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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Plan") is made and
entered effective as of the 17th day of April, 1998, by and among TVI
CORP., a Delaware corporation ("Seller"), RACING CORPORATION OF AMERICA, a
Delaware corporation (the "Company"), CHURCHILL DOWNS INCORPORATED, a
Kentucky corporation ("Buyer"), and RCA ACQUISITION COMPANY, a Kentucky
corporation ("RCA Acquisition").
RECITALS
1 Buyer and Seller are parties to a Stock Purchase Agreement
dated as of March 28, 1998 (the "Stock Purchase Agreement") under which
Buyer has agreed to purchase, and Seller has agreed to sell, subject to the
terms and conditions of the Stock Purchase Agreement, all 100 of the issued
and outstanding common shares, $.01 par value per share (the "Common
Shares") and all 185 of the issued and outstanding 6% cumulative preferred
shares, $.01 par value per share (the "Preferred Shares") (the Common
Shares and the Preferred Shares are, collectively, the "Shares") of the
capital stock of the Company.
2 Buyer and Seller desire to enter into this Plan to provide
for the acquisition of the Company and the Shares, pursuant to the Stock
Purchase Agreement, through the merger of RCA Acquisition, a wholly owned
subsidiary of Buyer, with and into the Company, in lieu of the direct
acquisition of the Shares by Buyer from Seller pursuant to the Stock
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and undertakings herein contained, the parties hereby
agree as follows:
ARTICLE 1
THE MERGER
A. THE MERGER. Upon the terms and subject to the conditions set
forth in the Stock Purchase Agreement and this Plan, and in accordance with
the Kentucky Revised Statutes, as amended ("KRS") and the Delaware General
Corporation Law ("DGCL") at the Effective Time (as hereinafter defined),
RCA Acquisition shall be merged with and into the Company in accordance
with the KRS and the DGCL (the "Merger"), whereupon the separate existence
of RCA Acquisition shall cease and the Company shall continue as the
surviving corporation (sometimes referred to herein as the "Surviving
Corporation").
B. ARTICLES AND CERTIFICATE OF MERGER. Upon the terms and subject to
conditions set forth in the Stock Purchase Agreement and this Plan,
Articles of Merger (the "Articles of Merger") and a Certificate of Merger
(the "Certificate of Merger") shall be duly prepared and executed by RCA
Acquisition and the Company, and
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thereafter delivered to the Secretary of State of the Commonwealth of Kentucky
and the Secretary of State of the State of Delaware for filing as provided
in the KRS and the DGCL. The Merger shall become effective upon filing with
the Kentucky Secretary of State and the Delaware Secretary of State or at
such time and date thereafter as is provided in the Articles of Merger and
the Certificate of Merger (the "Effective Time"). The date on which the
Effective Time occurs shall be the "Effective Date".
C. EFFECT OF FILING. At the Effective Time, the Merger shall have
the effects set forth in the applicable provisions of the KRS and the DGCL.
Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, all the properties, rights, privileges, powers, and
franchises of RCA Acquisition and the Company shall vest in the Surviving
Corporation without further act or deed, and all debts, liabilities and
duties of RCA Acquisition and the Company shall become the debts,
liabilities and duties of the Surviving Corporation.
ARTICLE 2
CONVERSION OF SHARES
A. CONVERSION OF SHARES. At the Effective Time, by virtue of the
Merger and without any action on the part of RCA Acquisition or the Company
or the stockholders of either of the foregoing entities:
[1] the holder of the Common Shares and the holder of the
Preferred Shares shall be entitled to receive aggregate consideration
of $22,000,000 composed of 200,000 shares of the common capital stock
of Buyer valued at $4,850,000 in the aggregate and $17,150,000 in
cash; and the Common Shares and the Preferred Shares shall be canceled
and extinguished; and
[2] the holder of the shares of common capital stock of RCA
Acquisition (the "RCA Acquisition Shares") shall be entitled to
receive one share of the common shares, $.01 par value, of the Company
and the RCA Acquisition Shares shall be canceled and extinguished.
B. CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION. The
Certificate of Incorporation of the Company, in effect immediately prior to
the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation.
C. BY-LAWS OF SURVIVING CORPORATION. The By-Laws of the Company, in
effect immediately prior to the Effective Time, shall be the By-Laws of the
Surviving Corporation.
D. DIRECTORS AND OFFICERS OF SURVIVING CORPORATION. From and after
the Effective Time: (i) the directors of RCA Acquisition immediately prior
to the Effective Time shall be the directors of the Surviving Corporation;
and (ii) the officers of RCA Acquisition
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immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, in each case, until their respective successors are duly elected
or appointed and qualify in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation or as otherwise provided
by applicable law.
ARTICLE 3
GENERAL PROVISIONS
A. LAW AND SECTION HEADINGS. This Plan shall be construed and
interpreted in accordance with the laws of the Commonwealth of Kentucky.
Section headings are used in this Plan for convenience only and are to be
ignored in the construction of the terms of this Plan.
B. MODIFICATIONS. The parties hereto may amend, modify or supplement
this Plan in such manner as may be agreed by them in writing.
C. AMENDMENT. This Plan shall be deemed to supersede and amend the
Stock Purchase Agreement to the extent inconsistent with this Plan.
Without limitation of the foregoing, this Plan and the effectiveness of the
Merger shall satisfy the obligations of the parties under the Stock
Purchase Agreement concerning the sale and purchase of the Shares and
concerning the delivery and payment of the Purchase Price (as defined in
the Stock Purchase Agreement). The Buyer and Seller hereby reaffirm and
ratify the Stock Purchase Agreement, as so amended, in its entirety.
IN WITNESS WHEREOF, the parties hereto have caused this Plan to
be executed by their duly authorized officers as of the date first above
written.
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"SELLER"
TVI CORP.
By: /S/ DANIEL HARRINGTON
Title: President
"BUYER"
CHURCHILL DOWNS INCORPORATED
By: /S/ ALEXANDER M. WALDROP
Title: Sr. Vice President
"COMPANY"
RACING CORPORATION OF AMERICA
By: /S/ DANIEL HARRINGTON
Title: President
"RCA"
RCA ACQUISITION COMPANY
By: /S/ ALEXANDER M. WALDROP
Title: Vice President