AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Plan") is entered into as of
the 20th day of April, 1999, by and among NACO Industries, Inc., a Utah
corporation ("Industries") and NACO Composites, Inc., a Utah corporation
("Composites").
Recitals:
A. Industries is a corporation originally incorporated under the laws
of the State of Kansas but that has been duly domesticated and is validly
existing and in good standing under the laws of the State of Utah.
B. Composites is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Utah.
C. The respective Boards of Directors of Industries and Composites
deem it advisable for the mutual benefit of Industries and Composites that
Composites be merged with and into Industries (the "Merger") upon the terms and
subject to the conditions set forth herein and in accordance with the Utah
Revised Business Corporation Act (the "Utah Act").
D. Industries and Composites and their respective Boards of Directors
have approved this Plan.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. The Merger. At the Effective Time (as hereinafter defined),
Composites shall be merged with and into Industries in accordance with the Utah
Act, and the separate corporate existence of Composites shall cease. (Industries
and Composites are sometimes referred to herein as the "Constituent
Corporations," and Industries, in its capacity as the corporation surviving the
Merger, is sometimes referred to herein as the "Surviving Corporation.")
2. Effective Time. The Merger shall become effective immediately upon
the filing of this Plan, together with appropriate Articles of Merger, with the
Utah Department of Commerce, Division of Corporations and Commercial Code (the
?Utah Division?), in accordance with the Utah Act. The date and time of such
filing are sometimes referred to herein as the "Effective Time."
3. Effect of the Merger. The Merger shall have the effects set forth
in Section 1106 of the Utah Act.
4. Articles of Incorporation. The Articles of Incorporation of
Industries as in effect immediately prior to the Effective Time shall continue
in full force and effect as the Articles of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law, and shall not be affected by the Merger.
5. Bylaws. The Bylaws of Industries as in effect immediately prior to
the Effective Time shall continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
6. Directors and Officers.
(a) At the Effective Time, the board of directors of the Surviving
Corporation shall consist of the members of the board of directors of
Industries immediately prior to the Merger, to serve thereafter in
accordance with the Bylaws of the Surviving Corporation and until their
respective successors shall have been duly elected and qualified in
accordance with such Bylaws and the laws of the State of Utah.
(b) At the Effective Time, the officers of the Surviving
Corporation shall be the officers of Industries immediately prior to the
Merger, with such officers to serve thereafter in accordance with the
Bylaws of the Surviving Corporation and until their respective successors
shall have been duly elected and qualified in accordance with such Bylaws
and the laws of the State of Utah.
7. Cancellation of Composites Shares. At the Effective Time, by virtue
of the Merger and without any action on the part of Composites, or the holders
thereof, each share of the common stock of Composites (the "Composites Common
Stock") issued and outstanding immediately prior to the Effective Time, shall be
cancelled and extinguished without consideration.
8. Industries Shares. All of the issued and outstanding shares of the
Common Stock, $.01 par value per share, (the "Industries Common Stock") and all
of the issued and outstanding shares of the Series 1 Class A 7% Cumulative
Convertible Preferred Stock, $3.00 par value, (the "Industries Preferred Stock")
of Industries shall remain issued and outstanding and shall not be converted,
exchanged or cancelled.
9. Shareholder Approval. Pursuant to the provisions of the Utah Act,
this Plan is not required to be submitted to the holders of the Composites
Common Stock for their approval. Pursuant to the provisions of the Utah Act,
this Plan is not required to be submitted to the holders of the Industries
Common Stock nor the holders of the Industries Preferred Stock for their
approval. This Plan and the Articles of Merger shall be executed and filed, and
all required acts shall be done in order to accomplish the Merger under the
provisions of the Utah Act and all other applicable laws and regulations of the
State of Utah.
10. Termination or Abandonment. This Plan may be terminated and the
Merger abandoned at any time prior to the Effective Time by the mutual written
consent of the respective Boards of Directors of the Constituent Corporations.
In the event of termination of this Plan as herein provided, Industries and
Composites and their respective Boards of Directors and shareholders shall not
be liable to each other or the directors or shareholders of each other.
PLAN-MERGER
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11. Other Provisions.
(a) Governing Law. This Plan shall be governed in all respects by
the laws of the State of Utah.
(b) Counterparts. This Plan may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Plan by their duly
authorized officers as of the date first above written.
NACO INDUSTRIES, INC.,
a Utah corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President
NACO COMPOSITES, INC.,
a Utah corporation
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
