stockholders of MergerCo, have each approved
the Merger.
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(b) No statute, rule, regulation, executive order, decree, injunction
or other order has been enacted, entered, promulgated or enforced by any
court or governmental authority that is in effect and has the effect of
prohibiting the consummation of the Merger.
(c) All approvals and consents necessary or desirable, if any, in
connection with consummation of the Merger have been obtained.
(d) The BCLP II Units to be issued and to be reserved for issuance as
a result of the Merger shall have been approved for listing, upon official
notice of issuance, by the New York Stock Exchange.
(e) A Registration Statement on Form S-4 relating to the BCLP II Units
to be issued or reserved for issuance as a result of the Merger, has been
declared effective under the Securities Act of 1933, as amended, and is not
be the subject of any "stop order."
(f) A tax ruling, in form and substance acceptable to BCLP, has been
received from the Internal Revenue Service.
ARTICLE VI
AMENDMENT AND WAIVER
The parties hereto, by mutual consent, may amend, modify or supplement
this Agreement, or waive any condition set forth herein, in such manner as may
be agreed upon by them in writing, at any time before or after approval of this
Agreement by the limited partners and unitholders of BCLP, to the extent
permitted by the DGCL and the Delaware Act.
ARTICLE VII
MISCELLANEOUS
(a) This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. Neither this Agreement
nor any right, interest or obligation under this Agreement may be assigned,
in whole or in part, by operation of law or otherwise, without the prior
written consent of the other parties.
(b) This Agreement will be governed by and construed in accordance
with the substantive laws of the State of Delaware regardless of the laws
that might otherwise govern under principles of conflicts of laws
applicable thereto.
(c) Nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
(d) This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original, but all of which will constitute
one and the same agreement, and will become effective when one or more
counterparts have been signed by each of the parties and delivered to the
other parties.
(e) At any time before the Effective Time, this Agreement may be
terminated and the Merger may be abandoned or the time of consummation of
the Merger may be deferred for a reasonable time by the board of directors
of either MergerCo or Celtics, Inc.
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(f) From time to time, as and when required or requested by either
MergerCo or BCLP, as applicable, or its respective successors and assigns,
such deeds, assignments and other instruments, and there will be taken or
caused to be taken by it all such further and other action, as may be
appropriate or necessary to vest, perfect or confirm in the Surviving
Entity the title to and possession of all property, interests, assets,
rights, powers, franchises and authority of MergerCo and otherwise to carry
out the purposes of this Agreement, and the officers and directors of
MergerCo, BCLP and Celtics, Inc. are fully authorized to take any and all
such action and to execute and deliver any and all such deeds, assignments
and other instruments.
IN WITNESS WHEREOF, this Plan and Agreement of Merger is hereby executed
upon behalf of each of the consistent corporations parties thereto.
Dated: [Month] ___, 1998
BCLP MERGER, INC.
By: __________________________________
Richard G. Pond
Its: _______________________________
BOSTON CELTICS LIMITED PARTNERSHIP
By: ___________________________________
Celtics, Inc.
Its: General Partner
By:______________________________
Richard G. Pond
Its: Executive Vice President, Chief
Operating Officer, Treasurer and
Secretary
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