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RVM INDUSTRIES, INC.
FORM 8-B
MARCH 31, 1997
EXHIBIT 2
AGREEMENT AND PLAN OF REORGANIZATION
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AGREEMENT AND PLAN OF REORGANIZATION
AMONG RAVENS METAL PRODUCTS, INC.,
RVM INDUSTRIES, INC. AND RAVENS, INC.
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement"), dated as of March
24, 1997, is entered into by and among Ravens Metal Products, Inc., a Delaware
corporation (the "Company"), RVM Industries, Inc., a Delaware corporation and a
direct, wholly owned subsidiary of the Company ("RVM"), and Ravens, Inc., a
Delaware corporation and a direct, wholly owned subsidiary of RVM ("Ravens").
RECITALS
A. The Company's authorized capital stock consists of (i)
3,000,000 shares of common stock, par value $.01 per share
("Company Common Stock"), of which 1,934,255 shares are issued
and outstanding and no shares are held in treasury, and (ii)
300,000 shares of preferred stock, without par value, none of
which is currently outstanding.
B. RVM's authorized capital stock consists of (i) 3,000,000
shares of common stock, par value $.01 per share ("RVM Common
Stock"), of which 100 shares are issued and outstanding and no
shares are held in treasury and (ii) 300,000 shares of
preferred stock, without par value, none of which is currently
outstanding.
C. The designations, rights and preferences, qualifications,
limitations and restrictions of the RVM Common Stock are
the same as those of the Company Common Stock.
D. The certificate of incorporation and the by-laws of RVM
immediately after the Effective Time (defined below) will
contain provisions identical to the Restated Certificate of
Incorporation and By-Laws of the Company immediately before
the Effective Time (other than with respect to matters
excepted or required by Section 251(g) of the General
Corporation Law of the State of Delaware (the "DGCL")).
E. The directors of the Company immediately prior to the Merger
(defined below) will be the directors of RVM as of the
Effective Time.
F. RVM and Ravens are newly formed corporations organized solely
for the purpose of effecting the restructuring herein
contemplated.
G. The Company desires to create a new holding company structure
by merging the Company with Ravens (with the Company being the
surviving corporation) and converting each outstanding share
of Company Common Stock into a like number of shares of RVM
Common Stock, all in accordance with the terms and conditions
of this Agreement.
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H. The Boards of Directors of RVM, Ravens and the Company have
approved this Agreement and the merger of the Company with
Ravens upon the terms and subject to the conditions set forth
in this Agreement (the "Merger").
I. Pursuant to authority granted by the Board of Directors of the
Company, the Company will, immediately prior to the Effective
Time of the Merger, contribute to the capital of RVM all the
shares of RVM Common Stock then owned of record and
beneficially by the Company.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, and intending to be legally bound
hereby, the Company, RVM and Ravens hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. In accordance with Section 251(g) of the DGCL and
subject to and upon the terms and conditions of this Agreement, the Company
shall, at the Effective Time, be merged with Ravens, the separate corporate
existence of Ravens shall cease and the Company shall continue as the surviving
corporation. The Company, as the surviving corporation after the Merger, is
hereinafter sometimes referred to as the "Surviving Corporation." At the
Effective Time, the effect of the Merger shall be as provided in Section 259 of
the DGCL.
Section 1.2 Effective Time. The Merger shall become effective upon the filing,
after the date hereof and on or before March 31, 1997, of a copy of this
Agreement with the Secretary of State of the State of Delaware (the time of such
filing being referred to herein as the "Effective Time").
Section 1.3 Certificate of Incorporation. From and after the Effective Time,
until thereafter amended as provided by law, the certificate of incorporation
of the Surviving Corporation will be the Certificate of Incorporation of the
Company, as in effect immediately prior to the Effective Time, except for the
following amendments (required or permitted by applicable law) to the
certificate of incorporation of the Surviving Corporation.
(i) Article 1 of the certificate of incorporation of of the Surviving
Corporation will state in its entirety as follows:
"ARTICLE 1
"The name of the corporation (the "Corporation") is Ravens, Inc."
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(ii) Article 5 of the certificate of incorporation of of the Surviving
Corporation will state in its entirety as follows:
"ARTICLE 5
The aggregate number of shares which the Corporation shall have
authority to issue is One Thousand (1,000) shares of Common Stock
having a par value of One Xxxxx($.01) per share."
(iii) A new Article 12 of the certificate of incorporation of the Surviving
Corporation will state in its entirety as follows:
"ARTICLE 12
Any act or transaction by or involving the Corporation that requires
for its adoption under the General Corporation Law of the State of
Delaware or its certificate of incorporation the approval of the
stockholders of the Corporation shall, by virtue of this reference to
Section 251(g) of the General Corporation Law of the State of Delaware,
require, in addition, the approval of the stockholders of RVM
Industries, Inc., a Delaware corporation (or any successor by merger),
so long as such corporation or its successor is the ultimate parent,
directly or indirectly, of this Corporation, by the same vote that is
required by the General Corporation Law of the State of Delaware and/or
the certificate of incorporation of this Corporation. For the purposes
of this Article 12, the term "parent" shall mean a corporation that
owns, directly or indirectly, at least a majority of the outstanding
capital stock of this Corporation entitled to vote in the election of
directors of this Corporation without regard to the occurrence of any
contingency."
Section 1.4 By-Laws. From and after the Effective Time, the By-Laws of the
Company, as in effect immediately prior to the Effective Time, shall be the
by-laws of the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
Section 1.5 Directors. The directors of the Company immediately prior to the
Effective Time shall be the initial directors of the Surviving Corporation and
will hold office from the Effective Time until their successors are duly elected
or appointed and qualified in the manner provided in the certificate of
incorporation and the by-laws of the Surviving Corporation or as otherwise
provided by law.
Section 1.6 Officers. The officers of the Company immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation and
will hold office from the Effective Time until their successors are duly elected
or appointed and qualified in the manner provided in the
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certificate of incorporation and the by-laws of the Surviving Corporation or as
otherwise provided by law.
Section 1.7 Additional Actions. Subject to the terms of this Agreement, the
parties hereto shall take all such reasonable and lawful action as may be
necessary or appropriate in order to effectuate the Merger. If, at any time
after the Effective Time, the Surviving Corporation shall consider or be advised
that any deeds, bills of sale, assignments, assurances or any other actions or
things are necessary or desirable to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation its right, title or interest in, to or
under any of the rights, properties or assets acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the
Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of each of Ravens and the Company, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of Ravens and the Company, all such other actions and things as may be necessary
or desirable to vest, perfect or confirm any and all right, title and interest
in, to and under such rights, properties or assets in the Surviving Corporation
or otherwise to carry out this Agreement.
Section 1.8 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of RVM, the Company or the holder of
any of the following securities:
(a) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted
into and thereafter represent one duly issued, fully paid and
nonassessable share of RVM Common Stock.
(b) Each share of the Company's capital stock, if any, whether
preferred or common, issued but held by the Company in its
treasury immediately prior to the Effective Time shall be
converted into and thereafter represent one duly issued, fully
paid and nonassessable share of RVM preferred stock or Common
Stock held by RVM in its treasury.
(c) From and after the Effective Time, holders of certificates
formerly evidencing Company Common Stock shall cease to have
any rights as shareholders of the Company, except as provided
by law; provided, however, that such holders shall have the
rights set forth in Section 1.9 hereof.
Section 1.9 Notice to Shareholders of the Company; Exchange of Certificates. As
soon as practicable after the Effective Time, a notice describing the Merger
will be sent to each holder of Company Common Stock as of the date thereof,
together with instructions for surrendering certificates representing shares of
Company Common Stock in exchange for certificates representing shares of RVM
Common Stock. Until surrendered for exchange, each outstanding certificate that,
immediately prior to the Effective Time, evidenced Company Common Stock shall
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be deemed and treated for all corporate purposes to evidence the ownership of
the number of shares of RVM Common Stock into which such shares of Company
Common Stock were converted pursuant to the provisions of Sections 1.8 (a) and
(b) hereof.
ARTICLE II
ACTIONS TO BE TAKEN IN
CONNECTION WITH THE MERGER
Section 2.1 Company Indebtedness. The Company will continue as the Surviving
Corporation, will retain all its assets, and will continue to be liable for all
its debt ("Company Debt") and other obligations. However, since the Company will
change its name as a result of the Merger, it will, if required by any lender,
execute, acknowledge and deliver any and all instruments and documents required
to confirm the liability of the Surviving Corporation for the Company Debt.
Section 2.2 Stock Plans. In connection with the Merger, the Company will cease
to be a public company, and RVM, from and after the Effective Time, will perform
all obligations of the Company pursuant to any stock option or other stock plan
of the Company ("Stock Plans").
Section 2.3 Reservation of Shares. As soon as practicable after the Effective
Time, RVM will reserve sufficient shares of RVM Common Stock to provide for the
issuance of RVM Common Stock upon exercise of options outstanding under the
Stock Plans.
ARTICLE III
CONDITIONS OF MERGER
Section 3.1 Conditions Precedent. The obligations of the parties to this
Agreement to consummate the Merger and the transactions contemplated by this
Agreement shall be subject to fulfillment or waiver by the parties of the
condition that, at the Effective Time, no order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order shall
have been enacted, entered, promulgated or enforced by any court or governmental
or regulatory authority or instrumentality which prohibits or makes illegal the
consummation of the Merger or the transactions contemplated hereby.
ARTICLE IV
COVENANTS
Section 4.1 Election of Directors. Immediately prior to the Effective Time, the
Company, in its capacity as the sole stockholder of RVM, will elect each person
who is then a member of the board of directors of the Company as a member of the
board of directors of RVM, each of whom
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shall serve until the first annual meeting of shareholders of RVM to be held
following the expiration of his term, and until his successor shall have been
elected and qualified.
Section 4.2 Employee Benefit Plans. From and after the Effective Time, the
Surviving Corporation and RVM will take or cause to be taken all further
actions, if any, necessary or desirable in order for RVM to assume (or become a
participating employer in) each employee benefit plan and agreement of the
Company, or to adopt comparable plans, all to the extent deemed appropriate by
the Surviving Corporation and RVM and permitted under applicable law.
Section 4.3 Contribution of Treasury Stock. At the Effective Time, the Company
will contribute to the capital of RVM all the Company Common Stock then held in
the treasury of the Company.
Section 4.4 Contribution of Outstanding RVM Stock. Immediately prior to the
Effective Time, the Company will contribute to the capital of RVM all shares of
RVM Common Stock then outstanding and owned of record and beneficially by the
Company.
ARTICLE V
TERMINATION AND AMENDMENT
Section 5.1 Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time by
action of the Board of Directors of the Company, RVM or Ravens if it should
determine that for any reason the completion of the transactions provided for
herein would be inadvisable or not in the best interest of such corporation or
its stockholders. In the event of such termination and abandonment, this
Agreement shall become void and neither the Company, RVM or Ravens nor their
respective stockholders, directors or officers shall have any liability with
respect to such termination and abandonment.
Section 5.2 Amendment. This Agreement may be supplemented, amended or modified
by the mutual consent of the Boards of Directors of the parties to this
Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Governing Law. Except with respect to matters contained herein
governed by the DGCL, this Agreement has been executed and delivered in the
State of Ohio and shall be governed by and construed and enforced under the laws
of the State of Ohio, regardless of the laws that might otherwise govern under
applicable Ohio principles of conflicts of law.
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Section 6.2 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which shall constitute one and the same agreement.
Section 6.3 Entire Agreement. This Agreement, including the documents and
instruments referred to herein, constitutes the entire agreement and supersedes
all other prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, RVM, Ravens and the Company have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
RAVENS METAL PRODUCTS, INC.
By /s/ Xxxxx Xxxxxxx
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Chairman and Chief Executive Officer
RVM INDUSTRIES, INC.
By /s/ Xxxxx Xxxxxxx
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Chairman and Chief Executive Officer
RAVENS, INC.
By /s/ Xxxxx Xxxxxxx
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Chairman and Chief Executive Officer
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I, Xxxxxxxx X. Xxxxxx, Secretary of Ravens Metal Products, Inc., do hereby
certify that the Board of Directors of Ravens Metal Products, Inc. approved and
adopted this Agreement at a meeting duly called for the purpose on March 24,
1997 pursuant to Section 251(g) of the Delaware General Corporation Law and that
the conditions specified in the first sentence of said Section 251(g) have been
satisfied.
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Secretary
I, Xxxxxxxx X. Xxxxxx, Secretary of RVM Industries, Inc., do hereby certify that
the Board of Directors of RVM Industries, Inc. approved and adopted this
Agreement at a meeting duly called for the purpose on March 24, 1997 pursuant to
Section 251(g) of the Delaware General Corporation Law and that the conditions
specified in the first sentence of said Section 251(g) have been satisfied.
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Secretary
I, Xxxxxxxx X. Xxxxxx, Secretary of Ravens, Inc., do hereby certify that the
Board of Directors of Ravens, Inc. approved and adopted this Agreement at a
meeting duly called for the purpose on March 24, 1997 pursuant to Section 251(g)
of the Delaware General Corporation Law and that the conditions specified in the
first sentence of said Section 251(g) have been satisfied.
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Secretary
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