EXHIBIT 3.7
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
CO-STEEL RARITAN, INC.
Pursuant to the provisions of N.J.S.A. Section 14A:9-5(3), the undersigned does
hereby amend and restate the Certificate of Incorporation of Co-Steel Raritan,
Inc. (the "Corporation") in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is "Co-Steel Raritan, Inc."
ARTICLE II
PURPOSE
The purpose for which this Corporation is organized is to engage is lawful act
or activity within the purposes for which corporations may be organized under
N.J. S.A. 14A:1-1 et seq.
ARTICLE III
REGISTERED AGENT AND ADDRESS
The name of the Corporation's current registered agent is Louis F. Hagan. The
address of the Corporation's current registered office is c/o Co-Steel Raritan,
Inc., 225 Elm Street, P.O. Box 309, Perth Amboy, New Jersey 08862.
ARTICLE IV
CAPITAL STOCK
The aggregate number of shares which the Corporation shall have the authority to
issue is One Thousand (1,000) shares of Common Stock, no par value per share.
ARTICLE V
BOARD OF DIRECTORS
The current members of the Corporation's Board of Directors and their addresses
are:
Terry G. Newman
Co-Steel Inc.
Hopkins Street South
Whitby, ON L1N 5T1
Lorie Waisberg
Co-Steel Inc.
Hopkins Street South
Whitby, ON L1N 5T1
Andy W. Boulallger
Co-Steel Inc.
Hopkins Street South
Whitby, ON L1N 5T1
Louis F. Hagan
Co-Steel Raritan, Inc.
225 Elm Street
Perth Amboy, NJ 08861
C. Kenneth Shank
Wileutt, Goldman & Spitzer, P,A.
90 Woodbridge Center Drive
Woodbridge, NJ 07095-9811
ARTICLE VI
DURATION
The duration of the Corporation is perpetual.
ARTICLE VII
LIMITATION OF LIABILITY; INDEMNIFICATION
A director or officer shall not be personally liable to the Corporation or its
shareholders for damages for breach of any duty owed to the Corporation or its
shareholders, except that this provision shall not relieve a director or officer
from liability for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the Corporation or its shareholders,
(b) not in good faith or involving a knowing violation of law, or (c) resulting
in receipt by such person of an improper personal benefit, In this regard the
Corporation shall indemnify a director or officer against his or her expenses in
connection with any proceeding by or ill the right of the Corporation to procure
a judgment in its favor which involves the director or officer by reason of his
or her being or having been such a director or officer, if he or she acted In
goad faith and in a manner he or she behaved to be in, or not opposed to, the
best interest of the Corporation.
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation was
adopted by the consent of its sole shareholder on April 19, 2002.
Date of Execution:
April 19, 2002
CO-STEEL RARITAN, INC.
By: /s/Terry G. Newman
----------------------
Terry G. Newman
President
CERTIFICATE OF ADOPTION
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CO-STEEL RARITAN, INC.
Pursuant to Section, 14A:9-5(5), Corporations, General, of the New Jersey
statutes, the undersigned corporation hereby executes the following certificate:
The undersigned, Terry G. Newman, President of Co-Steel Raritan, Inc., a New
Jersey corporation (the "Corporation"), hereby certifies as follows:
1. The name of the Corporation is Co-Steel Raritan, Inc.
2. The attached Amended and Restated Certificate of Incorporation of the
Corporation was duly adapted on April 19, 2002,
3. The manner by which the Amended and Restated Certificate of Incorporation was
adopted was by the unanimous written consent of the Corporation's sole
shareholder.
4. Upon the Amended and Restated Certificate of Incorporation becoming
effective, all shares of all classes of the Corporation's stock, all of which
are held by the sole shareholder, shall be converted into and exchanged for 100
shares of the Corporation's Common Stock, which shares shall represent 100
percent of the Corporation's issued and outstanding shaves of capital stock
following such exchange.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned on this 24th
day of April, 2002.
CO-STEEL RARITAN, INC.
By: /s/Terry G. Newman
------------------------------
Terry G. Newman
President
Mail to:
REG - C - EA STATE OF NEW JERSEY P.O. Box 308
(02-02) DIVISIONS OF REVENUE Trenton, NJ 08625
BUSINESS ENTITY AMENDMENT FILING
- --------------------------------------------------------------------------------
Fill out the applicable information below and sing in the space provided. Please
note that once filed, the information on this page is considered public. Refer
to the instructions for delivery/return options, filing fees and field-by-field
requirements. Remember to remit the appropriate fee amount for this filing. Use
attachments if more space is required for any field, or if you wish to add
articles for the public record.
- --------------------------------------------------------------------------------
A. Business Name: Co-Steel Raritan, Inc.
B. Statutory Authority for Amendment: 14A:9-4(3) See Instructions for List
of Statutory Authorities)
C. ARTICLE I OF THE CERTIFICATE of Incorporation XX Formation o,
Registration o, Authority o, Limited Partnership o, of the
above-referenced business is amended to read as follows: (Use
attachment if more space is required)
The name of the Corporation is "Gerdau Ameristeel Perth Amboy Inc."
D. Other Provisions: (Optional)
E. Date Amendment was Adopted: January 9, 2003.
F. CERTIFICATION OF CONSENT/VOTING: (If required by one of the laws cited
below, certify consent/voting) N.J.S.A. 14A:9-1 et seq. or N.J. S.A.
15A9-1 et seq., Profit and Non-Profit Corps. Amendment by the
Incorporators
o Amendment was adopted by unanimous consent of the Incorporators.
N.J.S.A. 14A:9-2(4) and 14A:9-4(3), Profit Corps., Amendment by the Shareholders
XX Amendment was adopted by the Directors and thereafter adopted by the
Shareholders
Number of shares outstanding at the time the amendment was adopted 1,000, and
total number of shares entitled to vote hereon 1000. If applicable list the
designation and number of each class/series of shares entitled to vote: List
votes for and against and if applicable, show the vote by designation and number
of each class/series of shares entitled to vote:
Number of Shares Voting for Amendment Number of Shares Voting Against Amendment
- ------------------------------------- -----------------------------------------
1000 0
** If the amendment provides for the exchange, reclassification, or cancellation
of issued shares, attach a statement indicating the manner in which same shall
be effected.
N.J.S.A. 15A:9-4, Non-profit Corps., Amendment by Members or Trustees The
corporation has o does not have o members. If the corporation has members,
indicate the number entitled to vote _______, and how voting was accomplished:
o At a meeting of the corporation. Indicate the number VOTING FOR _____ and
VOTING AGAINST _______. If any class(es) of members may vote as a class, set
forth the number of members in each class, the votes for and against by class,
and the number present at the meeting:
Class Number of Members Voting for Amendment Voting Against Amendments
----- ----------------- -------------------- -------------------------
o Adoption was by unanimous written consent without a meeting.
If the corporation does not have members, indicate the total number of Trustees
___________, and how voting was accomplished:
o At a meeting of the corporation. The number of Trustees VOTING FOR _________
and VOTING AGAINST __________.
o Adoption was by unanimous written consent without a meeting.
G. AGENT/OFFICE CHANGE___________________________________________
________________________________________________________________________________
New Registered Agent:___________________________________________________________
Registered Office: (Must be a NJ street address)
Street____________________________________City____________________Zip___________
H. SIGNATURE(S) FOR THE PUBLIC RECORD (See Instructions for Information on
Signature Requirements)
________________________________________________________________________________
Signature /s/Phillip E. Casey Title President Date: 1/9/2003
------------------- --------------- -----------
Phillip E. Casey
________________________________________________________________________________
Signature ___________________ Title _______________ Date: ___________
The above-signed certifies that the business entity has complied with all
applicable NJ statutory filing requirements.
STATE OF NEW JERSEY
DEPARTMENT OF TREASURY
FILING CERTIFICATION (CERTIFIED COPY)
GERDAU AMERISTEEL PERTH AMBOY INC.
I, the Treasurer of the State of New Jersey, do hereby certify, that
the above named business did file and record in this department the below listed
document(s) and that the foregoing is a true copy of the Certificate of Merger
Filed in this office September 30, 2003 as the same is taken from and compared
with the original(s) filed in this office on the date set forth on each
instrument and now remaining on file and of record in my office.
IN TESTIMONY WHEREOF, I have
hereunto set my hand and affixed
my Official Seal at Trenton, this
1st day of October, 2003
John E. McCormac
John E. McCormac, CPA
State Treasurer
FILED
September 30, 2003
State Treasurer
CERTIFICATE OF MERGER
OF
GERDAU AMERISTEEL DISTRIBUTION US INC.
WITH AND INTO
GERDAU AMERISTEEL PERTH AMBOY INC.
Pursuant to Title 8, Section 252 of the Delaware General Corporation
Law ("DGCL") and Title 14A:10 of the New Jersey Statutes Annotated ("N.J.S.A."),
the undersigned corporation hereby certifies to the following facts relating to
the merger of Gerdau Ameristeel Distribution Inc., a Delaware corporation, with
and into Gerdau Ameristeel Perth Amboy Inc., a New Jersey corporation:
FIRST: The name and state of incorporation of each of the constituent
corporations are Gerdau Ameristeel Perth Amboy Inc., a New Jersey corporation
and Gerdau Ameristeel Distribution US Inc., a Delaware corporation.
SECOND: The Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations
pursuant to Section 252 of the DGCL and Title 14A:10 of the N.J.S.A. A copy of
the executed Agreement and Plan of Merger is attached hereto as Exhibit A.
THIRD: The name of the surviving corporation is Gerdau Ameristeel Perth
Amboy Inc.
FOURTH: The Certificate of Incorporation of Gerdau Ameristeel Perth
Amboy Inc. shall be the Certificate of Incorporation of the surviving entity.
FIFTH: The shareholders of each of the constituent corporations
approved of the Agreement and Plan of merger on September 29, 2003. The number
of shares of each constituent corporation entitled to vote on the merger, and
the number of shares of each constituent corporation voted for and against the
Agreement and Plan of Merger are as set forth below:
Corporation Number of Shares Entitled Number of Shares voted in Number of Shares Voted
to Vote Favor Against
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Gerdau Ameristeel 100 100 0
Distribution US Inc.
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Gerdau Ameristeel Perth Amboy 100 100 0
Inc.
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
SIXTH: The merger is to become effective upon the later to occur of (i)
the filing of this Certificate of Merger with the Secretary of State of the
State of Delaware and (ii) the filing of this Certificate of Merger with the
Secretary of State of the State of New Jersey.
SEVENTH: An executed copy of the Agreement and Plan of Merger is on
file at 225 Elm Street, Perth Amboy, New Jersey 08862, the place of business of
the surviving corporation.
EIGHTH: An executed copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation on request, without cost, to any
stockholder of the constituent corporation.
NINTH: The surviving corporation agrees that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of the surviving corporation arising from this merger, including any
suit or other proceeding to enforce the rights of any stockholders as determined
in appraisal proceedings pursuant to the provisions of Section 262 of the
Delaware General Corporation laws, and irrevocably appoints the Secretary of
State of Delaware as its agent to accept services of process in any suit or
proceeding. The Secretary of State shall mail any such process to the surviving
corporation at 225 Elm Street, Perth Amboy, New Jersey 08862.
[signatures follow on next page]
IN WITNESS WHEREOF, each of the constituent corporation has caused this
certificate to be signed by an authorized officer as of the 29th day of
September, 2003
GERDAU AMERISTEEL PERTH AMBOY INC.
By: Tom Landa
-----------------------------
Tom J. Landa
Executive Vice President,
Finance & Administration
GERDAU AMERISTEEL DISTRIBUTION
US INC.
By: Tom Landa
-----------------------------
Tom J. Landa
Executive Vice President,
Finance & Administration
AGREEMENT AND PLAN OF MERGER
BETWEEN
GERDAU AMERISTEEL DISTRIBUTION INC.,
A DELAWARE CORPORATION
AND
GERDAU AMERISTEEL PERTH AMBOY INC.,
A NEW JERSEY CORPORATION
This AGREEMENT AND PLAN OF MERGER (the "Agreement"), by and between
Gerdau Ameristeel Distribution Inc., a Delaware corporation ("Distribution US"),
and Gerdau Ameristeel Perth Amboy Inc., a New Jersey corporation ("Perth
Amboy"), is made as of the 29th day of September, 2003.
W I T N E S S E T H
WHEREAS, each of Distribution US and Perth Amboy desire hereby to set
forth the terms and conditions upon which Distribution US shall merge with and
into Perth Amboy (the "Merger"), following which Perth Amboy shall be the
surviving corporation (sometimes hereinafter in such capacity, the "Survivor");
and
WHEREAS, Section 252 of the General Corporation Law of the State of
Delaware (the "DGCL") authorizes the merger of a Delaware corporation and a
foreign corporation, and Title 14A:10-7 of the New Jersey Statutes Annotated
("NJSA") authorizes the merger of a New Jersey corporation and a foreign
corporation; and
WHEREAS, the Board of Directors of Distribution US has (i) approved
this Agreement and the consummation of the Merger, and (ii) caused this
Agreement to be submitted to the sole shareholder of Distribution US for
approval; and
WHEREAS, the Board of Directors of Perth Amboy has (i) approved this
Agreement and the consummation of the Merger, and (ii) caused this Agreement to
be submitted to the sole shareholder of Perth Amboy for approval; and
WHEREAS, the sole shareholder of Distribution US and the sole
shareholder of Perth Amboy have each approved of the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.01 - The Merger
(a) Pursuant to the terms of this Agreement, Distribution US shall
merge with and into Perth Amboy. Perth Amboy shall cause to be filed a
Certificate of Merger (the "Merger Certificate") with the Office of the
Secretary of State of the State of Delaware. The Merger will take effect upon
the later to occur of (i) the filing of the Merger Certificate with the
Secretary of State of the State of Delaware and (ii) the filing of the Merger
Certificate with the Secretary of State of the State of New Jersey (the
"Effective Time").
(b) At the Effective Time, Distribution US shall be merged with and
into Perth Amboy, whereupon the separate existence of Distribution US shall
cease, and Perth Amboy shall be the surviving entity of the Merger.
(c) Perth Amboy as the surviving corporation shall continue its
existence as a corporation under the laws of the State of Delaware.
ARTICLE II
THE SURVIVOR
Section 2.01 - The Survivor
The name of the surviving corporation is Gerdau Ameristeel Perth Amboy
Inc.
Section 2.02 - Certificate of Incorporation
The Certificate of Incorporation of Perth Amboy in effect immediately
prior to the Effective Time shall be the Certificate of Incorporation of the
Survivor unless and until duly amended as provided therein or by applicable law.
ARTICLE III
TRANSFER OF ASSETS AND LIABILITIES
Section 3.01 - Transfer and Conveyance
At the Effective Time, all of the rights, privileges and powers of
Perth Amboy and Distribution US, and all property, real, personal and mixed, and
all debts due to each of Perth Amboy and Distribution US, as well as all other
things and causes of action belonging to each of Perth Amboy and Distribution US
shall be vested in Perth Amboy as the Survivor, and shall thereafter be the
property of the Survivor.
Section 3.02 Assumption
At the Effective Time, Perth Amboy, as the Survivor, shall be liable
for all of the liabilities and obligations of Distribution US.
ARTICLE IV
TREATMENT OF SHARES OF DISTRIBUTION US AND PERTH AMBOY
Section 4.01 - Cancellation of Shares of Stock of Distribution US
At the Effective Time, each share of stock of Distribution US
outstanding immediately prior to the Merger shall, by virtue of the Merger and
without any action on the part of the holders thereof, be cancelled.
Section 4.02 - Shares of Stock of Perth Amboy
At the Effective Time, each share of stock of Perth Amboy outstanding
immediately prior to the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, by unaffected by the Merger and shall
remain outstanding as a share of stock in Perth Amboy.
ARTICLE V
AMENDMENT, TERMINATION
Section 5.01 - Termination
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time, whether before or after approval by the sole
shareholder of Distribution US or the sole shareholder of Perth Amboy, by mutual
written consent of the Boards of Directors of Distribution US and Perth Amboy.
Section 5.02 - Effect of Termination
If this Agreement is terminated pursuant to Section 5.01, this
Agreement shall become void and of no effect with no liability on the part of
either party thereto.
Section 5.03 - Amendment
The parties hereto, by mutual consent of the Board of Directors of
Distribution US and the Board of Directors of Perth Amboy, may amend, modify or
supplement this Agreement in such manner as may be agreed upon by them in
writing at any time before or after adoption and approval of this Agreement by
the sole shareholder of Distribution US and the sole shareholder of Perth Amboy
but not later than the Effective time; provided, however, that no such
amendment, modification or supplement that has not been adopted and approval by
the sole shareholder of Distribution US and the sole shareholder of Perth Amboy
shall be inconsistent with the provisions of the DGCL and the NJPS.
ARTICLE VI
COVENANTS OF DISTRIBUTION US
Section 6.01 - Covenants of Distribution US
If at any time Perth Amboy shall consider or be advised that any
further assignment, conveyance or assurance is necessary or advisable to vest,
perfect, or confirm of record in the Survivor the title to any property or right
of Distribution US, or otherwise to carry out the provisions hereof, the
property representatives of Distribution US as of the Effective Time shall
execute and deliver any and all proper deeds, assignments, and assurances and do
all things necessary or proper to vest, perfect or convey title to such property
or right in the Survivor, and otherwise to carry out the provisions hereof.
Section 6.02 - Authorization of Distribution US
Upon or after the Effective Time, such persons as shall be authorized
by the Board of Directors of Perth Amboy shall be authorized to execute,
acknowledge, verify, deliver, file and record, for and in the name of
Distribution US, any and all documents and instruments and shall do and perform
any and all acts required by applicable law which the Board of Directors deems
necessary or advisable, in order to effectuate the Merger and carry out the
transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
Section 7.01 - No Waivers
No failure or delay by any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 7.02 - Integration
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, written or oral, between and among the
parties with respect to the subject matter hereof. The parties acknowledge that
there are no written agreements, contracts, covenants, promises,
representations, warranties, inducements or understandings among them, with
respect to the subjects hereof, except this Agreement.
Section 7.03 - Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other party hereto.
Section 7.04 - Governing Law
This agreement shall in all respects, including all matters of
construction, validity and performance, be governed by, and construed in
accordance with, the law of the State of Delaware without regard to principles
of conflicts of law.
Section 7.05 - Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
agreement, and when executed shall be binding on the parties hereto.
Section 7.06 - Severability
In the event that one or more of the provisions of this Agreement shall
be invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
[signatures follow on next page]
IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Merger to be executed as of the date first above written.
GERDAU AMERISTEEL DISTRIBUTION INC.
By: Tom J. Landa
--------------------------------------------
Tom J. Landa
Executive Vice President, Finance &
Administration
GERDAU AMERISTEEL PERTH AMBOY INC.
By: Tom J. Landa
--------------------------------------------
Tom J. Landa
Executive Vice President, Finance &
Administration
DELAWARE
THE FIRST STATE
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MERGES:
"GERDAU AMERISTEEL DISTRIBUTION US INC.", A DELAWARE CORPORATION,
WITH AND INTO "GERDAU AMERISTEEL PERTH AMBOY INC." UNDER THE NAME OF
"GERDAU AMERISTEEL PERTH AMBOY INC.", A CORPORATION ORGANIZED AND EXISTING UNDER
THE LAWS OF THE STATE OF NEW JERSEY, AS RECEIVED AND FILED IN THIS OFFICE THE
THIRTIETH DAY OF SEPTEMBER, A.D. 2003, AT 11:22 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Harriet Smith Windsor
-----------------------------------------
Harriet Smith Windsor, Secretary of State
3710337 8100M AUTHENTICATION: 2664756
030628623 DATE: 10-01-03
State of Delaware
Secretary of State
Division of Corporations
Delivered 11:22 AM 09/30/2003
FILED 11:22 AM 09/30/2003
SRV 030628623 - 2341771 FILE
CERTIFICATE OF MERGER
OF
GERDAU AMERISTEEL DISTRIBUTION US INC.
WITH AND INTO
GERDAU AMERISTEEL PERTH AMBOY INC.
Pursuant to Title 8, Section 252 of the Delaware General Corporation
Law ("DGCL") and Title 14A:10 of the New Jersey Statutes Annotated ("N.J.S.A."),
the undersigned corporation hereby certifies to the following facts relating to
the merger of Gerdau Ameristeel Distribution Inc., a Delaware corporation, with
and into Gerdau Ameristeel Perth Amboy Inc., a New Jersey corporation:
FIRST: The name and state of incorporation of each of the constituent
corporations are Gerdau Ameristeel Perth Amboy Inc., a New Jersey corporation
and Gerdau Ameristeel Distribution US Inc., a Delaware corporation.
SECOND: The Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations
pursuant to Section 252 of the DGCL and Title 14A:10 of the N.J.S.A.
THIRD: The name of the surviving corporation is Gerdau Ameristeel Perth
Amboy Inc.
FOURTH: The Certificate of Incorporation of Gerdau Ameristeel Perth
Amboy Inc. shall be the Certificate of Incorporation of the surviving entity.
FIFTH: The shareholders of each of the constituent corporations
approved of the Agreement and Plan of merger on September 29, 2003. The number
of shares of each constituent corporation entitled to vote on the merger and the
number of shares of each constituent corporation voted for and against the
Agreement and Plan of Merger are as set forth below:
Corporation Number of Shares Entitled Number of Shares voted in Number of Shares Voted
to Vote Favor Against
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Gerdau Ameristeel 100 100 0
Distribution US Inc.
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Gerdau Ameristeel Perth Amboy 100 100 0
Inc.
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
SIXTH: The merger is to become effective upon the later to occur of (i)
the filing of this Certificate of Merger with the Secretary of State of the
State of Delaware and (ii) the filing of this Certificate of Merger with the
Secretary of State of the State of New Jersey.
SEVENTH: An executed copy of the Agreement and Plan of Merger is on
file at 225 Elm Street, Perth Ambly, New Jersey 08862, the place of business of
the surviving corporation.
EIGHTH: An executed copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation on request, without cost, to any
stockholder of the constituent corporation.
NINTH: The surviving corporation agrees that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of the surviving corporation arising from this merger, including any
suit or other proceeding to enforce the rights of any stockholders as determined
in appraisal proceedings pursuant to the provisions of Section 262 of the
Delaware General Corporation laws, and irrevocably appoints the Secretary of
State of Delaware as its agent to accept services of process in any suit or
proceeding. The Secretary of State shall mail any such process to the surviving
corporation at 225 Elm Street, Perth Amboy, New Jersey 08862.
[signatures follow on next page]
IN WITNESS WHEREOF, each of the constituent corporations has caused
this certificate to be signed by an authorized officer as of the 29th day of
September, 2003.
GERDAU AMERISTEEL PERTH AMBOY INC.
By: Tom Landa
------------------------------------------
Tom J. Landa
Executive Vice President, Finance &
Administration
GERDAU AMERISTEEL DISTRIBUTION US INC.
By: Tom Landa
------------------------------------------
Tom J. Landa
Executive Vice President, Finance &
Administration
AGREEMENT AND PLAN OF MERGER
BETWEEN
GERDAU AMERISTEEL DISTRIBUTION INC.,
A DELAWARE CORPORATION
AND
GERDAU AMERISTEEL PERTH AMBOY INC.,
A NEW JERSEY CORPORATION
This AGREEMENT AND PLAN OF MERGER (the "Agreement"), by and between
Gerdau Ameristeel Distribution Inc., a Delaware corporation ("Distribution US"),
and Gerdau Ameristeel Perth Amboy Inc., a New Jersey corporation ("Perth
Amboy"), is made as of the 29th day of September, 2003.
W I T N E S S E T H
WHEREAS, each of Distribution US and Perth Amboy desire hereby to set
forth the terms and conditions upon which Distribution US shall merge with and
into Perth Amboy (the "Merger"), following which Perth Amboy shall be the
surviving corporation (sometimes hereinafter in such capacity, the "Survivor");
and
WHEREAS, Section 252 of the General Corporation Law of the State of
Delaware (the "DGCL") authorizes the merger of a Delaware corporation and a
foreign corporation, and Title 14A:10-7 of the New Jersey Statutes Annotated
("NJSA") authorizes the merger of a New Jersey corporation and a foreign
corporation; and
WHEREAS, the Board of Directors of Distribution US has (i) approved
this Agreement and the consummation of the Merger, and (ii) caused this
Agreement to be submitted to the sole shareholder of Distribution US for
approval; and
WHEREAS, the Board of Directors of Perth Amboy has (i) approved this
Agreement and the consummation of the Merger, and (ii) caused this Agreement to
be submitted to the sole shareholder of Perth Amboy for approval; and
WHEREAS, the sole shareholder of Distribution US and the sole
shareholder of Perth Amboy have each approved of the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.01 - The Merger
(a) Pursuant to the terms of this Agreement, Distribution US shall
merge with and into Perth Amboy. Perth Amboy shall cause to be filed a
Certificate of Merger (the "Merger Certificate") with the Office of the
Secretary of State of the State of Delaware. The Merger will take effect upon
the later to occur of (i) the filing of the Merger Certificate with the
Secretary of State of the State of Delaware and (ii) the filing of the Merger
Certificate with the Secretary of State of the State of New Jersey (the
"Effective Time").
(b) At the Effective Time, Distribution US shall be merged with and
into Perth Amboy, whereupon the separate existence of Distribution US shall
cease, and Perth Amboy shall be the surviving entity of the Merger.
(c) Perth Amboy as the surviving corporation shall continue its
existence as a corporation under the laws of the State of Delaware.
ARTICLE II
THE SURVIVOR
Section 2.01 - The Survivor
The name of the surviving corporation is Gerdau Ameristeel Perth Amboy
Inc.
Section 2.02 - Certificate of Incorporation
The Certificate of Incorporation of Perth Amboy in effect immediately
prior to the Effective Time shall be the Certificate of Incorporation of the
Survivor unless and until duly amended as provided therein or by applicable law.
ARTICLE III
TRANSFER OF ASSETS AND LIABILITIES
Section 3.01 - Transfer and Conveyance
At the Effective Time, all of the rights, privileges and powers of
Perth Amboy and Distribution US, and all property, real, personal and mixed, and
all debts due to each of Perth Amboy and Distribution US, as well as all other
things and causes of action belonging to each of Perth Amboy and Distribution US
shall be vested in Perth Amboy as the Survivor, and shall thereafter be the
property of the Survivor.
Section 3.02 Assumption
At the Effective Time, Perth Amboy, as the Survivor, shall be liable
for all of the liabilities and obligations of Distribution US.
ARTICLE IV
TREATMENT OF SHARES OF DISTRIBUTION US AND PERTH AMBOY
Section 4.01 - Cancellation of Shares of Stock of Distribution US
At the Effective Time, each share of stock of Distribution US
outstanding immediately prior to the Merger shall, by virtue of the Merger and
without any action on the part of the holders thereof, be cancelled.
Section 4.02 - Shares of Stock of Perth Amboy
At the Effective Time, each share of stock of Perth Amboy outstanding
immediately prior to the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, by unaffected by the Merger and shall
remain outstanding as a share of stock in Perth Amboy.
ARTICLE V
AMENDMENT, TERMINATION
Section 5.01 - Termination
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time, whether before or after approval by the sole
shareholder of Distribution US or the sole shareholder of Perth Amboy, by mutual
written consent of the Boards of Directors of Distribution US and Perth Amboy.
Section 5.02 - Effect of Termination
If this Agreement is terminated pursuant to Section 5.01, this
Agreement shall become void and of no effect with no liability on the part of
either party thereto.
Section 5.03 - Amendment
The parties hereto, by mutual consent of the Board of Directors of
Distribution US and the Board of Directors of Perth Amboy, may amend, modify or
supplement this Agreement in such manner as may be agreed upon by them in
writing at any time before or after adoption and approval of this Agreement by
the sole shareholder of Distribution US and the sole shareholder of Perth Amboy
but not later than the Effective time; provided, however, that no such
amendment, modification or supplement that has not been adopted and approval by
the sole shareholder of Distribution US and the sole shareholder of Perth Amboy
shall be inconsistent with the provisions of the DGCL and the NJPS.
ARTICLE VI
COVENANTS OF DISTRIBUTION US
Section 6.01 - Covenants of Distribution US
If at any time Perth Amboy shall consider or be advised that any
further assignment, conveyance or assurance is necessary or advisable to vest,
perfect, or confirm of record in the Survivor the title to any property or right
of Distribution US, or otherwise to carry out the provisions hereof, the
property representatives of Distribution US as of the Effective Time shall
execute and deliver any and all proper deeds, assignments, and assurances and do
all things necessary or proper to vest, perfect or convey title to such property
or right in the Survivor, and otherwise to carry out the provisions hereof.
Section 6.02 - Authorization of Distribution US
Upon or after the Effective Time, such persons as shall be authorized
by the Board of Directors of Perth Amboy shall be authorized to execute,
acknowledge, verify, deliver, file and record, for and in the name of
Distribution US, any and all documents and instruments and shall do and perform
any and all acts required by applicable law which the Board of Directors deems
necessary or advisable, in order to effectuate the Merger and carry out the
transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
Section 7.01 - No Waivers
No failure or delay by any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 7.02 - Integration
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, written or oral, between and among the
parties with respect to the subject matter hereof. The parties acknowledge that
there are no written agreements, contracts, covenants, promises,
representations, warranties, inducements or understandings among them, with
respect to the subjects hereof, except this Agreement.
Section 7.03 - Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of the other
party hereto.
Section 7.04 - Governing Law
This agreement shall in all respects, including all matters of
construction, validity and performance, be governed by, and construed in
accordance with, the law of the State of Delaware without regard to principles
of conflicts of law.
Section 7.05 - Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
agreement, and when executed shall be binding on the parties hereto.
Section 7.06 - Severability
In the event that one or more of the provisions of this Agreement shall
be invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
[signatures follow on next page]
IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Merger to be executed as of the date first above written.
GERDAU AMERISTEEL DISTRIBUTION INC.
By: Tom Landa
------------------------------------------
Tom J. Landa
Executive Vice President, Finance &
Administration
GERDAU AMERISTEEL PERTH AMBOY INC.
By: Tom Landa
------------------------------------------
Tom J. Landa
Executive Vice President, Finance &
Administration