EXHIBIT 3(i)(3)
ARTICLES OF MERGER OF
FORSTMANN GEORGIA CORP.
(A GEORGIA CORPORATION)
WITH AND INTO
FORSTMANN & COMPANY, INC.
(A GEORGIA CORPORATION)
Pursuant to the Georgia Business Corporation Code (S) 14-2-1105, the
undersigned corporations do hereby agree to these Articles of Merger:
I. The names of the corporations proposing to merge and the names of the
states under the laws of which such corporations are organized are as follows:
FORSTMANN GEORGIA CORP.
a Georgia corporation ("FGC")
and
FORSTMANN & COMPANY, INC.
a Georgia corporation ("Forstmann").
The surviving corporation in the merger (the "Surviving Corporation") shall
be FORSTMANN & COMPANY, INC.
II. A copy of the executed Agreement and Plan of Merger, dated as of March
3, 1992 (the "Plan of Merger"), is attached hereto as Exhibit A and incorporated
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herein by reference.
III. The merger was duly approved by the shareholders of each of the
merging corporations.
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IN WITNESS WHEREOF, each of the undersigned corporations have caused these
Articles of Merger to be executed in its name by duly authorized officers as of
the 3rd day of March, 1992.
"FGC"
FORSTMANN GEORGIA CORP.
By: /s/
------------------------------------
Its: President
Attest: /s/ Elyn Megargee Macek
--------------------------------
Its: Assistant Secretary
[CORPORATE SEAL]
"FORSTMANN"
FORSTMANN & COMPANY, INC.
By: /s/ William B. Towne
------------------------------------
Its: Executive Vice President and
Chief Financial Officer
Attest: /s/ Linda A. Filliponi
--------------------------------
Its: Assistant Secretary
[CORPORATE SEAL]
AGREEMENT AND PLAN OF MERGER
between
FORSTMANN GEORGIA CORP.
(a Georgia corporation)
and
FORSTMANN & COMPANY, INC.
(a Georgia corporation)
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is entered into this
3rd day of March, 1992, by and between FORSTMANN GEORGIA CORP., a Georgia
corporation ("FGC"), and FORSTMANN & COMPANY, INC., a Georgia corporation
("FORSTMANN").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, FGC is a corporation duly organized and existing under the laws of
the State of Georgia, having its registered office at 127 Peachtree Street,
Suite 1400, Atlanta, Georgia 30303-1810; and
WHEREAS, FGC has authorized capital stock consisting of Ten Thousand
(10,000) shares of common stock, $.10 par value, of which One Hundred (100)
shares have been duly issued and are outstanding, fully paid and nonassessable
(the "FGC Common Stock"); and
WHEREAS, FORSTMANN is a corporation duly organized and existing under the
laws of the State of Georgia, having its registered office at 127 Peachtree
Street, Suite 1400, Atlanta, Georgia 30303-1810; and
WHEREAS, FORSTMANN has authorized capital stock consisting of: (i) Ten
Million (10,000,000) shares of $.001 par value common stock, of which Four
Million Eight Hundred Fifty-Five Thousand Eight Hundred Seventy-Four and Five
Tenths (4,855,874.5) shares have been duly issued and are outstanding, fully
paid and nonassessable (the "Common Stock"); (ii) One Hundred Twenty Thousand
(120,000) shares of non-voting common stock, $.001 par value, of which One
Hundred Twelve Thousand One Hundred Thirty-Eight (112,138) shares are issued and
outstanding, fully paid and nonassessable (the "Non-Voting Common Stock") and
(iii) One Hundred Thousand (100,000) shares of preferred stock, $1.00 par value,
which are designated 5% Senior (Pay-in-Kind) Preferred Stock, of which Forty-
Seven Thousand One Hundred Ninety-Nine and Sixty-Three Hundredths (47,199.63)
shares are issued and outstanding, fully paid and nonassessable (the "Preferred
Stock"); and
WHEREAS, FORSTMANN intends to commence a public offering of up to 3,162,500
shares of Common Stock pursuant to a Registration Statement on Form S-1
(Registration No. 33-44417) filed with the Securities and Exchange Commission on
December 9, 1991, as amended on each of December 13, 1991, January 23, 1992,
January 27, 1992, February 10, 1992 and February 26, 1992; and
WHEREAS, FORSTMANN commenced an offer on December 9, 1991 to exchange for
each $1,000 face amount of its 14-3/4% Senior Subordinated Notes due April 15,
1999 and Split Coupon Redeemable Amended Senior Subordinated Notes due April 15,
1999 which were surrendered and accepted for exchange (i) $580 in cash and (ii)
such number of unregistered shares of Common Stock which is equal to the result
obtained by dividing $420 by the initial public offering price per share (but in
no event more than 35 shares) together with accrued interest (the "Exchange
Offer"); and
WHEREAS, the respective Boards of Directors of FGC and FORSTMANN
(collectively, the "Constituent Corporations") have deemed it advisable to
merge, and have authorized the merger of FGC with and into FORSTMANN on the
terms and conditions hereinafter set forth in accordance with the laws of the
State of Georgia, and have recommended that the merger of FGC into FORSTMANN
(the "Merger") be approved and that this Agreement be approved and adopted by
the shareholders of each of the Constituent Corporations;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and conditions hereinafter contained, FGC and FORSTMANN do
hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger shall take effect upon the filing of the Certificate or
Articles of Merger (together with any other documents required by the Georgia
Business Corporation Code (the "Code") to effect the Merger) with the Secretary
of State of the State of Georgia (the "Effective Time"), at which time the
separate existence of FGC shall cease and FGC shall be merged, pursuant to
Article 11 of the Code, with and into FORSTMANN, which shall continue its
corporate existence and be the corporation surviving the merger (the "Surviving
Corporation").
1.2 The name of the Surviving Corporation shall be FORSTMANN & COMPANY,
INC.
ARTICLE II
THE SURVIVING CORPORATION
2.1 The Surviving Corporation shall be governed by the laws of the State
of Georgia. The existing Articles of Incorporation of FORSTMANN shall be the
Articles of Incorporation of the Surviving Corporation after the Effective Time,
until thereafter amended and/or restated in the manner provided by law. The
purposes and powers of FORSTMANN set forth in the Articles of Incorporation of
FORSTMANN in effect immediately prior to the Effective Time shall be the
purposes and powers of the Surviving Corporation after the Effective Time until
thereafter amended and/or restated in the manner provided by law.
2.2 The existing By-Laws of FORSTMANN shall be the By-Laws of the
Surviving Corporation after the Effective Time until the same shall thereafter
be altered, amended and/or restated, or thereafter repealed in accordance with
applicable law, the Articles of Incorporation then in effect and said By-Laws.
ARTICLE III
DIRECTORS AND OFFICERS
3.1 The persons who are the directors and officers, respectively, of
FORSTMANN immediately prior to the Effective Time shall be the directors and
officers, respectively, of the Surviving Corporation after the Effective Time.
If after the Effective Time a vacancy exists, it may thereafter be filled in the
manner provided by the By-Laws of the Surviving Corporation.
ARTICLE IV
CONVERSION OF SHARES
4.1 At the Effective Time, by virtue of the Merger and without any action
on the part of the holder of any capital stock of FGC or FORSTMANN:
(a) Each share of FGC Common Stock issued and outstanding immediately
prior to the Effective Time shall be converted into the right to receive
cash at the price of $9.00 per share and shall be cancelled and retired;
(b) Each share of Common Stock issued and outstanding immediately
prior to the Effective Time (other than "Dissenting Shares", as defined in
Section 4.3 hereof) shall be converted into (i) the right to receive
1/2,172 of a share of common stock, $.001 par value, of the Surviving
Corporation (the "Surviving Corporation Common Stock"), rounded down to the
nearest whole share of Surviving Corporation Common Stock, and (ii) the
right to receive cash pursuant to Section 4.4 for any fraction (before such
rounding) of a share of Surviving Corporation Common Stock which
would otherwise result from such conversion ratio;
(c) Each share of Common Stock held in the corporate treasury of
FORSTMANN immediately prior to the Effective Time shall be cancelled and
retired and cease to exist without any conversion or payment in respect
thereof;
(d) Each share of Non-Voting Common Stock issued and outstanding
immediately prior to the Effective Time (other than Dissenting Shares)
shall be converted into (i) the right to receive 1/2,172 of a share of non-
voting common stock, $.001 par value, of the Surviving Corporation (the
"Surviving Corporation Non-Voting Common Stock"), rounded down to the
nearest whole share of Surviving Corporation Non-Voting Common Stock, and
(ii) the right to receive cash pursuant to Section 4.4 for any fraction
(before such rounding) of a share of Surviving Corporation Non-Voting
Common Stock which would otherwise result from such conversion ratio;
(e) Each share of Non-Voting Common Stock held in the corporate
treasury of FORSTMANN immediately prior to the Effective Time shall be
cancelled and retired and cease to exist, without any conversion or payment
in respect thereof;
(f) Each share of Preferred Stock issued and outstanding or held in
the corporate treasury of FORSTMANN immediately prior to the Effective Time
shall be converted into one issued, fully paid and nonassessable share of
preferred stock. $1.00 par value, of the Surviving corporation (the
"Surviving Corporation Preferred Stock") which is either outstanding or
held in the corporate treasury, as the case may be .
4.2 After the Effective Time, each holder of an outstanding certificate or
certificates which immediately prior thereto represented shares of Common Stock
or Non-Voting Common Stock (other than holders of Dissenting Shares) will, upon
surrender of such certificate or certificates, be entitled to a certificate or
certificates representing the number of shares of Surviving Corporation Common
Stock or Surviving Corporation Non-Voting Common Stock, as the case may be, into
which the aggregate number of shares of Common Stock or Non-Voting Common Stock
previously represented by such certificate or certificates surrendered shall
have been converted pursuant to the Merger in accordance with Section 4.1
thereof, plus cash in lieu of fractional shares as provided in Section 4.4.
4.3 Notwithstanding any other provision of this Agreement to the contrary,
shares of FORSTMANN which are issued and outstanding immediately prior to the
Effective Time and which are held by shareholders who have timely filed with
FORSTMANN a written objection to the Merger and otherwise complied with Article
13 of the Code (herein "Dissenting Shares") shall not be converted into or
represent a right to receive any shares of Surviving Corporation Common Stock or
Surviving Corporation Non-Voting Common Stock pursuant to Section 4.1 hereof,
but the holder thereof shall be entitled only to such rights as are granted by
Article 13 of the Code. Each holder of Dissenting Shares who becomes entitled
to payment for such shares pursuant to Article 13 of the Code shall receive
payment therefor from FORSTMANN in accordance with the Code. If any such holder
shall have failed to perfect or shall have effectively withdrawn or legally lost
his right to appraisal and payment of the fair value for his shares under the
foregoing Article of the Code, each such share shall thereupon be converted into
and represent the right to receive 1/2,172 of a share of Surviving Corporation
Common Stock and cash in lieu of fractional shares or 1/2,172 of a share of
Surviving Corporation Non-Voting Common Stock and cash in lieu of fractional
shares, as applicable, pursuant to Section 4.1 hereof upon surrender of the
certificate representing each such share to FORSTMANN.
4.4 Notwithstanding any other provision of this Agreement, no certificates
or scrip for fractional shares of Surviving Corporation Common Stock or
Surviving Corporation Non-Voting Common Stock shall be issued upon surrender for
exchange of certificates pursuant to this Article IV. In lieu of any such
fractional securities, each holder of Common Stock or Non-Voting Common Stock
who would otherwise have been entitled to a fraction of a share of Surviving
Corporation Common Stock or Surviving Corporation Non-Voting Common Stock upon
surrender of certificates for exchange pursuant to this Article IV will be
entitled to receive cash upon such surrender in an amount computed by
multiplying $9.00 by such fraction.
ARTICLE V
EXCHANGE OF SHARES
5.1 Prior to the Effective Time, FORSTMANN shall designate a bank or trust
company to act as the Exchange Agent in the Merger (the "Exchange Agent").
5.2 Promptly after the Effective Time, the Surviving Corporation shall
cause the Exchange Agent to mail to each record holder, as of the Effective
Time, of an outstanding certificate or certificates which immediately prior to
the Effective Time represented shares of Common Stock or Non-Voting Common Stock
(the "Certificate") a form of letter of transmittal (which shall specify that
delivery shall be effected and risk of loss and title to the Certificates shall
pass only upon proper delivery of
the Certificates to the Exchange Agent) and instructions for use in effecting
the surrender of Certificates for exchange. Upon surrender to the Exchange Agent
of a Certificate, together with such letter of transmittal relating thereto,
duly executed, the holder of such Certificate shall be entitled to receive in
exchange therefor certificates representing the appropriate number of shares of
Surviving Corporation Common Stock or Surviving Corporation Non-Voting Common
Stock, as the case may be, and such Certificate shall forthwith be cancelled. If
new certificates are to be registered in the name of a person other than the
person in whose name the Certificate surrendered is registered, it shall be a
condition of exchange that the Certificate so surrendered shall be properly
endorsed or otherwise be in proper form for transfer and that the person
requesting such exchange shall pay any transfer or other tax required by reason
of the exchange to a person other than the registered holder of the Certificate
surrendered, or establish to the satisfaction of the Surviving Corporation that
such tax has been paid or is not applicable. Until surrendered in accordance
with the provisions of this Section 5.2, each Certificate shall represent
1/2,172 of the shares stated on the face of such Certificate.
5.3 After the Effective Time there shall be no transfers on the stock
transfer books of the Surviving Corporation of shares of Common Stock and Non-
Voting Common Stock which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, shares are presented to the Surviving
Corporation for transfer, they shall be cancelled and exchanged for certificates
representing the appropriate number of shares of Surviving Corporation Common
Stock or Surviving Corporation Non-Voting Common Stock, as the case may be.
5.4 Certificates representing shares of Preferred Stock prior to the
Effective Time will represent shares of Surviving Corporation Preferred Stock
after the Effective Time.
ARTICLE VI
SHAREHOLDER APPROVAL, EFFECTIVENESS OF MERGER
6.1 This Agreement shall be submitted for approval to the shareholders of
FGC and FORSTMANN as provided by the Code. If this Agreement, the Merger (and
the transactions contemplated thereby) are approved by the requisite vote or
written consents of such shareholders and are not terminated and abandoned
pursuant to the provisions of Article VII hereof, this Agreement and Articles of
Merger or a Certificate of Merger incorporating the terms of this Agreement
shall be filed and recorded in accordance with the laws of the State of Georgia
after the last approval by such shareholders upon the direction of the Board of
Directors of FORSTMANN and, upon such filings, the Merger shall become
effective. The Board of Directors and the proper officers of the Constituent
Corporations are authorized, empowered and
directed to do any and all acts and things, and to make, execute, deliver, file
and record any and all instruments, papers, and documents which shall be or
become necessary, proper, or convenient to carry out or put into effect any of
the provisions of this Agreement or of the Merger herein provided for.
ARTICLE VII
TERMINATION
7.1 Anything herein or elsewhere to the contrary notwithstanding, at any
time prior to the filing of the Articles or Certificate of Merger with the
Secretary of State of Georgia, the Board of Directors of FORSTMANN or FGC may
terminate and abandon this Agreement, notwithstanding favorable action on the
Merger by the shareholders of either such corporation or earlier approval by the
Boards of Directors of such corporations.
ARTICLE VIII
MISCELLANEOUS
8.1 This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
8.2 This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Georgia applicable to instruments made, executed and performed wholly in such
state and, in any case, without regard to the conflicts of law principles of
such state.
IN WITNESS WHEREOF, each of the Constituent Corporations has caused this
Agreement to be signed in its corporate name by its duly authorized officers all
as of the date first above written.
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"FGC"
FORSTMANN GEORGIA CORP.,
a Georgia corporation
By: /s/ Laurence Levett
------------------------------------
Its: President
Attest: /s/ Elyn Megargee Macek
--------------------------------
Its: Assistant Secretary
[CORPORATE SEAL]
"FORSTMANN"
FORSTMANN & COMPANY, INC.,
a Georgia corporation
By: /s/ William B. Towne
------------------------------------
Its: Executive Vice President and
Chief Financial Officer
Attest: /s/ Linda A. Filliponi
--------------------------------
Its: Assistant Secretary
[CORPORATE SEAL]
CERTIFICATE
TO: Secretary of State
Suite 315 West Tower
2 Martin Luther King, Jr. Drive
Atlanta, Georgia 30334
Pursuant to the Georgia Business Corporation Code Section 14-2-1105.1(a),
I, William B. Towne, do hereby certify, verify and confirm that the request for
publication of a notice of intent to file articles of merger and payment
therefor have been made as required by the Georgia Business Corporation Code
Section 14-2-1105.1(b) for the corporation:
FORSTMANN & COMPANY, INC.
This 3rd day of March, 1992.
/s/ William B. Towne
---------------------------------
William B. Towne
Executive vice President and
Chief Financial Officer