AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement") dated this 13th day
of March 1998, by and between CLASSIC RESTAURANTS INTERNATIONAL, INC., a
Colorado corporation ("Classic") and CREATIVE RECYCLING TECHNOLOGIES,
INC., a Georgia corporation ("Creative").
WHEREAS, the Boards of Directors of Creative and Classic deem it
advisable and in the best interests of Creative and Classic that Classic
merger with and into Creative (the "Merger"); and
WHEREAS, the Boards of Directors of Creative and Classic have
approved and adopted this Agreement as a "plan of reorganization" within
the meaning of Section 368(a)(1) of the Internal Revenue Code of 1986, as
amended;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions, and conditions contained herein, and for other
good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto agree that Classic shall be
merged with and into Creative, the latter of which shall continue its
corporate existence and be the corporation surviving the Merger, upon
and subject to the following terms and conditions:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a)"Classic Stock" shall collectively mean the Classic Class A Common
Stock, the Classic Class B Common Stock, the Classic Series A Preferred
Stock, the Classic Series B Preferred Stock, the Classic Series C
Preferred Stock and the Classic Series D Preferred Stock.
(b)"Classic Class A Common Stock" shall mean the Class A Common Stock, no
par value, of Classic, as more fully described in the Articles of
Incorporation of Classic.
(c)"Classic Class B Common Stock" shall mean the Class B Common Stock, no
par value, of Classic, as more fully described in the Articles of
Incorporation of Classic.
(d)"Classic Series A Preferred Stock" shall mean the Series A Convertible
Preferred Stock of Classic, as more fully described in the Articles of
Incorporation of Classic.
(e)"Classic Series B Preferred Stock" shall mean the Series B Convertible
Preferred Stock of Classic, as more fully described in the Articles of
Incorporation of Classic.
(f)"Classic Series C Preferred Stock" shall mean the Series C Convertible
Preferred Stock of Classic, as more fully described in the Articles of
Incorporation of Classic.
(g)"Classic Series D Preferred Stock" shall mean the Series D Convertible
Preferred Stock of Classic, as more fully described in the Articles of
Incorporation of Classic.
(h)"Creative Stock" shall collectively mean the Creative Class A Common
Stock, the Creative Class B Common Stock, the Creative Series A Preferred
Stock, the Creative Series B Preferred Stock, the Creative Series C
Preferred Stock and the Creative Series D Preferred Stock.
(i)"Creative Class A Common Stock" shall mean the Class A Common Stock,
no par value, of Creative, as more fully described in the Articles of
Incorporation of Creative.
(j)"Creative Class B Common Stock" shall mean the Class B Common Stock,
no par value, of Creative, as more fully described in the Articles of
Incorporation of Creative.
(k)"Creative Series A Preferred Stock" shall mean the Series A
Convertible Preferred Stock of Creative, as more fully described in the
Articles of Incorporation of Creative.
(l)"Creative Series B Preferred Stock" shall mean the Series B
Convertible Preferred Stock of Creative, as more fully described in the
Articles of Incorporation of Creative.
(m)"Creative Series C Preferred Stock" shall mean the Series C
Convertible Preferred Stock of Creative, as more fully described in the
Articles of Incorporation of Creative.
(n)"Creative Series D Preferred Stock" shall mean the Series D
Convertible Preferred Stock of Creative, as more fully described in the
Articles of Incorporation of Creative.
(o)"Effective Date" shall mean the date on which Articles of Merger are
filed with the Secretaries of State of the States of Georgia and
Colorado, or such other date as is designated therein.
(p)"Record Date" shall mean the date(s) fixed by the Board of Directors
of Classic for determination of the shares entitled to notice of and to
vote at the Shareholder Meeting.
ARTICLE II
GENERAL TERMS AND PROVISIONS
Section 2.01 Effectiveness. At the Effective Date, Classic shall be
merged with and into Creative, which shall be the surviving corporation.
Creative shall issue new Creative Stock in exchange for all of the
outstanding Classic Stock on the terms provided herein.
Section 2.02 Directors and Officers of Creative. At the Effective
Date, the Board of Directors of Creative shall be five members, and shall
be composed of the existing members of the Board of Directors of Classic,
being Xxxxx Xxxxxx Xxxx, June Cuba, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, and
Xxxxxxxx Xxxxxx, who shall hold such positions until the next annual
meeting of the Board of Directors of Creative.
Section 2.03 Taking of Necessary Action. Creative and Classic shall
take all such actions as may be necessary or appropriate in order to
effectuate the transactions contemplated by this Agreement. If, at any
time after the Effective Date, any further action is necessary or
desirable to carry out the purposes of this Agreement or to vest Creative
with title to any or all of the properties, assets, rights, approvals,
immunities, and franchises of Classic, the officers and directors of
Classic and its subsidiaries, at the expense of Creative, shall take such
necessary or desirable action.
ARTICLE III
EXCHANGE OF SHARES
Section 3.01 Exchange Ratio. On the Effective Date, Creative shall
issue shares of its Creative Stock to all of the nondissenting holders of
Classic Stock in exchange for all of the issued and outstanding Classic
Stock at an exchange rate of:
one (1) share of the Creative Class A Common Stock for each one (1)
share of the Classic Class A Common Stock outstanding on the Effective
Date surrendered in exchange therefor;
one (1) share of the Creative Class B Common Stock for each one (1)
share of the Classic Class B Common Stock outstanding on the Effective
Date surrendered in exchange therefor;
one (1) share of the Creative Series A Preferred Stock for each one
(1) share of the Classic Series A Preferred Stock outstanding on the
Effective Date surrendered in exchange therefor;
one (1) share of the Creative Series B Preferred Stock for each one
(1) share of the Classic Series B Preferred Stock outstanding on the
Effective Date surrendered in exchange therefor;
one (1) share of the Creative Series C Preferred Stock for each one
(1) share of the Classic Series C Preferred Stock outstanding on the
Effective Date surrendered in exchange therefor;
one (1) share of the Creative Series D Preferred Stock for each one
(1) share of the Classic Series D Preferred Stock outstanding on the
Effective Date surrendered in exchange therefor.
Any debt securities of Classic which are convertible into shares of
Classic Stock shall be convertible into the type and number of shares of
Creative Stock equal to the number and type of Creative Stock which the
holder of the debt securities would receive if it converted its debt
securities into shares of Classic Stock immediately prior to the
Effective Date. There shall be no fractional shares issued. The number
of shares of Creative Stock to be issued in the merger shall be rounded
up to the nearest whole. The shares of Classic Stock, if any, held in the
treasury of Classic ("Treasury Shares") shall be cancelled and shall not
be exchanged or combined in accordance with the provisions of this
Section 3.01.
Section 3.02 Exchange of Certificates. As soon as practicable after
the Effective Date, each holder of a certificate for shares of Classic
Stock, upon surrender of same to United Stock Transfer, Inc., Denver,
Colorado (the "Transfer Agent"), shall be entitled to receive, in
exchange therefor, a certificate or certificates representing the number
of full shares of Creative Stock for and into which the shares of Classic
Stock, represented by the certificate or certificates so surrendered,
shall have been exchanged, as provided in Section 3.01 hereinabove. As
soon as practicable after the Effective Date, the Transfer Agent shall
send a notice and transmittal form to each holder of record of an
outstanding certificate which, immediately prior to the Effective Date,
evidenced shares of Classic Stock, advising such shareholder of the terms
of merger and combination effected by the Merger and the procedure for
surrendering to the Transfer Agent such certificate or certificates in
exchange for one or more certificates representing the full number of
shares of Creative Stock, as determined by Section 3.01 hereinabove.
Section 3.03 Unexchanged Certificates. Until surrendered in
accordance with Section 3.02 hereinabove, each outstanding certificate
which, prior to the Effective Date of the Merger, evidenced shares of
Classic Stock (except shares held by dissenting shareholders of Classic,
whose rights are discussed in Section 3.06 hereinbelow), for all
corporate purposes of Creative shall be deemed to evidence ownership of
the number of shares of Creative Stock for and into which shares of
Classic Stock represented thereby will have been exchanged and combined;
provided, however, that until each such outstanding certificate is
surrendered and exchanged, no dividend payable to the holders of record
of Creative Stock as of any date subsequent to the Effective Date of the
Merger shall be paid to the holder of such outstanding certificate which
shall not have been surrendered with respect thereto. After the Effective
Date of the Merger, there shall be no further registry of transfers of
Classic Stock on the books of Classic and, if a certificate representing
such shares or warrants is presented for transfer to Creative, it shall
be cancelled and exchanged for a certificate representing shares of
Creative Stock, as provided for herein.
Section 3.04 Certificates in Other Names. If any certificate
representing shares of Creative Stock is to be issued in a name other
than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition precedent to the issuance thereof
that the certificate so surrendered be properly endorsed and otherwise in
proper form for transfer, that the person requesting the exchange pay to
the Transfer Agent any transfer or other taxes required by reason of such
issuance, and that counsel to Creative approve such transfer.
Section 3.05 Stock Legends. Certificates representing shares of
Creative Stock shall bear a substantially identical legend to any legend
which is on the Classic Stock exchanged therefor under this Agreement.
Section 3.06 Dissenting Shareholders.
(a)Shareholders of Classic shall have the right to dissent from the
Merger provided in this Agreement and to obtain payment for their shares
of common stock in the event the Merger occurs, as permitted under
Section 0-000-000, et seq. of the Colorado Business Corporation Act.
(b)In accordance with the provisions of Colorado law and its Articles of
Incorporation, Classic shall call and hold a special meeting of
shareholders (the "Shareholder Meeting") for the purpose, in part, of
obtaining the approvals set forth in Section 4.01(a). The notice of the
Shareholder Meeting shall notify all shareholders of that they have or
may have a right to dissent and obtain payment for their shares by
complying with the terms of the applicable provisions of the Colorado
Business Corporation Act.
(c)Immediately upon the Effective Date or upon receipt of demand for
payment, if the Merger has occurred, Creative shall comply with the
requirements of Section 0-000-000, et seq. of the Colorado Business
Corporation Act.
ARTICLE IV
CONDITIONS PRECEDENT TO THE MERGER
Section 4.01 The obligations of the parties under this Agreement are
subject to the satisfaction of the following express conditions precedent
at or before the Effective Date:
(a)Shareholder Approvals. This Agreement and the transactions
contemplated hereby shall have received the requisite approval and
authorization of shareholders of Classic holding in the aggregate a
majority of the outstanding shares of Classic Class A Common Stock and
Classic Class B Common Stock.
(b)Compliance with Laws. All statutory requirements for the valid
consummation by it of the transactions contemplated by this Agreement
shall have been fulfilled.
(c)Blue Sky Filings. All Blue Sky filings and permits or orders required
to carry out the transactions contemplated by this Agreement shall have
been made and received containing no term or condition reasonably
unacceptable to it.
(d)Adequate Proceedings. All corporate and other proceedings in
connection with the transactions contemplated herein and all documents
incident thereto shall be reasonably satisfactory in form and substance
to it and its counsel.
(e)Limit on Dissenting Shares. Holders of not more than 10% of the
outstanding shares of Classic shall dissent from the Merger, with the
holders of such shares demanding, in connection therewith, their
respective dissenters' rights.
Section 4.02 Termination and Postponement. This Agreement and the
Merger contemplated hereby may be terminated, and the transactions
provided for herein abandoned, at any time prior to but not after the
Effective Date, sole discretion of Classic.
ARTICLE V
MISCELLANEOUS
Section 5.01 Survival. All agreements, representations, and
warranties made hereunder or in connection with the transactions
contemplated hereby shall survive the Effective Date and remain effective
in accordance with the terms hereof regardless of any investigation at
any time made by or on behalf of Creative or Classic.
Section 5.02 Assignment. This Agreement may not be assigned nor any
of the performances hereunder delegated by operation of law or otherwise
by any party hereto, and any purported assignment or delegation shall be
void.
Section 5.03 Headings. The article and section headings of this
Agreement are inserted for convenience of reference only and do not
constitute a part of this Agreement.
Section 5.04 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, successors, legal representatives, assigns, and transferors.
Section 5.05 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof. There are no representations, warranties, conditions, or other
obligations except as herein specifically provided. Any waiver,
amendment, or modification hereof must be in writing. A waiver in one
instance shall not be deemed to be a continuing waiver or waiver in any
other instance.
Section 5.06 Counterparts. This Agreement may be executed in
counterparts and each counterpart hereof shall be deemed to be an
original, but all such counterparts together shall constitute but one
agreement an original, but all such counterparts together shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement
on the day and year first above written.
CLASSIC RESTAURANTS INTERNATIONAL,
INC.
(SEAL) By: Xxxxx Xxxxxx Xxxx
Its: Pres./CEO
CREATIVE RECYCLING TECHNOLOGIES,
INC.
(SEAL) By: X X Xxxxxxx
Its: Pres/CEO
