AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (hereinafter, this "AGREEMENT") dated February
28, 1996 by and among Proler Merger, Inc., a Delaware corporation ("PROLER
MERGER"), Proler International Corp., a Delaware corporation ("PROLER
INTERNATIONAL"), and Proler Successor, Inc., a Delaware corporation ("PROLER
SUCCESSOR");
W I T N E S S E T H:
WHEREAS, Proler International wishes to reorganize its corporate
structure into a "holding company" structure consisting of a publicly-traded
holding company and wholly-owned direct and indirect subsidiaries of such
holding company; and
WHEREAS, in connection with this reorganization: (i) Proler
International has formed Proler Successor, a Delaware corporation, as a direct
wholly-owned subsidiary of Proler International; (ii) Proler Successor has
formed Proler Steel, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Proler Successor ("PROLER STEEL"); and (iii) Proler Steel has
formed Proler Merger, a Delaware corporation and a direct wholly-owned
subsidiary of Proler Steel; and
WHEREAS, Proler International intends to merge with Proler Merger
pursuant to ss.251(g) of the Delaware General Corporation Law (the "DGCL"), with
Proler International as the survivor of such merger, and with stockholders of
Proler International receiving shares of Proler Successor in exchange for their
shares in Proler International; and
WHEREAS, as a result of such merger (hereinafter, the "MERGER"), Proler
Successor would become a publicly traded "holding company", and Proler
International would become a wholly-owned indirect subsidiary of Proler
Successor;
NOW, THEREFORE, in consideration and furtherance of the foregoing, the
parties hereto agree as follows:
ARTICLE I.
THE MERGER
1.1 MERGER OF PROLER MERGER WITH PROLER INTERNATIONAL. Pursuant to
ss.251(g) of the DGCL, and in accordance with and subject to the terms and
conditions of this Agreement, at the Effective Time (as hereinafter defined) the
following shall be deemed to occur simultaneously:
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(a) Proler International shall merge with Proler Merger, with
Proler International to be the surviving corporation of the
Merger (the "SURVIVING CORPORATION"), such that as a result of
the Merger, Proler International shall become an indirect
wholly-owned subsidiary of Proler Successor;
(b) In connection with the Merger, the name of the Surviving
Corporation shall become "JOINT VENTURE OPERATIONS, INC.";
(c) The stockholders of Proler International shall receive, in the
manner set forth in ARTICLE IV, shares of capital stock of
Proler Successor in exchange for their shares of capital stock
of Proler International, and as a result of such exchange
shall become stockholders of Proler Successor (hereinafter
referred to as the "HOLDING COMPANY");
(d) In connection with the Merger, the Certificate of
Incorporation of Holding Company shall be amended to change
the name of the Holding Company to "PROLER INTERNATIONAL
CORP.";
(e) The separate existence of Proler Merger as a Delaware
corporation shall terminate, and at that time and to the
fullest extent provided under the laws of the State of
Delaware: (i) the Surviving Corporation shall, without further
act or deed, possess all of the rights, privileges, powers,
and franchises of public and private nature, and be subject to
all of the restrictions, disabilities and duties of Proler
Merger; (ii) the Surviving Corporation shall, without further
act or deed, possess all property, real, personal and mixed,
and all debts of Proler Merger on whatever account; (iii) all
property, rights, privileges, powers and franchises, and all
and every other interest of Proler Merger shall be the
property of the Surviving Corporation; (iv) all rights of
creditors and all liens upon any property of Proler Merger
shall be preserved unimpaired, and all debts, liabilities, and
duties of Proler Merger shall attach to the Surviving
Corporation and may be enforced against it to the same extent
as if such debts, liabilities and duties had been incurred or
contracted by it; and (v) the Merger shall have all such other
effects as set forth by the DGCL.
(f) Proler Steel, the sole stockholder of Proler Merger
immediately prior to the Merger, will receive, in the manner
set forth in SECTION 4.4, capital stock of the Surviving
Corporation in exchange for the capital stock of Proler Merger
held by it; and
(g) The shares of Holding Company held by the Surviving
Corporation shall be canceled without payment of any
consideration for such cancellation.
1.2 EFFECTIVE TIME. The Merger shall be effective for all
purposes at the time (the "EFFECTIVE TIME") (i) when all conditions precedent
to the Merger set forth in SECTIONS 3.1 and
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3.2 have been satisfied and (ii) when the Secretary of Proler International
shall have filed this Agreement certified in the manner required by ss.103 of
the DGCL, or a Certificate of Merger with respect thereto, with the Secretary of
State of the State of Delaware.
ARTICLE II.
THE CONSTITUENT CORPORATIONS AND THE HOLDING COMPANY
2.1 PROLER INTERNATIONAL.
(a) ORGANIZATION. Proler International is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware.
(b) CAPITALIZATION OF PROLER INTERNATIONAL. Proler International
has authorized capital consisting of:
(i) 15,000,000 shares of Common Stock, $1.00 per share
par value; and
(ii) 500,000 shares of preferred stock, $1.00 per share
par value, 50,000 shares of which have been
designated as Series A Junior Participating Preferred
Stock.
(c) STOCK OPTIONS AND PLANS. Proler International has entered
into, adopted, or is otherwise subject to certain agreements
and arrangements, including stock grants, options, and rights,
and compensation plans and agreements, pursuant to which it is
or may be obligated to issue additional shares of its capital
stock, including but not limited to the following: (i) the
1988 Stock Option Plan; (ii) the 1994 Non-Employee Director
Stock Option Plan; and (iii) the 1993 Incentive Compensation
Plan; each of which permits the merger and the transactions
contemplated by SECTION 4.3. Copies of all of such agreements
and arrangements have been provided to Holding Company.
(d) RIGHTS AGREEMENT. Pursuant to a Rights Agreement dated as of
September 26, 1988, Proler International has issued and
outstanding rights to purchase shares of Proler
International's Series A Junior Participating Preferred Stock.
Each issued and outstanding share of Common Stock of Proler
International is entitled to one- third of one right to
purchase one-one hundredth of one share of Series A Junior
Participating Preferred Stock of Proler International (each
one-third of one right referred to herein as an "EXISTING
STOCK RIGHT"). As of the date hereof, each Existing Stock
Right is represented by the outstanding share of Common Stock
in respect of which the Existing Stock Right was issued,
cannot be transferred separately from the associated share of
Proler International Common Stock, and is automatically
transferred upon transfer of the associated share of Proler
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International Common Stock. A copy of the Rights Agreement has
been provided to Holding Company.
2.2 PROLER MERGER.
(a) ORGANIZATION. Proler Merger is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
(b) CAPITALIZATION OF PROLER MERGER. Proler Merger has authorized
capital consisting of 1,000 shares of Common Stock, $.01 per
share par value, 1,000 shares of which have been issued and
are outstanding. Proler Merger has no options, warrants, or
other rights to purchase or convert any shares of its Common
Stock pursuant to which it is obligated to issue or sell
additional shares of its Common Stock.
(c) OWNERSHIP OF CAPITAL STOCK OF PROLER MERGER. All of the issued
and outstanding shares of Common Stock of Proler Merger are
owned by Proler Steel, a Delaware corporation and wholly-owned
direct subsidiary of Holding Company.
2.3 HOLDING COMPANY
(a) ORGANIZATION. Holding Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware. The Certificate of Incorporation and Bylaws
of Holding Company are, and immediately prior to the Merger
will be, identical to the Restated Certificate of
Incorporation and Restated Bylaws of Proler International as
in effect immediately prior to the Merger, except for such
variations as are specifically permitted pursuant to ss.251(g)
of the DGCL.
(b) CAPITALIZATION OF HOLDING COMPANY. Holding Company has
authorized capital consisting of:
(i) 15,000,000 shares of Common Stock, $1.00 per share
par value, 1,000 of which shares are issued and
outstanding; and
(ii) 500,000 shares of preferred stock, $1.00 per share
par value, of which 50,000 shares have been
designated as Series A Junior Participating Preferred
Stock, and none of which shares of Series A Junior
Participating Preferred Stock are issued and
outstanding.
The Common Stock and the Preferred Stock of Holding Company
have the same designations, rights, powers, preferences, and
the same qualifications, limitations and restrictions, as the
Common Stock and the Preferred Stock of Proler International.
Holding Company has no options, warrants, or other rights to
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purchase or convert any shares of its Common Stock pursuant to
which it is obligated to issue or sell additional shares of
its Common Stock.
(c) RIGHTS AGREEMENT. Prior to the Effective Time, Holding Company
will adopt a Rights Agreement pursuant to which rights to
purchase shares of Holding Company's Series A Junior
Participating Preferred Stock may be issued to holders of
Holding Company's Common Stock. The substantive terms and
provisions of Holding Company's Rights Agreement will be
identical to the terms and provisions of Proler
International's Rights Agreement.
(d) OWNERSHIP OF CAPITAL STOCK OF HOLDING COMPANY. All of the
issued and outstanding shares of Common Stock of Holding
Company are owned by Proler International. No rights to have
been issued pursuant to Holding Company's Rights Agreement as
of the date hereof.
ARTICLE III.
CONDITIONS PRECEDENT TO MERGER; TERMINATION OF AGREEMENT
3.1 ACTION BY DIRECTORS. This Agreement shall be submitted for approval
by the respective Boards of Directors of each of Proler Merger and Proler
International as required by ss.251(b) of the DGCL, and by the Board of
Directors of the Holding Company. As required by ss.251(g) of the DGCL, any
approval of the Merger by the Board of Directors of Proler International shall
include a determination by the Board of Directors of Proler International that
the stockholders of Proler International shall not recognize a gain or loss for
United States federal income tax purposes as a result of the Merger.
3.2 ACTION BY STOCKHOLDERS. This Agreement shall be submitted for
approval to the sole stockholder of Proler Merger as required by ss.251(c) of
the DGCL. Pursuant to ss.251(g) of the DGCL, this Agreement is not required to
be approved by, and shall not be submitted for approval to, the stockholders of
Proler International or of Holding Company.
3.3 FILING OF CERTIFICATE. Upon satisfaction of all conditions
precedent set forth in SECTIONS 3.2 and 3.3, the Secretary of Proler
International Corp. shall certify this Agreement in the manner required by
ss.103 of the DGCL and shall file this Agreement as so certified, or shall file
a Certificate of Merger with respect thereto, with the Secretary of State of the
State of Delaware.
3.4 EXPENSES. Proler International shall bear all expenses associated
with the consummation of this Merger.
3.5 TERMINATION. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger abandoned by Proler International by
appropriate resolution of Proler International's Board of Directors.
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ARTICLE IV.
CONVERSION OF SHARES OF CONSTITUENT CORPORATIONS
4.1 CONVERSION OF OUTSTANDING SHARES OF COMMON STOCK OF PROLER
INTERNATIONAL. At the Effective Time, each share or fraction of a share of
Common Stock of Proler International that is outstanding immediately prior to
the Effective Time shall, without further act or deed by Proler International or
its stockholders, be converted into and exchanged for a share or equal fraction
of a share of Common Stock of Holding Company. Shares of Common Stock of Holding
Company into which shares of Common Stock of Proler International are so
converted shall be represented by stock certificates previously representing
shares of Common Stock of Proler International.
4.2 REDEMPTION OF STOCK RIGHTS OF PROLER INTERNATIONAL; DISTRIBUTION OF
STOCK RIGHTS OF HOLDING COMPANY. At the Effective Time, each Existing Stock
Right shall be redeemed pursuant to the redemption provisions of Proler
International's Rights Agreement. Immediately after the Effective Time, Holding
Company shall distribute to holders of record of Holding Company Common Stock
immediately after the Effective Time one-third of one right to purchase 1/100th
of one share of Series A Junior Participating Preferred Stock of Holding Company
(a "SUCCESSOR STOCK RIGHT") for each issued and outstanding share of Holding
Company Common Stock. As provided by the Holding Company's Rights Agreement,
each Successor Stock Right shall be represented by the outstanding share of
Holding Company Common Stock in respect of which the Successor Stock Right was
issued, will not be transferrable separately from the associated share of
Holding Company Common Stock, and will be automatically transferred upon
transfer of the associated share of Holding Company Common Stock.
4.3 ASSUMPTION OF PROLER INTERNATIONAL OBLIGATIONS TO ISSUE CAPITAL
STOCK. Immediately prior to the Effective Time, Proler International was a party
to or subject to certain agreements and arrangements, including stock grants,
options, and rights, and compensation plans and agreements, pursuant to which
parties thereto or beneficiaries thereof acquired, or acquired certain rights to
acquire, shares of capital stock of Proler International, including but not
limited to: (i) the Proler International Corp. Tax Deferred Savings and
Retirement Plan and Trust; (ii) the 1988 Stock Option Plan; and (iii) the 1994
Non-Employee Director Stock Option Plan (all such stock grants, options, rights,
and compensation plans and agreements being referred to herein as the "PLANS").
As of the Effective Time, Holding Company shall adopt, assume, and agree to be
bound by each and every Plan, and any right to acquire a share or fraction of a
share of capital stock of Proler International under any such Plan shall,
without further act or deed by Proler International or its stockholders, be
converted into a right to acquire a share or equal fraction of a share of
capital stock of Holding Company pursuant to such Plan.
4.4 SURRENDER AND CANCELLATION OF SHARES OF PROLER MERGER. At the
Effective Time, each share of Common Stock of Proler Merger that is outstanding
immediately prior to
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the Merger shall be converted into a share of Common Stock of the Surviving
Corporation and the certificate(s) evidencing ownership of all outstanding
shares of Common Stock of Proler Merger shall be surrendered to the Secretary of
the Surviving Corporation in exchange for shares of Common Stock of the
Surviving Corporation into which they are converted pursuant to this
SECTION 4.4.
4.5 SURRENDER AND CANCELLATION OF PROLER INTERNATIONAL'S SHARES IN
HOLDING COMPANY. At the Effective Time, Proler International's 1,000 shares of
Common Stock of Holding Company owned immediately prior to the Merger shall be
canceled without payment of any consideration for such cancellation.
ARTICLE V.
OFFICERS AND DIRECTORS OF
HOLDING COMPANY AND SURVIVING CORPORATION
5.1 HOLDING COMPANY. The officers and directors of Proler International
holding office immediately prior to the effectiveness of the Merger shall serve
in the same capacities as the officers and directors of the Holding Company
until the next annual meeting of stockholders of the Holding Company or until
their successors shall have been elected and qualified.
5.2 SURVIVING CORPORATION. The officers and directors of Proler
International holding office immediately prior to the effectiveness of the
Merger shall serve in the same capacities as officers and directors of the
Surviving Corporation until the next annual meeting of stockholders or until
their successors have been elected and qualified.
ARTICLE VI.
ARTICLES OF INCORPORATION AND BYLAWS OF
HOLDING COMPANY AND SURVIVING CORPORATION
6.1 HOLDING COMPANY. The Certificate of Incorporation and Bylaws of
Holding Company as in effect immediately prior to the Effective Time shall be
the Certificate of Incorporation and Bylaws of Holding Company following the
Merger, provided that the Certificate of Incorporation shall be amended
effective as of the Effective Time to change the name of Holding Company to
"Proler International Corp."
6.2 SURVIVING CORPORATION The Restated Certificate of Incorporation and
Restated Bylaws of Proler International as in effect immediately prior to the
Effective Time shall pursuant to subsection (g) of ss.251 of the DGCL, be the
Certificate of Incorporation and Bylaws of the Surviving Corporation following
the Merger; PROVIDED, HOWEVER, that (i) Article FOURTH of the Certificate of
Incorporation of the Surviving Corporation shall be amended to read in its
entirety as follows:
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"FOURTH. The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 1,000 shares of Common
Stock, $1.00 par value per share (the "Common Stock").
(a) DIVIDEND RIGHTS. Subject to the provisions of law, the
holders of the Common Stock shall be entitled to receive dividends at
such time and in such amounts as may be determined by the board of
directors.
(b) VOTING RIGHTS. Except as provided by law and in this
Certificate of Incorporation, the holders of the Common Stock shall
have one vote for each share on each matter submitted to a vote of the
stockholders of the Corporation. Except as otherwise provided by law or
by this Certificate of Incorporation, the holders of the Common Stock
shall have sole voting power.
(c) LIQUIDATION RIGHTS. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and
other liabilities of the Corporation and the preferential amounts to
which the holders of any stock ranking prior to the Common Stock in the
distribution of assets shall be entitled upon liquidation, the holders
of the Common Stock and the holders of any other stock ranking on a
parity with the Common Stock in the distribution of assets upon
liquidation shall be entitled to share in the remaining assets of the
Corporation according to their respective interests."
AND FURTHER PROVIDED, required by subsection (g) of ss.251 of the DGCL, there
shall be added a new Article SEVENTEENTH to the Certificate of Incorporation of
the Joint Venture Operations, Inc. as follows:
"SEVENTEENTH. Any act or transaction by or involving the Corporation
that requires for its adoption the approval of its stockholders
pursuant to the Delaware General Corporation Law or the provisions of
this Certificate of Incorporation, shall pursuant to subsection (g) of
ss.251 of the Delaware General Corporation Law also require the
approval of the stockholders of Proler International Corp. (and any
successor by merger) by the same vote as is required pursuant to the
Delaware General Corporation Law or the provisions of this Certificate
of Incorporation, as the case may be."
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IN WITNESS WHEREOF, each of Proler Merger, Proler International and
Proler Successor, pursuant to the authority granted by their respective Boards
of Directors, have caused this Agreement to be executed and attested by their
duly appointed officers and their respective corporate seal to be hereunto
affixed.
PROLER INTERNATIONAL CORP.
By:/s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: President
PROLER MERGER, INC.
By:/s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: President
PROLER SUCCESSOR, INC.
By:/s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: President
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