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EXHIBIT 3.9
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") dated as of April ____,
1998, is by and between VS HOLDINGS INC. and VS HOLDINGS NO. 2 INC., both
Michigan corporations.
WITNESSETH:
WHEREAS, the respective Boards of Directors and shareholders of each of
the parties hereto have duly adopted resolutions approving this Agreement and
Plan of Merger, in each case by unanimous vote, and have declared it desirable
and in the best interests of their respective corporations that VS HOLDINGS NO.
2 INC. ("Discontinuing Corporation") be merged into VS HOLDINGS INC., which
shall be the Surviving Corporation ("Surviving Corporation") in the manner and
upon the terms and conditions hereinafter set forth and with the effect provided
by and pursuant to application sections of the Michigan Business Corporation Act
and Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended;
WHEREAS, the authorized capital stock of Surviving Corporation consists
of 125,000 Class A Voting Common Stock without par value ("Surviving Corporation
Class A Common Stock"), of which 2,500 shares are issued and outstanding, and
125,000 Class B Non-Voting Common Stock without par value ("Surviving
Corporation Class B Common Stock"), of which 97,500 shares are currently issued
or outstanding; and
WHEREAS, the authorized capital stock of Discontinuing Corporation
consists of 30,000 shares of Class A Voting Common Stock without par value
("Discontinuing Corporation Class A Common Stock"), of which 5,000 shares have
been issued and are outstanding, and 30,000 shares of Class B Non-Voting Common
Stock without par value ("Discontinuing Corporation Class B Common Stock"), of
which 5000 shares have been issued and are outstanding; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, and subject to the terms and conditions hereinafter
set forth, the parties hereto hereby agree as follows:
ARTICLE I
MERGER
1.1 Merger. Effective on the Effective Date (as defined in Section
1.2, below) and upon compliance with the applicable laws of the State
of of Michigan, Discontinuing Corporation shall be merged with and into
Surviving Corporation, a Michigan corporation, which shall be the Surviving
Corporation, and the separate existence and corporate organization of
Discontinuing Corporation shall thereupon cease, all upon the terms and
conditions hereinafter set forth ("Merger").
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1.2 Effective Date. The Merger shall be effective as of _____ __.m.,
Detroit, Michigan local time on April 28, 1998 (the "Effective Date").
1.3 Corporate Existence of Discontinuing Corporation . On the Effective
Date, the separate existence of Discontinuing Corporation shall cease, except as
may be otherwise continued by law, and Discontinuing Corporation shall be merged
with and into Surviving Corporation. Surviving Corporation shall possess all the
rights, privileges, powers, and franchises, of a public as well as of a private
nature, and be subject to all the restrictions, disabilities, and duties of
Discontinuing Corporation , and all property, real, personal, and mixed, and all
debts due to Discontinuing Corporation on whatever account, as well as for stock
subscriptions; and all other things in action or belonging to Discontinuing
Corporation shall be vested in the Surviving Corporation; and all property,
rights, privileges, powers, and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation as
they were of Discontinuing Corporation, and the tide to any real estate vested
in Discontinuing Corporation by deed or otherwise, under the laws of Michigan or
any other jurisdiction, shall not revert or be in any way impaired; but all
rights of creditors and all liens upon any property of Discontinuing Corporation
shall be preserved unimpaired, and all debts, liabilities, and duties of
Discontinuing Corporation shall thenceforth attach to the Surviving Corporation
and may be enforced against it to the same extent as if said debts, liabilities,
and duties had been incurred or contracted by it.
1.4 Coporate Existence of Surviving Corporation. Except as otherwise
set forth herein, the identity, existence, purposes, objects, properties, real,
personal and mixed, rights, privileges, immunities, powers, franchises and
authority of VS Holdings Inc., as the Surviving Corporation, shall continue
unaffected and unimpaired by the Merger.
1.5 Further Action. At any time, or from time to time, after the
Effective Date, the last acting officers of Discontinuing Corporation or the
corresponding officers of the Surviving Corporation, may, in the name of
Discontinuing Corporation, execute and deliver all such proper deeds,
assignments, and other instruments and take or cause to be taken all such
further or other action as the Surviving Corporation may deem necessary or
desirable in order to vest, perfect, or confirm in the Surviving Corporation
title to and possession of all Discontinuing Corporation property, rights,
privileges, powers, franchises, immunities, and interest and otherwise to carry
out the purposes of this Agreement and Plan of Merger.
ARTICLE II
NAME OF SURVIVING CORPORATION;
CERTIFICATE OF INCORPORATION; BY-LAWS
2.1 Name of Surviving Corporation. The name of the Surviving
Corporation from and after the Effective Date shall be VS, HOLDINGS INC.
2.2 Articles of Incorporation. The Articles of Incorporation
of Surviving Corporation as in effect on the date hereof shall from and after
the Effective Date be, and continue
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to be, the Articles of Incorporation of the Surviving Corporation until changed
or amended as provided by law.
2.3 By-Laws. The By-Laws of Surviving Corporation, as in
effect immediately before the Effective Date, shall from and after the Effective
Date be the By-Laws of the Surviving Corporation.
ARTICLE III
STATUS AND CONVERSION OF SECURITIES
The manner and basis of converting the shares of the capital stock of
Discontinuing Corporation, and amount of Class A voting common stock ("Converted
Class A Shares") and the Class B non-voting common stock ("Converted Class B
Shares") of the Surviving Corporation which the holders of shares of the capital
stock of Discontinuing Corporation are to receive in exchange for such shares
are as follows:
3.1 Conversion of Stock:
(a) Class A Common Stock. On the Effective Date, each share of
the Discontinuing Corporation Class A Common Stock outstanding on the Effective
Date shall, by operation of law and by virtue of the Merger and without any
action on the part of any person, be converted into .005 Converted Class A
Shares and .096 Converted Class B Shares.
(b) Class B Common Stock. On the Effective Date, each share of
the Discontinuing Corporation Class B Common Stock outstanding on the Effective
Date shall, by operation of law and by virtue of the Merger and without any
action on the part of any person, be converted into .101 Converted Class B
Shares.
c. Each share of the common stock of the Surviving Corporation
issued and outstanding on the Effective Date shall remain outstanding without
any change or alteration in the ownership, voting powers or other rights as set
forth in the Articles of Incorporation of the Surviving Corporation.
3.2 Cancellation of Authorized Shares. All authorized shares of
Discontinuing Corporation Class A Common Stock and Discontinuing Corporation
Class B Common Stock, other than those outstanding on the Effective Date, shall,
by operation of law and by nature of the merger and without action on the part
of any person, be canceled and retired, without conversion, and no new shares of
the Surviving Corporation shall be issued with respect thereto.
3.3 Exchange of Shares,
(a) Discontinuing Corporation Shares. On the Effective Date,
the holders of the outstanding shares of the capital stock of Discontinuing
Corporation (the "Discontinuing Corporation Shareholders") shall cause the
certificate(s) representing such shares to be surrendered to the Surviving
Corporation. Upon the surrender of such certificate(s), the Discontinuing
Corporation
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Shareholders shall be entitled to receive certificates representing the
Converted Class A Shares or Converted Class B Shares as set forth in Section 3.1
above. The Surviving Corporation shall thereupon cause certificates
representing such shares to be executed and delivered to the Discontinuing
Corporation Shareholders in accordance with the terms of this Article III. Any
resulting fractional shares shall be rounded to the nearest whole number.
ARTICLE IV
DIRECTORS AND OFFICERS
4.1 The Board of Directors of VS Holdings Inc. prior to the
effective date of the Merger shall serve as the Board of Directors of the
Surviving Corporation, following the Effective Date of the Merger and until the
next Annual Meeting, or until their respective successors shall be elected and
qualified, in accordance with the By-Laws of the Surviving Corporation.
4.2 The Officers of VS Holdings Inc. in office prior to the
effective date of the Merger shall serve as the Officers of the Surviving
Corporation, following the Effective Date of the Merger and until the next
Annual Meeting, or until their respective successors shall be elected and
qualified, in accordance with the By-Laws of the Surviving Corporation.
ARTICLE V
MISCELLANEOUS
5.1 This Agreement and Plan of Merger may be terminated and
the proposed Merger abandoned at any time before the Effective Date of the
Merger, if the Board of Directors of Discontinuing Corporation or of Surviving
Corporation duly adopt a resolution abandoning the Agreement and Plan of Merger.
5.2 This Agreement and Plan of Merger may be amended, modified
or terminated, or any provision thereof may be waived only by an instrument in
writing signed by the duly authorized officers of both parties hereto.
5.3 This Agreement and Plan of Merger constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties, and there are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as set forth specifically herein.
5.4 This Agreement and Plan of Merger shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the Michigan.
5.5 All of the terms and provisions of this Agreement and Plan
of Merger by or for the benefit of the parties shall be binding upon and inure
to the benefit of their successors and
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assigns. The rights and qbligations provided by this agreement shall not be
assignable by any party
5.6 This Agreement and Plan of Merger may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
by the parties hereto as of the date first written above.
VS HOLDINGS INC. VS HOLDINGS NO. 2 INC.
By: David J. Woodward By: David J. Woodward
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David J. Woodward, Secretary David J. Woodward, Secretary
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