EXHIBIT 10.13
PLAN AND AGREEMENT OF AMALGAMATION
This agreement dated as of July 18, 1996, among American Craft
Brewing International Limited, a British Virgin Islands company ('Craft'), and
American Craft Brewing International Limited, a Bermuda company ('American
Brewing International' and together with Craft, the 'Constituent Companies').
WHEREAS, Craft is a company duly organized and existing under the
laws of the British Virgin Islands, having been incorporated on December 6,
1995;
WHEREAS, American Brewing International is a company duly
organized and existing under the laws of Bermuda, having been incorporated on
June 3, 1996; and
WHEREAS, the Boards of Directors of the parties hereto deem it
desirable, upon the terms and subject to the conditions herein stated, that
Craft be amalgamated with and into American Brewing International (the
'Amalgamation') and that American Brewing International be the surviving
corporation with the outstanding shares of capital stock of Craft, par value
US$1.00 per share (the 'Craft Shares'), converted into common shares of US$0.01
each in the capital of the Company (the 'ABI Shares'), of American Brewing
International and that all of the Craft Shares in existence prior to the
Amalgamation be canceled so that after the Amalgamation all of the outstanding
ABI Shares, other than directors' qualifying shares, will be owned by those who
prior to the Amalgamation owned all of the outstanding Craft Shares.
NOW THEREFORE, it is agreed as follows:
ARTICLE I
1.1 On the effective date of the Amalgamation, Craft and American
Brewing International shall amalgamate and continue as one
company, with American Brewing International as the surviving
corporation. The Constituent Companies shall make the
appropriate filings with the Registrar of Companies of Bermuda
and the Registrar of Companies of the British Virgin Islands.
1.2 Upon the effective date of the Amalgamation:
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(i) each then outstanding Craft Share shall, by virtue of the
Amalgamation and without any action on the part of the
holder thereof, be converted into an ABI Share;
(ii) each holder of a share certificate or certificates
representing Craft Shares immediately prior to the
effective date of the Amalgamation (each an 'Old Craft
Share Certificate'), upon surrender of such certificate or
certificates to American Brewing International after the
effective date of the Amalgamation, shall be entitled to
receive a share certificate or certificates representing
the number of ABI Shares equal to the number of Craft
Shares held by such holder immediately prior to the
effective date of the Amalgamation;
(iii) if any certificate representing ABI Shares is to be issued
in a name other than that in which an Old Craft Share
Certificate is registered, it shall be a condition of such
issuance that the certificate so surrendered shall be
properly endorsed or otherwise in proper form for transfer
and that the person requesting such issuance shall either
pay to American Brewing International or its transfer
agent any transfer or other taxes required by reason of
the issuance of certificates representing ABI Shares in a
name other than that of the registered holder of the Old
Craft Share Certificate surrendered, or establish to the
satisfaction of American Brewing International or its
transfer agent that such tax has been paid or is not
applicable; and
(iv) any and all ABI Shares issued and outstanding prior to
such effective date, including the 12,000 ABI Shares
issued to Peter W. H. Bordeaux, shall be canceled, and
shall be null and void.
ARTICLE II
2.1 Each record holder of the 2,000,000 issued and outstanding
Craft Shares shall be entitled to vote on this Agreement and
the Amalgamation as provided by the applicable laws of the
British Virgin Islands. The record holder of the 12,000 issued
and outstanding ABI Shares shall be entitled to vote on this
Agreement and the Merger as provided by the applicable laws of
Bermuda. If this Agreement is duly adopted by the requisite
votes of such members and is not terminated as contemplated by
Article VI, a Certificate of Amalgamation, executed in
accordance with the law of Bermuda, shall be filed with the
Registrar of Companies of Bermuda. The Amalgamation shall
become effective on the time and date specified in the
Certificate of Amalgamation issued by the Registrar of
Companies of Bermuda, referred to herein as the 'effective
date of the Amalgamation.'
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2.2 Each of Craft and American Brewing International represent
and warrant to each other that they are in good standing under
the laws of the British Virgin Islands and Bermuda,
respectively.
ARTICLE III
As of the effective date of the Amalgamation, the separate
existence of Craft shall cease; American Brewing International shall
thereupon possess all the rights, privileges, immunities and franchises,
of a public as well as a private nature of Craft, and all property,
real, personal and mixed and all debts due on whatever accounts,
including subscriptions to shares, and all other choses in action, and
each and every other interest of or belonging to or due to Craft shall
be deemed to be the rights, privileges, immunities, franchises,
property, debts and interests of American Brewing International without
further act or deed, and the title to any real estate, or any interest
therein, vested in Craft shall not revert or in any way be impaired by
reason of the Amalgamation; and American Brewing International shall
thenceforth be responsible and liable for all liabilities and
obligations of Craft, and any claim existing or action or proceeding
pending by or against Craft may be prosecuted as if the Amalgamation had
not taken place, or American Brewing International may be substituted in
its place. Neither the rights of creditors nor any liens upon the
property of Craft shall be impaired by the Amalgamation.
ARTICLE IV
The Memorandum of Amalgamation with respect to the Amalgamation
shall be deemed to be the Memorandum of Association of American Brewing
International and the Certificate of Amalgamation with respect to the
Amalgamation shall be deemed to be the Certificate of Incorporation of
American Brewing International. The Bye-Laws of American Brewing
International shall not be affected by the Amalgamation.
ARTICLE V
This Agreement may be supplemented or amended in any manner at
any time and from time to time before the issue of the Certificate of
Amalgamation by the Constituent Companies without any action by the
members of Craft or American Brewing International save with respect to
the terms of conversion set forth in clause 1.2 above. Any variation,
modification or amendment to this Agreement must be made in writing and
executed by the Constituent Companies. This Agreement may be terminated
and the Amalgamation abandoned at any time prior to the issuance by the
Registrar of Companies in Bermuda of a Certificate of Amalgamation by
action taken by the respective Boards of Directors of the Constituent
Companies.
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ARTICLE VI
The names and addresses of the directors of American Brewing
International after giving effect to the Amalgamation are as follows:
(i) John P. Beaudette
MHW, Ltd.
1165 Northern Boulevard
Manhasset, New York 11030
UNITED STATES;
(ii) Peter W. H. Bordeaux
One Galleria Boulevard
Metairie, Louisiana 70001
UNITED STATES;
(iii) Norman H. Brown, Jr.
277 Park Avenue
New York, New York 10172
UNITED STATES;
(iv) Federico Guillermo Cabo Alvarez
Pablo Neruda #2640, Suite 702
Guadalajara, Jalisco
MEXICO 44630;
(v) John Campbell
Appleby, Spurling & Kempe
Cedar House
41 Cedar Avenue
Hamilton HM EX
BERMUDA;
(vi) Wyndham H. Carver
Rondie Wood House
Near Milland
Liphook
Hampshire
UNITED KINGDOM;
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(vii) Tonesan Amissah-Furbert
Appleby, Spurling & Kempe
Cedar House
41 Cedar Avenue
Hamilton HM EX
BERMUDA
(viii) David K. Haines
American Craft Brewing International Limited
Unit A1, 1/F, Vita Tower
29 Wong Chuk Hang
Aberdeen, HONG KONG; and
(ix) Joseph E. Heid
Sara Lee Corporation
3 First National Plaza
Chicago, IL 60602
ARTICLE VII
This Agreement shall be governed by the laws of Bermuda, but
without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction
would be required thereby.
IN WITNESS WHEREOF, Craft and American Brewing International have
each caused this Agreement to be executed by its authorized officer as
of the date first above written.
AMERICAN CRAFT BREWING
INTERNATIONAL LIMITED, a
British Virgin Islands company
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By:
Title:
AMERICAN CRAFT BREWING
INTERNATIONAL LIMITED, a
Bermuda company
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By:
Title: