EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of March 23, 1999,
by and between C. B. Realty of Delaware, Inc. a Delaware corporation ("CBR"),
and Nations Flooring, Inc., a Delaware corporation ("Nations" or the "Surviving
Corporation") (CBR and Nations are sometimes hereinafter referred to as the
"Constituent Corporations").
WITNESSETH:
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WHEREAS, CBR is a corporation duly organized on May 8, 1995 and validly
existing under the laws of the State of Delaware;
WHEREAS, Nations is a corporation duly organized on December 26, 1996 and
validly existing under the laws of the State of Delaware;
WHEREAS, CBR is duly authorized to issue 1,000 shares of stock consisting
of 1,000 shares of common stock, par value $.01 per share ("CBR Common Stock"),
of which 100 shares are validly issued and outstanding, fully paid and
non-assessable.
WHEREAS, Nations is duly authorized to issue 21,000,000 shares of stock
consisting of 20,000,000 shares of common stock, par value $.001 per share
("Nations Common Stock"), and 1,000,000 shares of preferred stock, par value
$.001 per share ("Nations Preferred Stock"), of which 3,642,387 shares of
Nations Common Stock and 4,660 shares of Nations Preferred Stock are issued and
outstanding, fully paid and non-assessable and of which Nations Preferred Stock
5,160 shares have been designated as Series A Preferred Stock and no other
series of Nations Preferred Stock have been designated;
WHEREAS, the Boards of Directors of the Constituent Corporations have
deemed it desirable and in the best interests of their respective corporations
to merge CBR with and into Nations in accordance with Section 251 of the
Delaware General Corporation Law (the "DGCL") and in accordance with the
provision of Section 368 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Merger. CBR shall be merged (the "Merger") with and into Nations.
Nations shall survive the Merger and shall continue to be governed by the laws
of the State of Delaware, but the separate corporate existence of CBR shall
cease forthwith upon the Effective Date (as hereinafter defined).
2. Effective Date. Subject to the conditions hereinafter set forth, the
Merger shall become effective (the "Effective Date") upon the filing of this
Agreement with the Secretary of State of the State of Delaware.
3. Certificate of Incorporation: By-Laws. From and after the Effective Date
and until thereafter amended or supplemented or repealed in accordance with
their respective terms, the Certificate of Incorporation and the By-laws of
Nations as in effect on the date hereof shall be the Certificate of
Incorporation and the By-laws of the Surviving Corporation.
4. Directors and Officers. The directors and officers of Nations
immediately prior to the Effective Date shall be the directors and officers of
the Surviving Corporation, each to hold office (subject to the By-laws of the
Surviving Corporation) until their respective successors shall be duly elected
or appointed and qualified.
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5. Conversion of Outstanding Stock of CBR. Forthwith upon the Effective
Date, each of the issued and outstanding shares of CBR Common Stock, and all
rights in respect thereof, shall be converted into 597.254 fully paid and
non-assessable share of Nations Common Stock, and each certificate nominally
representing shares of CBR Common Stock shall for all purposes be deemed to
evidence the ownership of 597.254 shares of Nations Common Stock.
6. Assets and Liabilities. At and after the Effective Date, Nations shall
succeed to and possess, without further act or deed, all of the estate, rights,
privileges, powers and franchises (both public and private) and all of the
property (real, personal and mixed) of each of the Constituent Corporations; all
debts due to CBR shall be vested in Nations; all claims, demands, property,
rights, privileges, powers and franchises and every other interest of either of
the Constituent Corporations shall be as effectively the property of Nations as
they were of the respective Constituent Corporations; the title to any real
estate vested by deed or otherwise in CBR shall not revert or be in any way
impaired by reason of the Merger, but shall be vested in Nations; all rights of
creditors and all liens upon any property of either of the Constituent
Corporations shall be preserved, unimpaired, limited in lien to the property
affected by such lien at the Effective Date; all debts, liabilities and duties
of the Constituent Corporations shall thenceforth attach to Nations 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 Nations shall indemnify and hold
harmless the officers and directors of each of the Constituent Corporations
against all such debts, liabilities and duties and against all claims and
demands arising out of the Merger.
7. Further Assurance of Title. If at any time Nations shall consider or be
advised that any acknowledgments or assurances in law or other similar actions
are necessary or desirable in order to acknowledge or confirm in and to Nations
any right, title or interest of
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CBR held immediately prior to the Effective Date, CBR and its proper officers
and directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or desirable to acknowledge or
confirm such right, title or interest in Nations as shall be necessary to carry
out the purposes of this Agreement, and Nations and its proper officers and
directors are fully authorized to take any and all such action in the name of
CBR or otherwise.
8. Conditions to Merger. The consummation of the Merger is subject to the
satisfaction of the following conditions prior to the Effective Date:
(a) This Agreement shall, to the extent required by Delaware law, have
been approved and adopted by the requisite number of stockholders of each of the
Constituent Corporations;
(b) Each of the Constituent Corporations shall have received, or waived
receipt of, such licenses, permits, consents, approvals, authorizations,
qualifications and orders of governmental authorities and parties to contracts
with the Constituent Corporations as are necessary for consummation of the
transactions contemplated by this Agreement; and
(c) No preliminary or permanent injunction or other order issued by any
court of competent jurisdiction preventing the consummation of the Merger shall
be in effect.
9. Indemnification. The Surviving Corporation shall, to the fullest extent
permitted by law, indemnify all directors, officers, agents, employees and
representatives of each of the Constituent Corporations whom it shall have power
to indemnify, from and against any and all claims, actions, causes of action,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or relating to this Agreement and the
consummation of the transactions contemplated thereby, including the Merger.
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10. Termination. This Agreement may be terminated and the Merger and other
transactions herein provided for abandoned at any time prior to the Effective
Date (whether before or after adoption and approval of this Agreement by the
stockholders of any of the Constituent Corporations) by action of the Board of
Directors of either of the Constituent Corporations if said Board of Directors
determines that the consummation of the transactions provided for herein would
not, for any reason, be in the best interests of such corporation and its
stockholders.
11. Deferral. Consummation of the transactions herein provided for may be
deferred by the Board of Directors of either of the Constituent Corporations for
a reasonable period of time if said Board of Directors determines that such
deferral would be in the best interests of such corporation and its
stockholders.
12. Name and Principal Office. The name of the Surviving Corporation shall
be Nations Flooring, Inc. and its principal executive offices shall be ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
13. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
15. Expenses and Rights of Stockholders. Nations shall pay all expenses of
carrying this Agreement into effect and of accomplishing the Merger.
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IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto have executed this Agreement as of the year and date first
above written.
ATTEST: C. B. REALTY OF DELAWARE, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary Title: President
ATTEST: NATIONS FLOORING, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary Title: Chairman of the Board