PLAN OF REORGANIZATION AND AGREEMENT OF RECAPITALIZATION AND AGREEMENT OF MERGER
Exhibit 3.13(b)
PLAN OF REORGANIZATION AND AGREEMENT OF
RECAPITALIZATION AND AGREEMENT OF MERGER
THIS AGREEMENT (the “Agreement”), dated as of this 23rd day of December, 1996, is made and entered into by and between CENTRAL CONCRETE SUPPLY CO., INC., a California corporation (“Surviving Corporation”), CENTRAL TRANSPORT, INC., a California corporation (“Merging Corporation”) and the Shareholders of the Surviving Corporation named in Exhibit A attached hereto and incorporated herein by reference (the “Surviving Shareholders”) and the shareholders of the Merging Corporation named in Exhibit B, attached hereto and incorporated by reference herein (the “Merging Shareholders”). CENTRAL CONCRETE SUPPLY CO., INC. and CENTRAL TRANSPORT, INC. are the Constituent Corporations in this Agreement.
R E C I T A L S
WHEREAS, the Surviving Corporations’ Shareholders are the legal and beneficial owners of the number of issued and outstanding shares of the Surviving Corporation’s common stock set forth opposite the name of the Shareholders on Exhibit A hereto, constituting all of the outstanding shares of capital stock of the Surviving Corporation; and
WHEREAS, the Merging Corporation’s Shareholders are the legal and beneficial owners of the number of issued and outstanding shares of the Merging Corporation’s common stock set forth opposite the name of the Shareholders on Exhibit B hereto, constituting all of the outstanding shares of capital stock of the Merging Corporation; and
WHEREAS, the Surviving Corporation, is a California corporation with an authorized capitalization of One Hundred Thousand (100,000) common shares and one Hundred Thousand (100,000) preferred shares, of which Three Thousand Seven Hundred Thirty-Six (3,736) common shares and Six Thousand Eight Hundred Fifty-Three preferred shares are issued and outstanding at the date of this Agreement.
WHEREAS, the Merging Corporation is a California corporation with an authorized capitalization of One Hundred Thousand (100,000) common shares and One Hundred Thousand (100,000) preferred shares, of which One Thousand Two Hundred Fifty (1,250) common shares and Three Hundred Eight (308) preferred shares are issued and outstanding at the date of this Agreement.
WHEREAS, the parties desire to simultaneously accomplish a reorganization and recapitalization on the terms and conditions hereinafter set forth; and
WHEREAS, the parties desire to accomplish said reorganization and recapitalization in a manner such that the exchange will constitute a tax-free recapitalization of the Surviving Corporation and reorganization within the meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1984, as amended, as a statutory merger of the Merging Corporation into the Surviving Corporation.
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SECTION 1
STATEMENT OF MERGER AND RECAPITALIZATION REORGANIZATION
1.1 Statement of Merger. The Surviving Corporation and the Merging Corporation and their Shareholders agree that the Merging Corporation shall be merged into the Surviving Corporation on the following terms and conditions:
On the Effective Date, the Merging Corporation shall merge with and into the Surviving Corporation, which shall be the Surviving Constituent Corporation in the merger. The separate corporate existence, name, purposes, franchises, powers, rights and immunities of the Surviving Corporation shall continue unaffected and unimpaired by the merger. The corporate identity, existence, purpose, franchises, powers, rights and immunities of the Merging Corporation shall be merged into the Surviving Corporation, which shall be fully vested to them. The Surviving Corporation shall succeed, without other transfer, to all rights and liabilities of the Merging Corporation as if the Surviving Corporation had itself incurred them. All rights of creditors and all liens on the property of the Merging Corporation shall be preserved unimpaired, provided that any such liens on the property of the Merging Corporation shall be limited to the property they affected immediately before the Effective Date. If at any time any further assignments or other instruments are necessary to vest or confirm in the Surviving Corporation the title to any property of the two Constituent Corporations, those corporations and their proper officers and directors shall do all such acts and all things necessary to vest or confirm title to such property in the Surviving Corporation and otherwise to carry out the purposes of this Agreement.
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1.2 Manner of Converting Shares. The manner and basis of converting the shares of the Merging Corporation into shares of the Surviving Corporation shall be as follows:
(a) On the Effective Date (i) the Surviving Corporation shall be recapitalized such that the issued and outstanding shares of the Surviving Corporation’s voting preferred stock shall be converted into an aggregate of 442 shares of common stock and immediately thereafter, (ii) the issued and outstanding common shares of the Merging Corporation shall be converted into 374 shares of the common stock of the Surviving Corporation, and the issued and outstanding preferred shares of the Merging Corporation shall be converted into 20 shares of common stock of the Surviving Corporation (collectively, the “Exchange Shares”). Upon completion of such transactions the outstanding shares of the Surviving Corporation shall be solely common stock and shall be held as follows:
| Shareholder |
Shares of Common Stock | |
| Xxxxxxxx X. Xxxxxxxx |
80 | |
| Xxxxxx X. Xxxxxxxx |
180 | |
| Xxxxxx X. Xxxxxxxx |
180 | |
| Xxxxxx X. Xxxxxxxx |
180 | |
| Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated January 27, 1981, as amended, FBO Xxxxxx X. Xxxxxxxx |
1925 | |
| Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, Trustees under revocable Trust Agreement dated March 17, 1991, as amended, FBO Xxxxxxx X. Xxxxxxxx |
1925 | |
| Xxxxxx X. Xxxxxxxx as custodian for Xxxxxxx X. Xxxxxxxx |
60 | |
| Xxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxxx X. Xxxxxxxx, or any Successor Trustee(s) thereto, UTA dated October 4, 1979, as amended |
21 | |
| Xxxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxx X. Xxxxxxxx or any Successor Trustee(s) thereto, UTA dated October 4, 1979, as amended |
21 | |
(b) No fractional shares of common stock of the Surviving Corporation shall be issued to holders of shares of the Merging Corporation who would otherwise be entitled to receive a fraction of a share, but each such holder shall in lieu of a fraction of a share be paid an amount in cash equal to the value of that fraction, based on the fair market value of such common shares of the Surviving Corporation on the Effective Date as determined by the Board of Directors of the Surviving Corporation; provided, however, that if the fraction of a share that any such shareholder would otherwise be entitled to receive is less than one-half of one percent
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of the total shares that holder is entitled to receive, that holder shall not be entitled to receive the amount in cash, but the number of shares that the holder is entitled to receive shall be rounded off to the nearest whole share, and if such fraction is exactly one-half of one share, the number of shares shall be rounded up to the next higher whole share.
(c) Dividends accrued or deemed to be accrued on each of the common shares of the Surviving Corporation into which the common shares and preferred shares of the Merging Corporation are converted are hereby expressly waived by the Shareholder and such dividends shall not be assumed by the Surviving Corporation.
1.3 Bylaws. The bylaws of the Surviving Corporation, as in effect on the Effective Date, shall be and, except as later amended or repealed, remain its bylaws.
1.4 Amendment of Articles. The Articles of Incorporation of the Surviving Corporation shall be amended, effective on or before the Effective Date to delete the authorization of preferred shares and to authorize only one class of stock, namely, One Hundred Thousand (100,000) shares of common stock.
1.5 Directors and Officers. The Directors and officers of the Surviving Corporation, who are in office as of the Effective Date, from and after the Effective Date, until changed in accordance with applicable law and the Articles of Incorporation and bylaws of the Surviving Corporation, shall remain the same.
1.6 Effective Date. This executed Agreement and an officers’ Certificate of Merger of each of the Constituent Corporations shall be filed in the office of the California Secretary of State. The merger shall become effective on the date of such filing.
IN WITNESS WHEREOF, the Surviving and Merging Corporations, as duly authorized by their respective boards of directors, have caused this Agreement of Merger to be executed on the dates set forth below.
| CENTRAL CONCRETE SUPPLY CO., INC. a California corporation | ||||||||
| Date: 12/23/96 | By: | /s/ XXXXXXX X. XXXXXXXX | ||||||
| Xxxxxxx X. Xxxxxxxx, President | ||||||||
| Date: 12/23/96 | By: | /s/ XXXXXXX X. XXXXX | ||||||
| Xxxxxxx X. Xxxxx, Secretary | ||||||||
| SHAREHOLDERS: | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXXXX X. XXXXXXXX | ||||||
| Xxxxxxxx X. Xxxxxxxx | ||||||||
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| Date: 12/25/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx | ||||||||
| Date:12/23/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx | ||||||||
| Date: 12/26/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated January 27, 1981, as amended FBO Xxxxxx X. Xxxxxxxx | ||||||||
| Date: 12/23/96 | By: | /s/ XXXXXXX X. XXXXXXXX | ||||||
| Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated March 17, 1991, as amended, FBO Xxxxxxx X. Xxxxxxxx | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx as Custodian for Xxxxxxx X. Xxxxxxxx | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxxx X. Xxxxxxxx, or any Successor Trustee(s) thereto, UTA dated October 4, 1979, as amended | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXXX X. XXXXXXXX | ||||||
| Xxxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxx X. Xxxxxxxx, or any Successor Trustee(s) thereto, UTA dated October 4, 1979, as amended | ||||||||
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| CENTRAL TRANSPORT, INC., a California corporation | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXX XXXXXXXX | ||||||
| Xxxxxx Xxxxxxxx, President | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXXX X. XXXXX | ||||||
| Xxxxxxx X. Xxxxx, Secretary | ||||||||
| SHAREHOLDERS: | ||||||||
| Date: 12/23/96 | By: | /s/ XXXXXXX X. XXXXXXXX | ||||||
| Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated March 17, 1991, as amended, FBO Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated January 27, 1981, as amended, FBO Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx | ||||||||
| Date: 12/25/96 | By: | /s/ XXXXXX X. XXXXXXXX | ||||||
| Xxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxxx X. Xxxxxxxx, UTA October 4, 1979, as amended | ||||||||
| Date: 12/23/96 | By: | /s/ XXXXXXX X. XXXXXXXX | ||||||
| Xxxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxx X. Xxxxxxxx, UTA October 4, 1979, as amended | ||||||||
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EXHIBIT A
CENTRAL CONCRETE SUPPLY CO., INC.
SHAREHOLDERS
| Name |
Address |
Number of Common Shares |
Number of Preferred Shares | |||||
| 1. | Xxxxxxxx X. Xxxxxxxx | 120 | 931 | |||||
| 2. | Xxxxxx X. Xxxxxxxx | 20 | 931 | |||||
| 3. | Xxxxxx X. Xxxxxxxx | 120 | 931 | |||||
| 4. | Xxxxxx X. Xxxxxxxx | 120 | 931 | |||||
| 5. | Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated January 27, 1981, as amended, FBO Xxxxxx X. Xxxxxxxx |
1,678 | 931 | |||||
| 6. | Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated March 17, 1991, as amended, FBO Xxxxxxx X. Xxxxxxxx |
1,678 | 931 | |||||
| 7. | Xxxxxx X. Xxxxxxxx as custodian for Xxxxxxx X. Xxxxxxxx |
931 | ||||||
| 8. | Xxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxxx X. Xxxxxxxx, or any Successor Trustee(s) thereto, UTA dated October 4, 1979, as amended |
168 | ||||||
| 9. | Xxxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxx X. Xxxxxxxx or any Successor Trustee(s) thereto, UTA dated October 4, 1979, as amended |
168 | ||||||
| Total | 3,736 | 6,853 | ||||||
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EXHIBIT B
CENTRAL TRANSPORT, INC.
SHAREHOLDER’S
| Name |
Address |
Number of Common Shares |
Number of Preferred Shares | |||||
| 1. | Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated Match 17, 1991, as Amended, FBO Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx |
625 | ||||||
| 2. | Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, Trustees under Revocable Trust Agreement dated January 27, 1981, as Amended, FBO Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx |
625 | ||||||
| 3. | Xxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxxx X. Xxxxxxxx, UTA October 4, 1979, as amended |
154 | ||||||
| 4. | Xxxxxxx X. Xxxxxxxx, Trustee of the Xxxxx Xxxxxxx Xxxxxxxx 1979 Trust, Part A, FBO Xxxxxx X. Xxxxxxxx, UTA October 4, 1979, as amended |
154 | ||||||
| Total | 1,250 | 308 | ||||||
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