EXHIBIT A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of July 21, 2000,
is entered into between PAMECO CORPORATION, a Georgia corporation ("Pameco
Georgia"), and PAMECO ACQUISITION CORPORATION , a Delaware corporation ("Pameco
Delaware"). Pameco Georgia and Pameco Delaware are hereinafter sometimes
collectively referred to as the "Constituent Corporations."
W I T N E S E T H:
WHEREAS, Pameco Georgia is a corporation duly organized and existing under
the laws of the State of Georgia;
WHEREAS, Pameco Delaware is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, on the date of this Agreement, Pameco Georgia has authority to
issue 65,000,000 shares of capital stock, consisting of: (i) 40,000,0000 shares
of Class A common stock, par value $0.01 per share , 7,383,261 of which shares
are issued and outstanding; (ii) 20,000,000 shares of Class B common stock, par
value $0.01 per share (collectively "Pameco Georgia Common Stock"), 1,872,929 of
which are issued and outstanding; and (iii) 5,000,000 shares of preferred stock,
par value $1.00 per share ("Pameco Georgia Preferred Stock"), of which 600,000
shares of Pameco Georgia Preferred Stock have been designated as Series A
Cumulative Pay-in-Kind Preferred Stock (the "Georgia Series A Preferred Stock")
and 140,000 shares of Georgia Series A Preferred Stock are issued and
outstanding;
WHEREAS, on the date of this Agreement, Pameco Delaware has authority to
issue 25,000,000 shares of capital stock, consisting of: (i) 20,000,000 shares
of common stock, par value $0.01 per share ("Pameco Delaware Common Stock") , of
which 100 shares are issued and outstanding; (ii) 5,000,000 shares of preferred
stock, par value $1.00 per share ("Pameco Delaware Preferred Stock"), of which
600,000 shares of Pameco Delaware Preferred Stock have been designated as Series
A Cumulative Pay-in-Kind Preferred Stock (the "Delaware Series A Preferred
Stock"), and none of which are issued and outstanding;
WHEREAS, the respective Boards of Directors of Pameco Georgia and Pameco
Delaware have determined that it is advisable and in the best interests of the
Constituent Corporations that Pameco Georgia merge with and into Pameco Delaware
upon the terms and subject to the conditions set forth in this Agreement for the
purpose of effecting the change of the state of incorporation of Pameco Georgia
from Georgia to Delaware (the "Merger");
WHEREAS, the respective Boards of Directors of Pameco Georgia and Pameco
Delaware have, by resolutions duly adopted, approved this Agreement;
WHEREAS, Pameco Georgia has approved this Agreement as the sole stockholder
of Pameco Delaware; and
WHEREAS, the stockholders of Pameco Georgia have approved this Agreement;
WHEREAS, this merger is being done solely to effectuate a change of place
of incorporation of Pameco Georgia and is intended to qualify as a
reorganization under section 368(a)(1)(f) of the Internal Revenue Code of 1986
as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Pameco Georgia and Pameco Delaware hereby agree as follows:
1. MERGER. Subject to the conditions of this Agreement, Pameco Georgia
shall be merged with and into Pameco Delaware, and Pameco Delaware shall be the
surviving corporation in the Merger (hereinafter sometimes referred to as the
"Surviving Corporation"). The Merger shall become effective upon the date and at
the time of filing of an appropriate certificate or articles of merger,
providing for the Merger, with the Secretary of State of the State of Georgia
and with the Secretary of State of the State of Delaware, whichever later occurs
(the "Effective Time").
2. GOVERNING DOCUMENTS. The Certificate of Incorporation of Pameco
Delaware, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation (the "Surviving
Corporation Certificate of Incorporation") without change or amendment until
thereafter amended in accordance with the provisions thereof and applicable
laws, except that the Surviving Corporation Certificate of Incorporation shall
be amended to change the name of Pameco Delaware to "Pameco Corporation." The
Bylaws of Pameco Delaware, as in effect immediately prior to the Effective Time,
shall be the Bylaws of the Surviving Corporation without change or amendment
until thereafter amended in accordance with the provisions thereof, of the
Surviving Corporation Certificate of Incorporation and applicable law.
3. SUCCESSION. At the Effective Time, the separate corporate existence
of Pameco Georgia shall cease, and Pameco Delaware shall possess all the rights,
privileges, powers and franchises of a public and private nature and be subject
to all the restrictions, disabilities and duties of each of the Constituent
Corporations; and all the rights, privileges, powers and franchises of each of
the Constituent Corporations, and all property, real, personal and mixed, and
all debts due to each of the Constituent Corporations on whatever account,
including subscriptions for shares, and all other choses in action, shall be
vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall thereafter
effectively be the property of the Surviving Corporation as they were of the
respective Constituent Corporations, and the title to any real estate vested by
deed or otherwise, in either of such Constituent Corporations shall not revert
or be in any way impaired by reason of the Merger; but all rights of creditors
and all liens upon any property of Pameco Georgia shall be preserved unimpaired.
To the extent permitted by law, any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may be
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prosecuted as if the Merger had not taken place. All debts, liabilities and
duties of the respective Constituent Corporations shall thenceforth 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. All
corporate acts, plans, policies, agreements, arrangements, approvals and
authorizations of Pameco Georgia, its stockholders, Board of Directors and
committees thereof, officers and agents which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as the
acts, plans, policies, agreements, arrangements, approvals and authorizations of
the Surviving Corporation and shall be as effective and binding thereon as the
same were with respect to Pameco Georgia. The employees and agents of Pameco
Georgia shall become the employees and agents of the Surviving Corporation and
continue to be entitled to the same rights and benefits which they enjoyed as
employees and agents of Pameco Georgia. The requirements of any plans or
agreements of Pameco Georgia involving the issuance or purchase by Pameco
Georgia of certain shares of its capital stock shall be satisfied by the
issuance or purchase of a like number and same class of shares of the Surviving
Corporation.
4. DIRECTORS AND OFFICERS. The directors and officers of Pameco
Georgia on the Effective Time shall be and become the sole directors and
officers, holding the same titles and positions, of the Surviving Corporation on
the Effective Time, and after the Effective Time shall serve in accordance with
the Bylaws of the Surviving Corporation.
5. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of Pameco Georgia such deeds and other instruments, and
there shall be taken or caused to be taken by it all such further and other
action, as shall be appropriate, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Pameco Georgia, and otherwise to
carry out the purposes of this Agreement, and the officers and directors of the
Surviving Corporation are fully authorized in the name and on behalf of Pameco
Georgia or otherwise, to take any and all such action and to execute and deliver
any and all such deeds and other instruments.
6. CANCELLATION AND CONVERSION OF SHARES. Each share of Pameco
Delaware Common Stock issued and outstanding to Pameco Georgia shall be
cancelled and retired for no consideration and resume the status of authorized
and issued shares of Pameco Delaware Common Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder thereof,
(a) each three shares of Pameco Georgia Common Stock outstanding immediately
prior to the Effective Time shall be changed and converted into and shall be one
fully paid and non-assessable share of Pameco Delaware Common Stock (the
"Reverse Stock Split"), and (b) each share of Georgia Series A Preferred Stock
outstanding, immediately prior to the Effective Time shall be changed and
converted into and shall be one fully paid and non-assessable share of Delaware
Series A Preferred Stock (with the Reverse Stock Split, collectively the
"Conversion"). All certificates of a single holder of Pameco Georgia Common
Stock and Georgia Series A Preferred will be aggregated (respectively) for the
purpose of the Conversion.
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7. NO FRACTIONAL SHARES. No fractional shares of Pameco Delaware
Common Stock and Delaware Series A Preferred Stock shall be issued. In lieu of
fractional shares, the former holders of Pameco Georgia Common affected by the
Conversion pursuant to the Merger who would otherwise be entitled to fractional
shares of Pameco Delaware Common Stock, shall receive, in lieu thereof, cash
(without interest) in an amount equal to the product of (i) such fractional part
of a share of Pameco Delaware Common Stock , multiplied by (ii) the closing
price per share of Pameco Georgia Common Stock on the New York Stock Exchange
("NYSE") on the business day immediately prior to the Effective Time.
8. CONDITIONS TO OBLIGATIONS. The obligations of each party to
complete the Merger are subject to the following conditions:
a) Pameco Georgia Shareholder Approval of the Merger. The Merger
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shall have received the requisite approval of the shareholders of Pameco Georgia
pursuant to the General Business Corporation Code of the State of Georgia.
b) Pameco Georgia Shareholder Approval of the Surviving Corporation
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Certificate of Incorporation. The Surviving Corporation Certificate of
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Incorporation shall have received the requisite approval of the shareholders of
Pameco Georgia pursuant to the General Business Corporation Code of the State of
Georgia and the General Corporation Law of the State of Delaware.
c) Pameco Georgia Shareholder Approval of the Reverse Stock Split.
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The Reverse Stock Split shall have received the requisite approval of the
shareholders of Pameco Georgia pursuant to the General Business Corporation Code
of the State of Georgia and the General Corporation Law of the State of
Delaware.
d) Approval from Government Agencies. All governmental approvals
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and other actions required to effect the Merger and related transactions shall
have been obtained, if any, without conditions or restrictions that the affected
party reasonably considers unduly burdensome.
e) Approval from Fleet Capital Corporation. All approvals and
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other actions required to effect the Merger and related transactions shall have
been obtained from Fleet Capital Corporation, if any, without conditions or
restrictions that the affected party reasonably considers unduly burdensome.
f) Limited Dissenters' Rights. The holders of not more than 5% of
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the outstanding shares of any class of capital stock of Pameco Georgia shall
have properly sought and not withdrawn a request to invoke dissenters' rights
under Section 14-2-1301, et seq. of the Georgia Business Corporation Code, which
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may be waived by Pameco Delaware in its sole discretion.
9. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which, immediately prior to the Effective Time,
represented shares of Pameco
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Georgia Common Stock and Georgia Series A Preferred Stock shall be deemed for
all purposes to evidence ownership of, and to represent, respectively, shares of
Pameco Delaware Common Stock, and Delaware Series A Preferred Stock into which
the shares of Pameco Georgia Common Stock and Georgia Series A Preferred Stock,
formerly represented by such certificates, have been converted as herein
provided. The registered owner on the books and records of the Surviving
Corporation or its transfer agents of any such outstanding stock certificate
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to the Surviving Corporation or its transfer agents,
have and be entitled to exercise any voting and other rights with respect to,
and to receive any dividends and other distributions upon, the shares of Pameco
Delaware Common Stock and Delaware Series A Preferred Stock evidenced by such
outstanding certificate as above provided.
10. OPTIONS AND WARRANTS.
a) Each option to purchase, or other award of shares of, Pameco
Georgia Common Stock outstanding immediately prior to the Effective Time, shall,
by virtue of the Merger and without any action on the part of the holder
thereof, shall cease to represent a right to acquire shares of Pameco Georgia
Common Stock and shall be converted into and become an option to purchase, or
award of, that number of shares of Pameco Delaware Common Stock determined by
multiplying the number of shares of Pameco Georgia Common Stock granted under
each option, or other award, by the ratio of one-third (1/3), at an exercise
price for shares of Pameco Georgia Common Stock equal to the original exercise
price to purchase shares of Pameco Georgia Common Stock multiplied by three (3),
and upon the same terms and subject to the same conditions as set forth in each
of the respective options or other awards, as in effect at the Effective Time.
b) Each warrant to purchase, or other award of shares of Georgia
Series A Preferred Stock outstanding immediately prior to the Effective Time,
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into and become a warrant to purchase, or award of, the
same number of shares of Delaware Series A Preferred Stock at the same exercise
price per share, and upon the same terms and subject to the same conditions as
set forth in each of the respective options or other awards, as in effect at the
Effective Time.
c) The adjustment provided herein with respect to any option to
purchase, or other award of shares of Pameco Georgia Common Stock ("Original
Stock Options") which are "incentive stock options" (as defined in Section 422
of the Code) shall be and are intended to be effected in a manner which is
consistent with Section 424(a) of the Code. Pameco Delaware acknowledges and
confirms that the option plans of Pameco Georgia under which the Original Stock
Options were issued are assumed by Pameco Delaware, and the duration and other
terms of the new option shall be the same as the Original Stock Option, except
that all references to Pameco Georgia shall be deemed to be references to Pameco
Delaware. As soon as practicable after the Effective Time, Pameco Delaware shall
deliver to holders of Original Stock Options
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appropriate option agreements representing the right to acquire Pameco Delaware
Common Stock on the terms and conditions set forth in this Section 10.
d) Pameco Delaware shall take all corporate action necessary to
reserve for issuance a sufficient number of Pameco Delaware Common Stock for
delivery upon exercise of options or warrants and/or upon the Conversion of
Delaware Series A Preferred Stock in accordance with this Section 10. Pameco
Delaware shall file a registration statement on Form S-8 (or any successor form)
or another appropriate form, effective promptly after the Effective Time, with
respect to Pameco Delaware Common Stock subject to the new options and shall use
all reasonable efforts to maintain the effectiveness of such registration
statement or registration statements (and maintain the current status of the
prospectus or prospectuses contained therein) for so long as such options remain
outstanding.
11. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time, Pameco
Delaware acknowledges and confirms its assumption by operation of law all
obligations under any and all employee benefit plans of Pameco Georgia in effect
as of the Effective Time or with respect to which employee rights or accrued
benefits are outstanding as of the Effective Time.
12. AMENDMENT. Subject to applicable law, this Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein; provided, however, that no such amendment, modification or supplement
not adopted and approved by the stockholders of Pameco Georgia and Pameco
Delaware shall affect the rights of either or both of such stockholders in a
manner which is materially adverse to either or both of them.
13. TERMINATION. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of Pameco Georgia, notwithstanding approval of this Agreement by the
sole stockholder of Pameco Delaware or by the stockholders of Pameco Georgia, or
both, if, in the opinion of the Board of Directors of Pameco Georgia,
circumstances arise which, in the opinion of such Board of Directors, make the
Merger for any reason inadvisable.
14. COUNTERPARTS; FACSIMILE. In order to facilitate the filing and
recording of this Agreement, the same may be executed in two or more
counterparts (including by facsimile signature), each of which shall be deemed
to be an original and the same agreement.
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15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, Pameco Georgia and Pameco Delaware have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
PAMECO ACQUISITION CORPORATION
By: /S/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
PAMECO CORPORATION
By: /S/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Tile: Chief Executive Officer
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