EXHIBIT 3.27
Delaware PAGE 1
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 MRM AMERICA HOLDING CORP.", A DELAWARE CORPORATION,
WITH AND INTO "GERDAU USA INC." UNDER THE NAME OF "GERDAU USA INC.", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE TWENTY-NINTH DAY OF SEPTEMBER, A.D. 2003,
AT 12:05 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
Harriet Smith Windsor
------------------------------------------------
Harriet Smith Windsor, Secretary of State
2166817 8100M AUTHENTICATION: 2662435
030625308 DATE: 09-30-03
CERTIFICATE OF MERGER
OF
GERDAU MRM AMERICA HOLDING CORP.
WITH AND INTO
GERDAU USA INC.
Pursuant to Title 8, Section 251 of the Delaware General Corporation Law
("DGCL"), the undersigned corporation hereby certifies to the following facts
relating to the merger of Gerdau MRM America Holding Corp, a Delaware
corporation, with and into Gerdau USA Inc, a Delaware corporation:
FIRST: The name and state of incorporation of each of the constituent
corporations are Gerdau USA Inc., a Delaware corporation, and Gerdau MRM America
Holding Corp., a Delaware corporation.
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with Section 251 of the DGCL.
THIRD: The name of the surviving corporation is Gerdau USA Inc.
FOURTH: The Certificate of Incorporation of Gerdau USA Inc. shall be the
Certificate of Incorporation of the surviving corporation.
FIFTH: The merger is to become effective upon the filing of this
Certificate of Merger with the Secretary of State of the State of Delaware.
SIXTH: An executed copy of the Agreement and Plan of Merger is on file at
5100 W. Lemon Street, Suite 312, Tampa, FL 33609, the place of business of the
surviving corporation.
SEVENTH: A 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 corporations.
[signatures follow on next page]
IN WITNESS WHEREOF, said surviving corporation has caused this
certificate to be signed by an authorized officer as of the 29 day of September
, 2003.
GERDAU USA INC.
By: Tom J. Landa
------------------------------------
Tom J. Landa, Vice President
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AGREEMENT AND PLAN OF MERGER
BETWEEN
GERDAU MRM AMERICA HOLDING CORP.,
A DELAWARE CORPORATION
AND
GERDAU USA INC.,
A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement", by and between Gerdau
MRM America Holding Corp., a Delaware corporation ("MRM America"), and Gerdau
USA Inc., a Delaware corporation ("GUSA"), is made as of the 26th day of
September, 2003.
WITNESSETH:
WHEREAS, each of MRM America and GUSA desire hereby to set forth the terms
and conditions upon which MRM America shall merge with and into GUSA (the
"Merger"), following which GUSA shall be the surviving corporation (sometimes
hereinafter in such capacity, the "Survivor"); and
WHEREAS, Section 251 of the General Corporation Law of the State of
Delaware (the "DGCL") authorizes the merger of two or more Delaware
corporations; and
WHEREAS, the Board of Directors of MRM America has (i) approved this
Agreement and the consummation of the Merger, and (ii) caused this Agreement to
be submitted to the sole shareholder of Co-Steel for approval; and
WHEREAS, the Board of Directors of GUSA has (i) approved this Agreement and
the consummation of the Merger, and (ii) caused this Agreement to be submitted
to the sole shareholder of GUSA for approval; and
WHEREAS, the sole shareholder of MRM America and the sole shareholder of
GUSA has 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:
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ARTICLE I
THE MERGER
Section 1.01 - The Merger
(a) Pursuant to the terms of this Agreement, MRM America shall merge with
and into GUSA. GUSA 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 execution and filing of the
Merger Certificate with the Secretary of State of the State of Delaware (the
"Effective Time").
(b) At the Effective Time, MRM America shall be merged with and into GUSA,
whereupon the separate existence of MRM America shall cease, and GUSA shall be
the surviving entity of the Merger.
(c) GUSA 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 USA Inc.
Section 2.02 - Certificate of Incorporation
The Certificate of Incorporation of GUSA 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 GUSA and
MRM America, and all property, real, personal and mixed, and all debts due to
each of GUSA and MRM America, as well as all other things and causes of action
belonging to each of GUSA and MRM America shall be vested in GUSA as the
Survivor, and shall thereafter be the property of the Survivor.
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Section 3.02 - Assumption
At the Effective Time, GUSA, as the Survivor, shall be liable for all of
the liabilities and obligations of MRM America.
ARTICLE IV
TREATMENT OF SHARES OF MRM AMERICA AND GUSA
Section 4.01 - Cancellation of Shares of Stock of MRM America
At the Effective Time, each share of stock of MRM America 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 GUSA
At the Effective Time, each share of stock of GUSA outstanding immediately
prior to the Merger shall, by virtue of the Merger and without any action on the
part of the holder thereof, be unaffected by the Merger and shall remain
outstanding as a share of stock in GUSA.
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 MRM America or the sole shareholder of GUSA, by mutual written
consent of the Boards of Directors of MRM America and GUSA.
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
hereto.
Section 5.03 - Amendment
The parties hereto, by mutual consent of the Board of Directors of MRM
America and the Board of Directors of GUSA, 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 MRM America and the sole shareholder of GUSA but not later than the Effective
Time; provided, however, that no such amendment, modification or supplement that
has not been adopted and approved by the sole shareholder of MRM America and the
sole shareholder of GUSA shall be inconsistent with the provisions of the DGCL.
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ARTICLE VI
COVENANTS OF MRM AMERICA
Section 6.01 - Covenants of MRM America
If at any time GUSA 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 MRM
America, or otherwise to carry out the provisions hereof, the proper
representatives of MRM America 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 MRM America
Upon or after the Effective Time, such persons as shall be authorized by
the Board of Directors of GUSA shall be authorized to execute, acknowledge,
verify, deliver, file and record,. for and in the name of MRM America, 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,
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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]
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IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Merger to be executed as of the date first above written.
GERDAU MRM AMERICA HOLDING CORP.
By: Garry Leach
-------------------------------------------
Garry Leach, President
GERDAU USA INC.
By: Tom J. Landa
-------------------------------------------
Tom J. Landa, Vice President
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CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GERDAU USA INC.
WITH AND INTO
FLS HOLDINGS INC.
Pursuant to Section 253 of the
General Corporation of Law of the State of Delaware
Gerdau USA Inc., a Delaware corporation ("Gerdau USA"), does hereby certify
to the following facts relating to the merger (the "Merger") of Gerdau USA with
and into FLS HOLDINGS INC., a Delaware corporation ("FLS"), with FLS remaining
as the surviving corporation:
FIRST: Gerdau USA is incorporated pursuant to the General Corporation Law
of the State of Delaware (the "DGCL"). FLS is incorporated pursuant to the DGCL.
SECOND: Gerdau USA owns all of the outstanding shares of each class of
capital stock of FLS.
THIRD: The Board of Directors of Gerdau USA, by the resolutions duly
adopted on October 18, 2002 and attached hereto and incorporated herein by
reference as ANNEX 1, determined to merge Gerdau USA with and into FLS pursuant
to Section 253 of the DGCL.
FOURTH: FLS shall be the surviving corporation of the Merger.
FIFTH: Upon the effective date of the Merger, the name of FLS, as the
surviving corporation in the Merger, shall be changed to "Gerdau USA Inc."
SIXTH: The certificate of incorporation of FLS as in effect immediately
prior to the Merger shall be amended and restated as provided in Exhibit A of
the aforesaid resolutions of
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the Board of Directors of Gerdau USA, and as so amended and restated shall be
the certificate of incorporation of the surviving corporation.
SEVENTH: The Merger has been approved by the unanimous written consent of
stockholders of Gerdau USDA in accordance with Section 228 of the DGCL.
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IN WITNESS WHEREOF, Gerdau USA has caused this Certificate of Ownership and
Merger to be executed by its duly authorized officer this 18th day of October,
2002. GERDAU USA INC.
By: /s/ Glen A. Beeby
-----------------------------------------
Name: Glen A. Beeby
Office: Vice-President and Secretary
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ANNEX 1
BOARD RESOLUTIONS
OCTOBER 18, 2002
WHEREAS, Gerdau USA Inc., a Delaware corporation ("Gerdau USA"), owns all
of the outstanding shares of the capital stock of FLS HOLDINGS INC., a Delaware
corporation ("FLS"); and
WHEREAS, the Board of Directors of Gerdau USA has deemed it advisable that
Gerdau USA be merged with and into FLS pursuant to Section 253 of the General
Corporation Law of the State of Delaware;
NOW, THEREFORE, BE IT AND IT HEREBY IS
RESOLVED, that Gerdau USA be merged with and into FLS (the "Merger") such
that FLS is the surviving corporation; and it is further
RESOLVED, that by virtue of the Merger and without any action on the part
of the holder thereof, each then outstanding share of Common Stock, par value
$0.01 per share, of Gerdau USA ("Gerdau USA Common Stock") shall be converted
into and shall automatically become one share of Common Stock, par value $0.01
per share, of FLS, as surviving corporation ("FLS Common Stock"), held by the
person who was the holder of such share of Gerdau USA Common Stock immediately
prior to the Merger; and it is further
RESOLVED, that by virtue of the Merger and without any action on the part
of the holder thereof, each then outstanding share of capital stock of FLS shall
be cancelled and no consideration shall be issued in respect thereof; and it is
further.
RESOLVED, that upon the effective date of the Merger, the name of FLS, as
the surviving corporation in the Merger, shall be changed to "Gerdau USA Inc."
as provided in Section 253 of the General Corporation Law of the State of
Delaware; and it is further
RESOLVED, that upon the effective date of the Merger, the certificate of
incorporation of FLS as in effect immediately prior to the Merger shall be
amended and restated as provided in Exhibit A, attached hereto and incorporated
herein by reference, and as so amended, shall be the certificate of incorporated
of the surviving corporation in the Merger; and it us further
RESOLVED, that the proper officers of Gerdau USA be and they hereby are
authorized and directed to make, execute and acknowledge, in the name and under
the corporate seal of Gerdau USA, a certificate of ownership and merger for the
purpose of effecting this Merger and to file the same in the office of the
Secretary of State of the State of Delaware, and to do all other acts and things
that may be necessary to carry out and effectuate the purpose and intent of the
resolutions relating to the Merger.
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATION OF INCORPORATION
OF
FLS HOLDINGS, INC.
ARTICLE 1. NAME
The name of this Corporation is Gerdau USA Inc. (the
"Corporation").
ARTICLE 2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at
1209 Orange Street, in the city of Wilmington, County of New Castle, in the
State of Delaware. The registered agent of the Corporation at such address shall
be The Corporation Trust Company.
ARTICLE 3. PURPOSE AND POWERS
The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the Tate of Delaware. The Corporation shall have all power
necessary or convenient to the conduct, promotion or attainment of such acts and
activities.
ARTICLE 4. CAPITAL STOCK
4.1 CLASSES OF STOCK
The total number of shares of stock which the Corporation
shall have authority to issue is eight thousand five hundred (8,500) shares,
consisting of the following classes: (A) one thousand (1,000) shares of common
stock, par value $0.01 per share; (B) five thousand (5,000) shares of Class A
Common Stock, par value $58,000 per share ((A) and (B) referred to in this
Amended and Restated Certificate of Incorporation collectively, as "Common
Stock") and (C) two thousand five hundred (2,500) shares of Preferred Stock, par
value $0.01 per share. The Preferred Stock may be issued from time to time in
one or more or series as provided in Section 4.4 hereof.
4.2 COMMON STOCK
4.2.1 RELATIVE RIGHTS
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The Common Stock shall be subject to all of the rights,
privileges, preferences and priorities of the Preferred Stock as set forth in
this Certificate of Incorporation or in any share of Common Stock shall have the
same relative rights as and be identical in all respects to all the other shares
of Common Stock.
4.3 DIVIDENDS
Whenever there shall have been paid, or declared and set aside
for payment, to the holders of shares of any class or series of stock having
preference over the Common Stock as to the payment of dividends, the full amount
of dividends and of sinking fund or retirement payments, if any, to which such
holders are respectively entitled in preference to Common Stock, then dividends
may be paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and, as and if declared by the
Board of Directors of the Corporation.
4.3.1 DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of
the Corporation, whether voluntary or involuntary, the holders of the Common
Stock, and holders of any class or series of stock entitled to participate
therewith, in whole or in part, as to the distribution of assets in such event,
shall become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or provided for
payment of all debts and liabilities of the Corporation and after the
Corporation shall have paid, or set aside for payment, to the holders of any
class or series of stock having preference over the Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
4.3.2 VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to
attend all special and annual meetings of the stockholders of the Corporation
and vote share for share and without regard to class, together with the holders
of all other classes of stock entitled to attend such meeting and to vote
(except any class of series of stock having special voting rights), and to cast
one vote for each outstanding share of Common Stock.
4.4 PREFERRED STOCK
The Board is hereby expressly authorized, subject to
limitations prescribed shares to be included in each such series, to fix the
powers (including voting powers, if any), designations, preferences and
relative, participating, optional or other special rights of the shares of each
such series and to fix the qualifications, limitations or restrictions thereof
(including limitations on or restrictions in voting rights).
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4.5 SPECIAL MEETING
Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statue, may be called (a) by the Board
on its own behalf or one or more officers of the Corporation as provided in the
bylaws or (b) by stockholders of the Corporation upon the written request of the
holders of at least a majority of the Common Stock of the Corporation
outstanding.
4.6 ACTION WITHOUT A MEETING
Any action required or permitted to be taken at stockholders'
meeting may be taken without a meeting, without prior notice an without a vote,
if the action is taken by persons who would be entitled to vote at a meeting and
who hold shares having voting power equal to not less than the minimum number of
votes of each class or series that would be necessary to authorize or take the
action at a meeting at which all shares of each class or series entitled to vote
were present and voted. The action must be evidenced by one or more written
consents describing the action taken, signed by the stockholders entitled to
take action without a meeting, and delivered to the Corporation in the manner
prescribed by the General Corporation Law of the State of Delaware for inclusion
in the minute book. No consent shall be effective to take the corporate action
specified unless the number of consents required to take such action are
delivered to the Corporation within 60 days of the delivery of the
earliest-dated consent. Written notice of the action taken shall be given in
accordance with the General Corporation Law of the State of Delaware to all
stockholders who do not participate in taking the action who would have been
entitled to notice if such action had been taken at a meeting having a record
date on the date that written consents signed by a sufficient number of holders
to take that action were delivered to the Corporation.
ARTICLE 5. BOARD OF DIRECTORS
5.1 NUMBER; ELECTION
The number of directors of the Corporation shall be five.
Unless and except to the extent that the bylaws of the Corporation shall
otherwise require, the election of directors of the Corporation need not be by
written ballot.
5.2 MANAGEMENT OF BUSINESS AND AFFAIRS OF THE CORPORATION
The business and affairs of the Corporation shall be managed
by or under the direction of the Board. Except as otherwise provided in this
Certificate of Incorporation, each director of the Corporation shall be entitled
to one vote per director on all matters voted or acted upon by the Board.
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5.3 VACANCIES; RESIGNATION; REMOVAL
Vacancies on the Board may be filled only by the affirmative
vote of a majority of the directors then in office, even if less than a quorum
exists, or by a sole remaining director. Each director so chosen shall hold
office until the next annual meeting of the stockholders, and until such
director's successor is elected and qualified, or until the director's earlier
death, resignation or removal.
A director may resign at any time upon written notice to the
Corporation, and the resignation shall take effect at the time it specifies,
without any need for acceptance by the Board. In the event that one or more
directors resigns from the Board, effective at a future date, a majority of the
directors left in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, with the vote thereon to take effect when
such resignation or resignations becomes effective. A director may only be
removed upon the affirmative vote of at least a majority of the then-outstanding
shares of stock of the Corporation entitled to vote in the election of such
director.
5.4 LIMITATION OF LIABILITY
No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that this provision shall not eliminate or limit
the liability of a director (a) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (c)
under Section 174 of the General Corporation Law of the State of Delaware or (d)
for any transaction from which the director derived an improper personal
benefit. Any repeal or modification of this Section 5.4 shall be prospective
only and shall not adversely affect an right or protection of, or any limitation
of the liability of, a director of the Corporation existing at, or arising out
of facts or incidents occurring prior to, the effective date of such repeal or
modification.
ARTICLE 6. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred
by the General Corporation Law of the State of Delaware, the Board of Directors
of the Corporation is expressly authorized and empowered to adopt, amend and
repeal the bylaws of the Corporation. The bylaws of the Corporation may be
adopted, amended or repealed by the stockholders of the Corporation only upon
the affirmative vote of at least a majority of the voting power of all the
then-outstanding shares of Common Stock of the Corporation.
ARTICLE 7. RESERVATION OF RIGHT TO AMEND CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time, and from time
to time, to amend, alter, change, or repeal any provision contained in this
Certificate of Incorporation, and other provisions authorized by the laws of the
State of Delaware, at the time in force may be added or inserted in the manner
now or hereafter prescribed by law; and all rights, preferences, and
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privileges of any nature conferred upon stockholders, directors or any other
persons by and pursuant to this Certificate of Incorporation in its present form
or an hereafter amended are granted subject to the rights reserved in this
ARTICLE 7.
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