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EXHIBIT 2.4
AGREEMENT AND PLAN OF MERGER
BETWEEN SAC ACQUISITION CORP. AND SIMCALA, INC.
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of March
31, 1998 between SAC ACQUISITION CORP., a Georgia corporation ("SAC"), and
SIMCALA, INC., a Delaware corporation ("SIMCALA"; together with SAC, the
"Constituent Corporations") and a wholly-owned subsidiary of SAC, sets forth
certain agreements in connection with the merger of SAC with and into SIMCALA
(the "Merger").
W I T N E S S E T H:
WHEREAS, as of the date hereof, SAC has the following authorized
capital stock: 1,000,000 shares of common stock, no par value per share ("SAC
Stock").
WHEREAS, as of the date hereof, there are outstanding 1,000 shares of
SAC Stock, all of which are owned by SIMCALA Holdings, Inc., a Georgia
corporation ("Holdings").
WHEREAS, as of the date hereof, SIMCALA has the following authorized
capital stock: (a) 20,000 shares of common stock, par value $.01 per share
("SIMCALA Common Stock"), and (b) 4,500 shares of preferred stock ("SIMCALA
Preferred Stock"), consisting of (i) 1,500 shares of Series A Preferred Stock,
par value $1.00 per share, and (ii) 3,000 shares Series B Preferred Stock, par
value $1.00 per share. The SIMCALA Common Stock and the SIMCALA Preferred Stock
are collectively referred to herein as the "SIMCALA Stock."
WHEREAS, as of the date hereof, there are outstanding 10,889 shares of
SIMCALA Common Stock, all of which are owned by SAC, and no outstanding shares
of SIMCALA Preferred Stock.
WHEREAS, the respective boards of directors and stockholders of the
Constituent Corporations have approved this Agreement, the Merger and the other
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of setting forth
the terms and conditions of the Merger, the method by which the Merger will be
effected, the manner and basis of converting the shares of SAC Stock into shares
of SIMCALA Stock, the manner of determining the effective date of the Merger and
such other provisions as are deemed necessary or desirable, the parties hereto
do hereby agree as follows:
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ARTICLE I
THE MERGER
1.1 Upon the terms and subject to the conditions of this Agreement and
in accordance with applicable law, on the Effective Date (as defined below) SAC
shall be merged with and into SIMCALA and the separate existence of SAC shall
thereupon cease. SIMCALA shall be the surviving corporation in the Merger
(hereinafter sometimes referred to as the "Surviving Corporation"), and the
Surviving Corporation shall retain the name "SIMCALA, Inc."
1.2 On the Effective Date, the Surviving Corporation shall thereupon
and thereafter possess all of the rights, privileges, immunities and franchises
of a public and a private nature of each of the Constituent Corporations; all
property, real, personal and mixed, tangible and intangible and all and every
other interest of or due to each of the Constituent Corporations shall be taken
and deemed to be transferred to and vested in the Surviving Corporation without
further action. The title to any real estate, or any interest therein, vested in
any of the Constituent Corporations shall not revert or in any way be impaired
by reason of the Merger. The Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of each of the
Constituent Corporations. Neither the rights of creditors nor any liens upon the
property of any of the Constituent Corporations shall be impaired by the Merger.
1.3 The Merger shall be effective as of the date on which the Articles
of Merger are filed with the Secretary of State of Georgia and the Certificate
of Ownership and Merger is filed with the Secretary of State of Delaware (the
"Effective Date").
1.4 On the Effective Date, (a) all of the issued and outstanding shares
of SIMCALA Stock shall be canceled, and no consideration shall be paid or
delivered in exchange therefor; and (b) each of the authorized, issued and
outstanding shares of SAC Stock shall be converted into and become 10.889 shares
of SIMCALA Stock, which shares of SIMCALA Stock shall be the capital stock of
the Surviving Corporation on the Effective Date. SIMCALA shall issue to Holdings
a new certificate for 10,889 shares of SIMCALA Common Stock upon surrender of
Holdings' certificate for 1,000 shares of SAC Stock.
ARTICLE II
CERTIFICATE OF INCORPORATION, BYLAWS, DIRECTORS AND
OFFICERS OF THE SURVIVING CORPORATION
2.1 The Articles of Incorporation of SIMCALA in effect immediately
prior to the Effective Date of the Merger shall be the Articles of Incorporation
of the Surviving Corporation unless and until amended as provided by law and by
such Articles of Incorporation.
2.2 The Bylaws of SIMCALA in effect immediately prior to the Effective
Date of the Merger shall be the Bylaws of the Surviving Corporation unless and
until amended or repealed as provided by law, by the Articles of Incorporation
of the Surviving Corporation and by such Bylaws.
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2.3 The directors of SIMCALA immediately prior to the Effective Date of
the Merger shall be the directors of the Surviving Corporation, and the officers
of SIMCALA immediately prior to the Effective Date of the Merger shall be the
officers of the Surviving Corporation, in both cases until their successors
shall have been elected and shall qualify or until otherwise provided by law, by
the Articles of Incorporation of the Surviving Corporation and by the Bylaws of
the Surviving Corporation.
ARTICLE III
FURTHER ACTIONS AND AGREEMENTS
3.1 If at any time after the Effective Date of the Merger the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either Constituent Corporation acquired by the Surviving
Corporation as a result of, or in connection with, the Merger or to otherwise
carry out this Agreement, the officers and directors of the Surviving
Corporation shall, and hereby are authorized to, execute and deliver, in the
name and on behalf of the Constituent Corporations or otherwise, all such deeds,
bills of sale, assignments and assurances and to take and do, in the name and on
behalf of the Constituent Corporations or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and all
right, title and interest in, to and under such rights, properties or assets in
the Surviving Corporation or to otherwise carry out this Agreement.
ARTICLE IV
MISCELLANEOUS
4.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia.
4.2 The parties hereto, by resolution of their respective boards of
directors, may amend, modify or supplement this Agreement, or waive the
application of any provision hereof, provided that any such amendment,
modification, supplement or waiver is in writing and signed by the parties
hereto.
4.3 By written notice to the other party hereto at any time prior to
the Effective Date, whether before or after approval by the stockholders of the
Constituent Corporations of this Agreement, the Merger and the other
transactions contemplated hereby for any reason, either of the Constituent
Corporations, by resolution of their respective boards of directors, may
terminate this Agreement and abandon the Merger and the other transactions
contemplated hereby, and in that event, neither party shall have any further
obligation to the other party or to the stockholders of the other party.
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IN WITNESS WHEREOF, each Constituent Corporation has caused this
Agreement to be executed by its duly authorized officers as of the date first
above written.
SAC ACQUISITION CORP., a Georgia corporation
By: /s/ William A. Davies
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William A. Davies
Chairman of the Board
SIMCALA, INC., a Delaware corporation
By: /s/ William A. Davies
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William A. Davies
Chairman of the Board
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