AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 29, 1999, pursuant to
Section 253 of the Delaware General Corporation Law (the "DGCL") and Section
607.1104 of the Florida Business Corporation Act (the "FBCA"), between American
Metals Service, Inc., a Florida corporation having its principal place of
business at 000 Xxxx Xxxxxx, X.X. Xxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Company"), and American Metals Service, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company, having its principal place of business
at 000 Xxxx Xxxxxx, X.X. Xxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Surviving
Company").
W I T N E S S E T H:
--------------------
WHEREAS, the Company is a corporation duly organized and existing under the
laws of the State of Florida with total authorized capital stock of Six Million
(6,000,000) shares, $.01 par value per share (the "Company Common Stock").
WHEREAS, the Surviving Company is a corporation duly organized and existing
under the laws of the State of Delaware and will have, effective at the
Effective Date (as defined below) total authorized capital stock of Twelve
Million (12,000,000) shares, $.01 par value per share (the "Surviving Company
Common Stock").
WHEREAS, the respective Boards of Directors of the Company and the
Surviving Company have each adopted resolutions approving this Agreement and
Plan of Merger.
NOW THEREFORE, in consideration of the foregoing and the undertakings
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. MERGER. The Company shall be merged with and into the Surviving Company
pursuant to Section 253 of the DGCL and Section 607.1104 the FBCA. The Surviving
Company shall survive the merger herein contemplated and shall continue to be
governed by the laws of the State of Delaware. The separate corporate existence
of the Company shall cease forthwith upon the Effective Date. The merger of the
Company with and into the Surviving Company shall hereinafter be referred to as
the "Merger."
2. SHAREHOLDER APPROVAL. As soon as practicable after the execution of this
Agreement and Plan of Merger, the Company and the Surviving Company shall, if
necessary under the DGCL and FBCA, submit this Agreement and Plan of Merger to
their respective shareholders for approval.
3. EFFECTIVE DATE. The Merger shall be effective upon the filing of a
Certificate of Ownership and Merger with the Secretary of State of the State of
Delaware and Articles of Merger with the Secretary of State of the State of
Florida, which filings shall be made as soon as practicable after all required
shareholder approvals have been obtained. The time of such effectiveness shall
hereinafter be referred to as the "Effective Date."
4. COMMON STOCK OF THE COMPANY. On the Effective Date, by virtue of the
Merger and without any action on the part of the holders thereof, each share of
Company Common Stock shall cease to exist and shall be changed and converted
into one fully paid and non-assessable share of the Surviving Company Common
Stock.
5. STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Company
Common Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of the Surviving Company Common Stock into which the shares
of the Company represented by such certificates have been converted as herein
provided. The registered owner on the books and records of the Surviving Company
or its transfer agent of any such outstanding stock certificate shall, until
such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Company or its transfer agent, have and
be entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of the Surviving
Company evidenced by such outstanding certificate as above provided. On request,
the Surviving Company will issue new certificates to anyone who holds stock
certificates of the Company. Any request for new certificates will be subject to
normal stock transfer requirements including proper endorsement, signature
guarantee, if required, and payment of applicable taxes.
6. STOCK OPTION PLAN.
(a) On the Effective Date, if any options or rights granted under the
Company's 1983 incentive stock option plan remain outstanding,
then the Surviving Company shall assume the outstanding and
unexercised portions of such options and such options shall be
changed and converted into options to purchase Surviving Company
Common Stock, such that an option to purchase one (1) share of
the Company Common Stock shall be converted into an option to
purchase one (1) share of the Surviving Company Common Stock. No
other changes in the terms and conditions of such options shall
occur.
(b) One (1) share of the Surviving Company Common Stock shall be
reserved for issuance under the Company's 1983 stock option plan
from and after the Effective Date for each option to purchase one
(1) share of the Company Common Stock so reserved immediately
prior to the Effective Date.
(c) No "additional benefits" within the meaning of Section 424(a)(2)
of the Internal Revenue Code of 1986 (as amended) shall be
accorded to the option holders pursuant to the assumption of
their options.
7. EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving Company
shall assume all obligations of the Company under any and all employee benefit
plans in effect as of such date with respect to which employee rights or accrued
benefits are outstanding as of such date. On the Effective Date, the Surviving
Company shall adopt and continue in effect all such employee benefit plans upon
the same terms and conditions as were in effect immediately prior to the Merger.
8. SUCCESSION. On the Effective Date, the Surviving Company shall succeed
to all of the rights, privileges, debts, liabilities, powers and property of the
Company in the manner of and as more fully set forth in Section 259 of the DGCL.
Without limiting the foregoing, upon the Effective Date, all property, rights,
privileges, franchises, patents, trademarks, licenses, registrations, and other
assets of every kind and description of the Company shall be transferred to,
vested in and devolved upon the Surviving Company without further act or deed
and all property, rights, and every other interest of the Company and the
Surviving Company shall be as effectively the property of the Surviving Company
as they were of the Company and the Surviving Company, respectively. All rights
of creditors of the Company and all liens upon any property of the Company shall
be preserved unimpaired, and all debts, liabilities and duties of the Company
shall attach to the Surviving Company and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by it.
9. CERTIFICATE OF INCORPORATION AND BYLAWS. From and after the Effective
Date, the Certificate of Incorporation, substantially in the form of Exhibit A
hereto, and Bylaws, substantially in the form of Exhibit B hereto, of the
Surviving Company shall continue in full force and effect until further amended
in accordance with the provisions thereof and applicable law.
10. DIRECTORS AND OFFICERS. The members of the Board of Directors and the
officers of the Surviving Company on the Effective Date shall continue in office
until the expiration of their respective terms of office and until their
successors have been elected and qualified.
11. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Company or by its successors and assigns, there shall be executed and
delivered on behalf of the Company such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action as
shall be appropriate or necessary in order to best or perfect in or to confirm
of record or otherwise in the Surviving Company the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of the Company, and otherwise to carry out the purposes
of this Agreement and Plan of Merger, and the officers and directors of the
Company are fully authorized in the name and on behalf of the Company or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
12. ABANDONMENT. Notwithstanding the approval of this Merger Agreement by
the shareholders of the Company or by the sole stockholder of the Surviving
Company, at any time before the Effective Date, (a) this Merger Agreement may be
terminated and the Merger may be abandoned by the Board of Directors of either
the Company or the Surviving Company or both, including by reason of a
determination, in the sole discretion of either Board of Directors, that holders
of an unacceptable number of shares intend to exercise their statutory appraisal
rights pursuant to Section 607.1320 of the FBCA, or (b) the consummation of the
Merger may be deferred for a reasonable period of time if, in the opinion of the
Boards of Directors of the Company and the Surviving Company, such action would
be in the best interests of such corporations. In the event of termination of
this Merger Agreement, this Merger Agreement shall become void and of no effect
and there shall be no liability on the part of either corporation or their
respective Board of Directors or stockholders with respect thereto, except that
the Company shall pay all expenses incurred in connection with the Merger or in
respect of this Merger Agreement or relating thereto.
13. CONDITIONS TO MERGER. The obligation of the corporations to effect the
transactions contemplated hereby is subject to satisfaction of the following
conditions (any or all of which may be waived by either of the corporations in
its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of the
Company in accordance with applicable provisions of the FBCA;
(b) the Company, as sole stockholder of the Surviving Company, shall
have approved the Merger in accordance with the DGCL; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of the Company to be
material to the consummation of the Merger shall have been
obtained.
14. AMENDMENT. This Agreement and Plan of Merger may be amended by the
Boards of Directors of the Company and the Surviving Company at any time prior
to the Effective Date, provided that an amendment made subsequent to the
approval of this Agreement and Plan of Merger by either the shareholders of the
Company or the sole stockholder of the Surviving Company shall not (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such corporation, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Company to be effected by the
Merger or (3) alter or change any of the terms and conditions of this Agreement
and Plan of Merger if such alteration or change would adversely affect the
holders of any class or series of the stock of such corporation.
15. GOVERNING LAW. This Agreement and Plan of Merger and the legal
relations between the parties shall be governed by and construed in accordance
with the internal laws of the State of Delaware.
16. DISSENTERS' RIGHTS. Shareholders of the Company who dissent from the
Merger pursuant to Section 607.1320 of the FBCA may be entitled, if they comply
with the provisions of the FBCA regarding the rights of dissenting shareholders,
to be paid the fair value of their shares.
17. COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement and Plan of Merger, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
and Plan of Merger to be executed and attested on its behalf by its officers
hereunto duly authorized, as of the date first above written.
AMERICAN METALS SERVICE, INC.,
a Florida corporation
By: /s/ Xxxx X. Xxxxxxxx, Xx.
----------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
---------------------------------
Title: Vice President
---------------------------------
ATTESTED
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Assistant Secretary
---------------------------
AMERICAN METALS SERVICE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Van Herwarde
---------------------------------
Name: Xxxxxx X. Van Herwarde
---------------------------------
Title: President
---------------------------------
ATTESTED
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------
Title: Assistant Secretary
----------------------------
