Exhibit 2
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (hereinafter called the
"Agreement") is made and entered into as of May 27, 2000 between OLD BALDY
CORPORATION, a Wyoming corporation (the "Corporation") and OLD BALDY CLUB, a
Wyoming corporation (the "Club"), (Corporation and Club being hereinafter
collectively referred to as the "Constituent Corporations").
RECITALS
WHEREAS, the Corporation desires to merge with the Club and the Club
desires to merge with and into the Corporation, all upon the terms and subject
to the conditions of this Agreement.
WHEREAS, the Corporation and the Club desire to make certain
representations, warranties and agreements in connection with the merger of the
Club with and into the Corporation.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
The Merger; Closing; Effective Time
1.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.3) the Club shall be
merged with and into the Corporation and the separate corporate existence of the
Club shall thereupon cease (the "Merger"). The Corporation shall be the
surviving corporation in the Merger (sometimes hereinafter referred to as the
"Surviving Corporation") and shall continue to be governed by the laws of the
State of Wyoming and the separate corporate existence of the Corporation with
all its purposes, objects, rights, privileges, powers and franchises shall
continue unaffected by the Merger. The Merger shall have the effects specified
in the Wyoming Business Corporation Act (the "Wyoming Act") and the Wyoming
Nonprofit Corporation Act (the "Nonprofit Act").
1.2 The Closing. The closing of the Merger (the "Closing") shall
take place (i) at the Old Baldy Club, Saratoga, Wyoming at 10:00 a.m., local
time, on September 30, 2000 or as soon thereafter as practicable after the
transactions contemplated by this agreement have been duly approved by the
shareholders of the Corporation and the Members of the Club and each of the
other conditions set forth herein shall have been fulfilled or waived in
accordance therewith, or (ii) at such other time and place and/or on such other
date as the Corporation and the Club may agree. The date on which the Closing
occurs is hereafter referred to as the "Closing Date."
1.3 The Effective Time. At the close of business on the Closing
Date, or as soon thereafter as shall be possible, the parties hereto shall cause
Articles of Merger meeting the requirements of the Wyoming Act to be properly
executed and filed with the Secretary of State of Wyoming. The Merger shall
become effective at the close of business on September 30, 2000 (the "Effective
Time"), irrespective of the time at which the Articles of Merger are filed with
the Secretary of State of Wyoming in accordance with the Act.
1.4 Actions After the Effective Time. 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 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 or assets of either of the Constituent Corporations acquired
or to be acquired by the 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 authorized to execute and
deliver, in the name and on behalf of each of the Constituent Corporations or
otherwise, all such deeds, bills of sale, assignments and assurances and to take
and do, in the name and on behalf of each of the Constituent 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 or assets in the Surviving Corporation or otherwise to
carry out this Agreement.
ARTICLE II.
Articles of Incorporation and Bylaws of the Surviving Corporation
2.1 Articles of Incorporation. The Amended and Restated Articles of
Incorporation of the Corporation which are attached hereto as Exhibit A shall be
the Articles of Incorporation of the Surviving Corporation, until duly amended
in accordance with its terms and the Act.
2.2 Bylaws. The Bylaws, as amended, of the Corporation shall be the
Bylaws of the Surviving Corporation, until duly amended in accordance with their
terms and the Act.
ARTICLE III.
Directors and Officers of the Surviving Corporation
3.1 Directors and Officers. From and after the Effective Time, the
persons who are the directors and officers of the Surviving Corporation at the
Effective Time shall be, become or remain, as the case may be, directors and
officers of the Surviving Corporation, in each case until their successors have
been duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's Articles
of Incorporation and Bylaws, and the Act.
ARTICLE IV.
Conversion of Shares and Memberships in the Merger
4.1 Manner of Conversion. The manner of converting shares of the
Corporation and memberships of the Club in the Merger shall be as follows:
4.1.1 At the Effective Time, each share of the Common Stock, $1.00
par value (collectively, the "Corporation Shares"), of the Corporation issued
and outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without action on the part of the holder thereof, continue to be
outstanding and in full force and effect. At the Effective Time, all obligations
of the Club with respect to each outstanding membership of the Club (a
"Membership") shall, by virtue of the Merger and without any action on the part
of any holder thereof, be assumed by the Corporation; provided, that such
obligations and the associated rights
of the holder of each such membership shall be amended and modified as herein
set forth.. Each person who, immediately prior to the Effective Time, holds a
Membership shall receive the right to purchase, for the aggregate amount of
$12,000 (the "Purchase Price") thirty three (33) shares of the Corporation's
Class A Common Stock. In addition, immediately following the Effective Time, the
Corporation shall assign all rights and obligations acquired by it in the Merger
regarding each outstanding membership in the Club to New Club Corp., a Wyoming
corporation to be formed under the Wyoming Nonprofit Act, together with all
rights and responsibilities presently held by the Club concerning the operation
of the Old Baldy golf course and the other facilities which, immediately prior
to the Effective Time, are managed by the Club. Immediately following the
Effective Time, New Club Corp. will change its name to "Old Baldy Corporation".
Each holder of a membership in the Club will, therefore, automatically be
admitted as a member of New Club Corp., but may not exercise any rights and
privileges of membership unless and until such time as such holder has completed
his or her purchase of thirty three (33) shares of Class A common Stock issued
by the Corporation. To purchase such shares, the holder of a Membership shall
give written notice that such person has elected to make the purchase, which
notice shall specify the name, mailing address, and telephone number (including
area code) of such person and the notice shall be sent by first class United
States mail or by facsimile transmission to:
Mr. William Speer
General Manager
Old Baldy Club
P.O. Box 707
Saratoga, Wyoming 82331
Telephone: (307) 326-5222 or (888) 777-5303
Fax: (307) 326-5706
Such notice, and full payment of the Purchase Price, must be received on or
prior to March 31, 2001, in order to be effective. If such notice and full
payment of the Purchase Price are not received on or prior to March 31, 2001, it
shall be deemed that no election to purchase has been made, and the membership
interest of the holder in Old Baldy Club, together with all rights and
privileges of membership, shall terminate immediately.
4.2 Notice of Merger. As promptly as practicable after the Effective
Time, the Surviving Corporation shall cause to be mailed to each person who was,
immediately prior to the Effective Time, a holder of record of an issued and
outstanding Membership a letter of instructions for use in electing to purchase
shares of Class A common stock of the Corporation.
4.3 Transfer Books. At and after the Effective Time, transfers of
Memberships outstanding immediately prior to the Effective Time shall not be
made on the transfer books of the Surviving Corporation or New Club Corp. except
in accordance with the rules and regulations of New Club Corp. and only
following satisfaction of the requirement that each member of New Club Corp.
must own the requisite number of shares of Class A common stock of the
Corporation.
ARTICLE V.
Termination of Agreement
5.1 Grounds for Termination. This Agreement and the transactions
contemplated hereby may be terminated at any time prior to the Closing Date
either before or after the meetings of the shareholders of the Corporation and
the members of the Club::
(a) by mutual consent of the Corporation and the Club;
(b) by either of the Constituent Corporations if either shall
have determined in its sole discretion that the transactions contemplated by
this Agreement have become inadvisable or impracticable by reason of the
institution or threat by state, local or federal government authorities or by
any other person of material litigation or proceedings against either or both of
the parties (it being understood and agreed that a written request by
governmental authorities for information with respect to the proposed
transactions, which information could be used in connection with such litigation
or proceedings, may be deemed by either of the Constituent Corporations to be a
threat of material litigation or proceedings regardless of whether such request
is received before or after the date hereof);
(c) by either of the Constituent Corporations, if shareholders
of the Corporation who have properly given notice of the exercise of their
dissenter's rights shall represent five percent (5%) or more of the
Corporation's outstanding common stock immediately prior to the Effective time;
or
(d) by the Corporation if the Merger shall not have been
completed by December 31, 2000.
ARTICLE VI.
Meeting of Shareholders
Each of the Corporation and the Club will take all necessary steps
to call a meeting of its shareholders and members, as the case may be, to be
held as soon as practicable. The Board of Directors of each of the Corporation
and the Club will recommend to the shareholders of the Corporation and members
of the Club that they adopt the Merger and approve the terms of this Agreement.
ARTICLE VII.
Covenant to Operate in the Ordinary Course
The Corporation and the Club agree that subsequent to the date of
this Agreement and prior to the Closing Date each will operate its business only
in the ordinary course and in a normal manner consistent with past practice.
Prior to the Closing Date neither the Corporation nor the Club will encumber any
asset or enter into any transaction or make any commitment relating to its
assets or business, otherwise than in the ordinary course of its business
(consistent with prior practices), without first obtaining the written consent
of the other party.
ARTICLE VIII.
Miscellaneous
8.1 Brokers. Each party represents and warrants to the other that no
broker or finder has been employed by it with respect to this Agreement or the
transactions contemplated hereby.
8.2 Governing Law; Successors and Assigns; Counterparts; Entire
Agreement. This Agreement (a) shall be construed under and in accordance with
the laws of the State of Wyoming; (b) shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns;
(c) may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts shall have been signed by each of the parties and delivered to
the Corporation and the Club and (d) embodies the entire agreement and
understanding, and supersedes all prior agreements and understandings, between
the Corporation and the Club relating to the subject matter hereof.
8.3 Effects of Captions. The captions in this Agreement are included
for convenience only and should not in any way affect the interpretation or
construction of any of the provisions hereof.
8.4 Notices. Any notices or other communication required or
permitted hereunder shall be sufficiently given if sent by registered or
certified mail postage prepaid, addressed to such addresses as shall be
furnished in writing by either party to the other party. Any such notice or
communication shall be deemed to have been given as of the date so mailed.
8.5 Amendments. This Agreement may be amended in writing (signed by
all parties hereto) before or after the meeting of shareholders of the
Corporation and members of the Club at any time prior to the Closing Date with
respect to any of the terms contained herein, provided, however, that if amended
by such meetings of shareholders of the Corporation and members of the Club the
provisions for the conversion of shares and Memberships contained in ARTICLE IV
hereof shall not be amended without shareholder approval of the Corporation.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Plan of Reorganization as of the 27th day of May, 2000.
OLD BALDY CORPORATION
By /s/ Edward C. Joullian, III
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Edward C. Joullian, III, President
Attest:
/s/ Nancy Petry
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Nancy Petry, Secretary
OLD BALDY CLUB
By /s/ Edward C. Joullian, III
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Edward C. Joullian, III, President
Attest:
/s/ Nancy Petry
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Nancy Petry, Secretary