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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
ROUGE STEEL COMPANY
WITH
ROUGE MERGER SUB, INC.
This Agreement and Plan of Merger (this "Agreement"), dated as of July 20,
1997, is entered into by and among Rouge Steel Company, a Delaware
corporation ("Rouge Steel"), Rouge Merger Sub, Inc., a Delaware corporation
("Merger Sub") and Rouge Industries, Inc., a Delaware corporation ("Holdings").
WHEREAS, Rouge Steel has an authorized capitalization consisting of (i)
80,000,000 shares of class A common stock, par value $.01 per share ("Rouge
Steel Class A Common Stock"), of which 14,373,611 are issued and
outstanding as of July 29, 1997, (ii) 8,690,400 shares of class B common stock,
par value $.01 per share ("Rouge Class B Common Stock"), of which 7,562,400 are
issued and outstanding as of July 29, 1997, and (iii) 8,000,000 shares of
preferred stock, par value of $.01 per share, of which no shares are issued and
outstanding;
WHEREAS, Holdings has an authorized capitalization consisting of (i)
80,000,000 shares of class A common stock, par value $.01 per share ("Holdings
Class A Common Stock"), of which one (1) share is issued and outstanding and is
owned by Rouge Steel, (ii) 8,690,400 shares of class B common stock, par value
$.01 per share ("Holdings Class B Common Stock") of which no shares are issued
and outstanding and (iii) 8,000,000 shares of preferred stock, of which no
shares are issued and outstanding;
WHEREAS, Merger Sub has an authorized capitalization consisting of 1,000
shares of common stock, par value $.01 per share ("Merger Sub Common Stock"),
all of which are issued and outstanding and are owned by Holdings;
WHEREAS, Rouge Steel, Merger Sub and Holdings each desire to effect a
merger of Rouge Steel with and into Merger Sub with Rouge Steel surviving such
merger (the "Merger") pursuant to Section 251(g) of the Delaware General
Corporation Law (the "DGCL").
WHEREAS, the Board of Directors of each of Rouge Steel, Holdings and Merger
Sub has heretofore approved the Merger in accordance with the DGCL and upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto 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) and upon the terms and conditions set forth in this Agreement, Rouge Steel
shall be merged with Merger Sub in accordance with the DGCL, whereupon
the separate corporate existence of Merger Sub shall cease and Rouge Steel shall
be the surviving corporation in the Merger (the "Surviving Corporation") and
shall succeed to and assume all of the rights and obligations of Merger Sub in
accordance with the DGCL.
Section 1.2 Effective Time. The Merger shall become effective at 11:59
p.m. on the date of the filing of a certified copy of this Agreement with the
Secretary of State of the State of Delaware as required by the DGCL (the
"Effective Time").
Section 1.3 Effects of the Merger. The effects of the Merger shall be as
provided in the applicable provisions of Section 259 of the DGCL.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
Section 2.1 Effect on Capital Stock. (a) As of the Effective Time, by
virtue of the Merger and without any action on the part of Rouge Steel, Merger
Sub or Holdings or any holder of the capital stock of Rouge Steel, Merger Sub or
Holdings, the following shall occur:
(i) each issued and outstanding share of Rouge Steel Class A
Common Stock shall be converted into the right to receive one share of
Holdings Class A Common Stock;
(ii) each issued and outstanding share of Rouge Steel Class B
Common Stock shall be converted into the right to receive one share of
Holdings Class B Common Stock;
(iii) each issued and outstanding share of Merger Sub Common Stock
shall be converted into the right to receive one share of the common stock,
par value $.01 per share, of the Surviving Corporation; and
(iv) each share of Holdings Class A Common Stock issued and
outstanding prior to the Effective Time shall be canceled without any
consideration being paid therefor.
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(b) As of the Effective Time, all shares of Rouge Steel Class A
Common Stock and Rouge Steel Class B Common Stock issued and outstanding
immediately prior to the Effective Time shall no longer be outstanding and shall
be automatically canceled and retired and shall cease to exist, and each holder
of a certificate formerly representing shares of Rouge Steel Class A Common
Stock or Rouge Steel Class B Common Stock, as the case may be (in either case, a
"Rouge Steel Certificate"), shall, to the extent such Rouge Steel Certificate
represents such shares, cease to have any rights with respect thereto, except
the right to receive shares of Holdings Class A Common Stock or Holdings Class B
Common Stock, as applicable.
Section 2.2. Exchange Procedures. (a) As soon as practicable after the
Effective Time, each holder of an outstanding Rouge Steel Certificate shall,
upon surrender of such Rouge Steel Certificate to National City Bank, as
exchange agent (the "Exchange Agent"), be entitled to receive a certificate or
certificates representing the number of shares of Holdings Class A Common Stock
or Holdings Class B Common Stock, as applicable (in either case, a "Holdings
Certificate"), into which the shares of Rouge Steel Class A Common Stock or
Rouge Steel Class B Common Stock previously represented by such Rouge Steel
Certificate have been converted pursuant to this Agreement. The Exchange Agent
shall accept such Rouge Steel Certificates upon compliance with such reasonable
terms and conditions as the Exchange Agent may impose to effect an orderly
exchange thereof in accordance with normal exchange practices.
(b) If any Holdings Certificate is to be issued to a person or
entity other than the person or entity in whose name a surrendered Rouge Steel
Certificate is registered, it shall be a condition of such issuance that (i) the
Rouge Steel Certificate so surrendered shall be properly endorsed, with
signature guaranteed or otherwise in proper form for transfer and (ii) the
person or entity requesting such delivery shall have paid to Holdings or the
Exchange Agent any transfer or other taxes required by reason of such delivery
to a person or entity other than the registered holder of the Rouge Steel
Certificate surrendered or shall have established to the satisfaction of
Holdings or the Exchange Agent that such taxes either have been paid or are not
payable.
(c) Until surrendered and exchanged in accordance with this
Section 2.2, each Rouge Steel Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender and
exchange the shares of Holdings Class A Common Stock or Holdings Class B Common
Stock as provided for in this Agreement, without any interest thereon.
Section 2.3. Closing of Rouge Steel's Transfer Books. After the date on
which the Effective Time occurs, there shall be no further transfer on the books
of Rouge Steel or the Exchange Agent of any Rouge Steel Certificate and if any
such Rouge Steel Certificate is presented to the Surviving Corporation or the
Exchange Agent for transfer, such Rouge Steel Certificate shall be canceled and
exchanged for a Holdings Certificate in accordance with this Agreement.
Section 2.4. Stock Options. At the Effective Time, each outstanding
employee stock option to purchase Rouge Steel Class A Common Stock granted under
any employee stock option or compensation plan or arrangement of Rouge Steel
shall be converted into an option to purchase
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one (1) share of Holdings Class A Common Stock in accordance with the
provisions of such employee stock option or compensation plan or arrangement.
ARTICLE III
SURVIVING CORPORATION
Section 3.1. Certificate of Incorporation. At the Effective Time, the
Amended and Restated Certificate of Incorporation of Rouge Steel, as in effect
on the date thereof, shall be amended to read in its entirety as set forth in
Exhibit A and, as so amended, shall be the certificate of incorporation of the
Surviving Corporation after the Effective Time until thereafter changed or
amended as provided therein or by the DGCL.
Section 3.2. Bylaws. At the Effective Time, the Amended and Restated
Bylaws of Rouge Steel, as in effect on the date thereof, shall be the bylaws of
the Surviving Corporation after the Effective Time until thereafter changed or
amended as provided therein or by the DGCL.
Section 3.3. Directors. The directors of Rouge Steel immediately prior to
the Effective Time shall be, from and after the Effective Time, the directors
of the Surviving Corporation until their successors shall have been duly
elected or appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws.
Section 3.4. Officers. The officers of Rouge Steel immediately prior to
the Effective Time shall be, from and after the Effective Time, the officers of
the Surviving Corporation until their successors shall have been duly elected
or appointed and qualified or until their earlier death, resignation or removal
in accordance with the Surviving Corporation's Certificate of Incorporation and
Bylaws.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Tax Free Reorganization. The Merger is intended to constitute
a tax-free reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended, and this Agreement is intended to constitute
a plan of reorganization.
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Section 4.2. Assignment. Neither this Agreement nor any right, interest
or obligation hereunder may be assigned by any of the parties hereto and any
attempt to do shall be null and void.
Section 4.3. No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties hereto to confer third-party beneficiary rights upon any other person
or entity.
Section 4.4. Amendment. This agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
Section 4.5. Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No
waiver by any party hereto of any term or condition of this Agreement, in any
one or more instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement.
Section 4.6. Termination. At any time prior to the Effective Time, this
Agreement may be terminated and abandoned by the parties. In the event of any
termination of this Agreement, this Agreement shall forthwith become void and
there shall be no liability on the part of any of the parties hereto or their
respective officers or directors.
Section 4.7. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
Section 4.8. Severability. Should any clause, sentence, paragraph,
subsection, Section or Article of this Agreement be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement, and the part or parts
of this Agreement so held to be invalid, unenforceable or void will be deemed
to have been stricken herefrom by the parties hereto, and the remainder will
have the same force and effectiveness as if such stricken part or parts had
never been included herein.
Section 4.9. Entire Agreement. This Agreement sets forth all of the
promises, agreements, conditions, understandings, warranties and
representations among the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings among the parties hereto, whether written, oral or otherwise.
There are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, among the parties hereto
concerning the subject matter hereof except as set forth herein.
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Section 4.10. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
Section 4.11. Headings. The headings in the Articles and Sections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part thereof.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
ATTEST: ROUGE STEEL COMPANY
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Secretary Name: XXXXXXX X. XXXXXXXXXX
Title: V.P. EMPLOYEE RELATIONS
AND PUBLIC AFFAIRS
ATTEST: ROUGE INDUSTRIES, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
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Secretary Name: XXXX X. XXXXXXXXXXX
Title: VICE PRESIDENT & CFO
ATTEST: ROUGE MERGER SUB, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxxxx
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Secretary Name: XXXX X. XXXXXXXXXX
Title: PRESIDENT
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