EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER, dated as of July 28, 1997 (this
"AGREEMENT") among Discovery Zone Children's Amusement Corp. (the "Company"), a
Delaware corporation and a wholly owned Subsidiary of Discovery Zone, Inc. (the
"Parent"), a Delaware corporation, the corporate subsidiaries of the Parent
listed on Schedule I hereto (collectively, the "CORPORATE SUBSIDIARIES") and the
partnership subsidiaries of the Parent listed on Schedule II hereto (the
"PARTNERSHIP SUBSIDIARIES" and, together with the Corporate Subsidiaries, the
"SUBSIDIARIES").
WHEREAS, on March 25, 1996, each of the Company, the Parent and the
Subsidiaries filed a petition for relief under Chapter 11 of Title 11, United
States Code, 11 U.S.C. Section 101, ET SEQ. (the "BANKRUPTCY CODE") in the
United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY
COURT").
WHEREAS, on July 18, 1997 the Bankruptcy Court entered the Order
Confirming Third Amended Joint Plan of Reorganization (the "Confirmation
Order"), a copy of which is attached hereto as Exhibit A.
WHEREAS, the Confirmation Order, INTER ALIA, confirmed the Third
Amended Plan of Reorganization Pursuant to 11 U.S.C. Section 1129 (the "PLAN")
and authorized that each of the Corporate Subsidiaries and the Partnership
Subsidiaries merge with and into the Company (the "MERGER"), on the terms and
subject to the conditions contained herein and in accordance with the General
Corporation Law of the State of Delaware, the Oregon Business Corporation Act,
the Massachusetts Business Corporation Law, the Connecticut Stock Corporation
Act, the Georgia Business Corporation Code, the Business Corporation Law of the
State of Missouri, the Business Corporation Law of the State of New York, the
Business Corporation Law of 1988 of the State of Pennsylvania, the Wisconsin
Business Corporation Law, the Illinois Business Corporation Act, the Washington
Business Corporation Act and the Delaware Limited Partnership Act (such
corporate statutes and the Delaware Limited Partnership Act being collectively
referred to herein as "APPLICABLE LAW"), and the Parent, as the sole stockholder
of each of the Corporate Subsidiaries, has approved by written consent the
Merger and this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and in order to set forth the terms and conditions of the Merger and the
mode of carrying the same into effect, the Company and each of the Subsidiaries
hereby agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER. At the Effective Time (as defined in
Section 1.2), each of the Subsidiaries shall be merged with and into the
Company, the separate corporate existence of each of the Subsidiaries shall
cease, and the Company shall continue as the surviving corporation (hereinafter
sometimes referred to as the "SURVIVING CORPORATION").
SECTION 1.2. EFFECTIVE TIME OF THE MERGER. The Merger shall become
effective immediately upon the simultaneous filing of a Certificate of Merger or
Articles of Merger relating to the Merger or this Agreement, as appropriate,
with each of the Secretary of State of the State of Delaware, the Secretary of
State of the State of Oregon, the Secretary of State of the Commonwealth of
Massachusetts, the Secretary of State of the State of Connecticut, the Secretary
of State of the State of Georgia, the Secretary of State of the State of
Missouri, the Department of State of the State of New York, the Department of
State of the State of Pennsylvania, the Secretary of State of the State of
Wisconsin, the Secretary of State of the State of Illinois and the Secretary of
State of the State of Washington, in each case in such form as is required by,
and executed in accordance with, the relevant provisions of Applicable Law (the
time of such simultaneous filing being the "EFFECTIVE TIME").
SECTION 1.3. EFFECT OF THE MERGER. At the Effective Time, the effect
of the Merger shall be as provided in the relevant provisions of Applicable Law.
The title to any real estate vested by deed or otherwise in the Company and each
of the Subsidiaries shall not revert or be in any way impaired by reason of the
Merger, but shall be vested in the Surviving Corporation. The Surviving
Corporation shall continue to be governed by the laws of the State of Delaware.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all property (real, personal and mixed), claims, rights,
intellectual property rights, privileges, powers, franchises and every other
interest of the Company and each of the Subsidiaries shall vest in the Surviving
Corporation, and all debts, obligations, restrictions, disabilities and duties
of the Company and each of the Subsidiaries shall become debts, obligations,
restrictions, disabilities and duties of the Surviving Corporation.
SECTION 1.4. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Amended
and Restated Certificate of Incorporation of the Company, as in effect on the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided by law or such Amended and
Restated Certificate of Incorporation. The Amended and Restated By-laws of the
Company as in effect on the Effective Time, shall be the By-laws of the
Surviving Corporation until thereafter amended as provided by law, the
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Amended and Restated Certificate of Incorporation of the Surviving Corporation
or such Amended and Restated By-laws.
SECTION 1.5. DIRECTORS AND OFFICERS. The directors of the Company on
the Effective Date shall be the initial directors of the Surviving Corporation,
each to hold office in accordance with the Amended and Restated Certificate of
Incorporation and Amended and Restated By-laws of the Surviving Corporation, and
the officers of the Company on the Effective Date shall be the initial officers
of the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
SECTION 1.6. CONVERSION OF SECURITIES. (A) (i) Each issued and
outstanding share of the Common Stock, $0.01 par value, of each of Beaverton
Fun Fitness, Inc., DZ of Georgia, Inc., DZ of Pennsylvania, Inc., DZ of
Wisconsin, Inc., Portland Fun Fitness, Inc., Vancouver Fun Fitness, Inc.,
DZGP, Inc., MetroZone, Inc. Leaps & Bounds, Inc., and Enchanted Castle II,
Inc., (ii) each issued and outstanding share of the Common Stock, no par
value, of each of DJM Management, Inc., DZ of Connecticut, Inc., DZ of
Massachusetts, Inc., DZ of New York, Inc. and Semborg Corp., (iii) each
issued and outstanding share of the Voting Stock, $1.00 par value, of DZ of
Missouri, Inc., (iv) each issued and outstanding share of the Non-Voting
Stock, $1.00 par value, of DZ of Missouri, Inc. and (v) each partnership
interest of each of Discovery Zone, L.P. and Tumble For Fun Limited
Partnership, shall, without any action on the part any party hereto, be
cancelled at the Effective Time and no payment shall be made with respect
thereto, (B) each issued and outstanding share of Common Stock, $0.001 par
value, of the Company shall remain outstanding following the Effective Time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SUBSIDIARIES
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF CORPORATE
SUBSIDIARIES. Each of the Corporate Subsidiaries represents and warrants that
(A) it is a corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, with all necessary
corporate power and authority to enter into and perform its obligations under
this Agreement and (B) this Agreement has been duly and validly authorized,
executed and delivered by such Corporate Subsidiary and is binding on and
enforceable against such Corporate Subsidiary in accordance with its terms.
SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF PARTNERSHIP
SUBSIDIARIES. Each of the Partnership Subsidiaries represents and warrants that
(A) it is a partnership duly organized, validly existing and in good standing
under the laws of Delaware, with all necessary partnership power and authority
to enter into and perform its obligations under this Agreement and (B) this
Agreement has been duly and validly authorized, executed and
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delivered by such Partnership Subsidiary and is binding on and enforceable
against such Partnership Subsidiary in accordance with its terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that (A) it is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with all necessary corporate power and authority to enter into and
perform its obligations under this Agreement and (B) this Agreement has been
duly and validly authorized, executed and delivered by the Company and is
binding on and enforceable against the Company in accordance with its terms.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The parties hereto each agree that all representations and warranties
contained herein shall not survive the Effective Time indefinitely.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.1. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and performed in that State, without regard to principles
of conflicts of law thereof.
SECTION 5.2. COUNTERPARTS. This Agreement may be executed in one or
more counterparts (including by facsimile transmission), and by different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their respective officers.
DISCOVERY ZONE CHILDREN'S
AMUSEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their respective officers.
DZ OF CONNECTICUT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
ENCHANTED CASTLE II, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
LEAPS & BOUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DZGP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
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METROZONE, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
TUMBLE FOR FUN LIMITED
PARTNERSHIP
By: Discovery Zone Children's
Amusement Corporation, its
general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DISCOVERY ZONE, L.P.
By: DZGP, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DZ OF GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
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SEMBORG CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DJM MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DZ OF MASSACHUSETTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DZ OF MISSOURI, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
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DZ OF NEW YORK, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
PORTLAND FUN FITNESS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
BEAVERTON FUN FITNESS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DZ OF PENNSYLVANIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
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VANCOUVER FUN FITNESS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
DZ OF WISCONSIN, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President,
Secretary &
Treasurer
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SCHEDULE I
CORPORATION JURISDICTION OF INCORPORATION
Beaverton Fun Fitness, Inc. Oregon
DJM Management, Inc. Massachusetts
DZ of Connecticut, Inc. Connecticut
DZ of Georgia, Inc. Georgia
DZ of Massachusetts, Inc. Massachusetts
DZ of Missouri, Inc. Missouri
DZ of New York, Inc. New York
DZ of Pennsylvania, Inc. Pennsylvania
DZ of Wisconsin, Inc. Wisconsin
Portland Fun Fitness, Inc. Oregon
Semborg Corp. Illinois
Vancouver Fun Fitness, Inc. Washington
DZGP, Inc. Delaware
Leaps & Bounds, Inc. Delaware
MetroZone, Inc. Delaware
Enchanted Castle II, Inc. Delaware
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SCHEDULE II
PARTNERSHIP JURISDICTION OF ORGANIZATION
Discovery Zone, L.P. Delaware
Tumble for Fun Limited Partnership Delaware
