STATE OF FLORIDA
DEPARTMENT OF STATE
I certify the attached is a true and correct copy of the Articles of Merger,
filed on April 26, 1996, for ASIA-AMERICA CORPORATION, the surviving Nevada
corporation not authorized to transact business in Florida, as shown by the
records of this office.
Given under my hand and the Great Seal of the State of Florida, at Tallahassee,
the Capitol, this the Twenty-sixth day of April, 1996.
By: /s/ SANDRA B. MORTHAM
----------------------------------
Sandra B. Mortham
Secretary of State
(SEAL)
CR2E022 (2-95)
FLORIDA DEPARTMENT OF STATE
Sandra B. Mortham
Secretary of State
April 26, 1996
THOMAS G. KIMBLE & ASSOCIATES
ATTN: THOMAS G. KIMBLE
311 SOUTH STATE STREET, SUITE 440
SALT LAKE CITY, UT 84111
The Articles of Merger were filed on April 26, 1996, for ASIA-AMERICA
CORPORATION, the surviving Nevada corporation not authorized to transact
business in Florida.
The certification you requested is enclosed.
Should you have any further questions regarding this matter, please feel free to
call (904) 487-6050, the Amendment Filing Section.
Joy Moon-French
Corporate Specialist
Division of Corporations Letter Number: 196A00019912
FILED
96 APR 26 AM 8:00
SECRETARY OF STATE
TALLAHASSEE FLORIDA
PLAN AND ARTICLES OF MERGER
OF
FIRST AMERICAN RAILWAYS, INC.
A FLORIDA CORPORATION
INTO
ASIA-AMERICA CORPORATION
A NEVADA CORPORATION
THE UNDERSIGNED CORPORATIONS DO HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations (the "Constituent Corporations") of the merger (the "Merger") is as
follows:
NAME STATE OF INCORPORATION
---- ----------------------
First American Railways, Inc. Florida
Asia-America Corporation Nevada
SECOND: That a plan of merger between the parties to the Merger has been
approved and adopted, by the board of directors of each of the Constituent
Corporations in accordance with the requirements of Florida and Nevada law and
that upon filing this document with the Secretary of State of Florida and the
Secretary of State of Nevada, the Merger shall be effective (the "Effective
Time").
THIRD: The surviving corporation of the Merger is Asia-America
Corporation, a Nevada corporation (the "Surviving Corporation").
FOURTH: The terms and conditions of the Merger and the manner and basis of
converting the shares of the Constituent Corporations is as follows:
(a) CORPORATE EXISTENCE
(1) From and after the Effective Time, Asia-America Corporation ("AAC")
as the Surviving Corporation shall continue its corporate existence as a
Nevada corporation and (i) it shall thereupon and thereafter possess all
rights, privileges, powers, franchises and property (real, personal and
mixed) of each of the Constituent Corporations; (ii) all debts due to
either of the Constituent Corporations, on whatever account, all causes in
action and all other things
belonging to either of the Constituent Corporations shall be taken and
deemed to be transferred to and shall be vested in the Surviving
Corporation by virtue of the Merger without further act or deed; (iii) the
title to any real estate vested by deed or otherwise, under the laws of any
jurisdiction, in either of the Constituent Corporations, shall not revert
or be in any way impaired by reason of the Merger; and (iv) all rights of
creditors and all liens upon any property of any of the Constituent
Corporations shall be preserved unimpaired, and all debts, liabilities and
duties of the Constituent Corporations shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as
if such debts, liabilities and duties had been incurred or contracted by
the Surviving Corporation.
(2) From and after the Effective Time, (i) the Articles of
Incorporation and By-laws of AAC, as existing immediately prior to the
Effective Time, shall be the Articles of Incorporation and By-Laws of the
Surviving Corporation subject to amendments adopted herein and any
subsequent amendments; (ii) the members of the Board of Directors of First
American Railways, Inc. ("First American") holding office immediately prior
to the Effective Time shall become the members of the Board of Directors of
the Surviving Corporation, each to serve subject to the Surviving
Corporation's by-laws; (iii) AAC shall change its name to First American
Railways, Inc.; (iv) all persons who hold executive offices of First
American at the Effective Time shall be elected by the board of directors
of the Surviving Corporation to hold the same offices of the Surviving
Corporation, each to serve subject to the Surviving Corporation's by-laws.
(b) CONVERSION OF SECURITIES
As of the Effective Time and without any action on the part of the
Constituent Corporations or the holders of any of the securities of either of
these corporations each of the events set forth below shall occur. All
capitalized terms are defined in the Agreement and Plan of Merger referred to in
the SEVENTH article hereof:
(1) Each of the First American Historical Shares issued and outstanding
immediately prior to the Effective Time shall be converted into one share
of AAC Common Stock (after giving effect to the AAC 1-for-108 Reverse Stock
Split). All such shares of First American Common Stock shall no longer be
outstanding and shall automatically be canceled and shall cease to exist,
and each certificate previously evidencing any such shares shall thereafter
represent the right to receive certificates evidencing such number of
shares of AAC Common Stock into which such shares of First American Common
Stock were converted. The holders of such certificates previously
evidencing shares of First American Common Stock outstanding immediately
prior to the Effective Time shall cease to have any rights with respect to
such shares of First American Common Stock except as otherwise provided
herein or by law;
2
(2) Any shares of First American Common Stock held in the treasury of
First American immediately prior to the Effective Time shall automatically
be canceled and extinguished without any conversion thereof and no payment
shall be made with respect thereto;
(3) In fulfillment of the obligation of First American to issue
securities underlying Units sold in its Private Placement to purchasers in
the Private Placement, AAC shall issue on the terms and subject to the
conditions set forth in the Memorandum: (a) shares of AAC Common Stock on
the basis of one share for each share of First American Common Stock sold
in the Private Placement, (b) a Convertible Secured Note in the principal
amount of $15,000 for each Convertible Secured Note sold in the Private
Placement, and (c) Series A Redeemable Warrants to purchase shares of AAC
Common Stock, on the basis of one AAC Series A Redeemable Warrant for each
Series A Redeemable Warrant purchased in the Private Placement. The terms
of the Convertible Secured Notes and Series A Redeemable Warrants shall be
as described in the Memorandum and in the form of such securities as
attached thereto as exhibits, and AAC hereby agrees to assume all
responsibility, upon Closing, to implement the security arrangements,
sinking fund and other arrangements as defined and contemplated in the
Memorandum, including, without limitation, the obligation to issue Series A
Redeemable Warrants in the event of prepayment of the Convertible Secured
Notes;
(4) Subject to completion of the sale of at least the Minimum Offering
in the Private Placement, AAC shall, at Closing, issue to Capital Growth
International, LLC ("CGI") or its designees, after giving effect to the AAC
reverse stock spilt, 750,000 shares of AAC Common Stock and Series A
Redeemable Warrants to purchase 650,000 shares of AAC Common Stock under
the terms and conditions of the Placement Agent Agreement between First
American and CGI dated February 27, 1996, and as described in the
Memorandum.
(5) The 350,000 shares of AAC Common Stock (after giving effect to the
AAC Reverse Stock Split) previously issued and outstanding prior to the
Merger will remain issued and outstanding;
(6) At Closing, there shall be no securities other than those described
in the Memorandum, convertible into or exercisable or exchangeable for
shares of First American Common Stock except as described in the
Memorandum.
FIFTH: Voting results for the merger are as follows:
(a) ASIA-AMERICA CORPORATION. The Plan of Merger (the "Plan") was
submitted to certain stockholders of Asia-America Corporation by the Board of
Directors on April 12, 1996, and out of 38,000,000 shares of common stock
entitled to vote on the Plan,
3
33,161,096 (87%) shares approved the plan by written consent, resulting in
approval of the Plan.
(b) FIRST AMERICAN RAILWAYS, INC. The Plan was submitted to certain
stockholders of First American Railways, Inc. by the Board of Directors on April
15, 1996, and out of 4,650,007 shares of common stock entitled to vote on the
Plan, 4,025,746 (86.6%) shares approved the Plan by written consent, resulting
in approval of the Plan.
(c) GENERAL. The number of votes cast for the Plan by each group was
sufficient under Florida and Nevada law for approval by that voting group.
SIXTH: The Articles of Incorporation of Asia-America Corporation are
hereby amended as follows:
1. Article I is amended to read as follows:
ARTICLE I - NAME
The name of the corporation is First American Railways, Inc.
2. Article IV is amended to read as follows:
ARTICLE IV - STOCK
The aggregate number of shares which this Corporation shall have
authority to issue is:
(a) COMMON STOCK. The Corporation shall have authority to issue
100,000,000 shares of common stock having a par value of $.001 per share.
All shares of common stock shall have the same rights and shall not be
liable to any further call or assessment.
(b) PREFERRED STOCK. The Corporation shall have authority to issue
500,000 shares of preferred stock, $.001 par value, which may be issued in
one or more series and with such rights, preferences and designations as
determined by the Corporation's board of directors. All shares of any one
series shall be alike in every particular.
ARTICLE XII - LIABILITY OF DIRECTORS AND OFFICERS
No director of officer shall be personally liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty by such
persons as a director or officer. Notwithstanding the foregoing, a director or
officer shall be liable to the extent provided by applicable law, (i) for acts
or omissions which involve
4
intentional misconduct, fraud or a knowing violation of law, or (ii) for the
payment of dividends in violation of NRS 78.300.
SEVENTH: The Agreement and Plan of Merger dated April 15, 1996, by and
between AAC and First American is on file at the principal place of business of
AAC at One East First Street, Reno, Nevada 89501, and will be furnished on
request without cost to any stockholder of either of the constituent
corporations which are parties hereto.
EIGHTH: Upon this Merger becoming effective, the Surviving Corporation
acknowledges that it is deemed, under Florida law:
(a) To appoint the Secretary of State as its agent for service of
process in a proceeding to enforce any obligation or the rights of
dissenting shareholders of each domestic corporation party to the merger or
share exchange; and
(b) To agree that it will promptly pay to the dissenting shareholders
of each domestic corporation party to the merger or share exchange the
amount, if any, to which they are entitled under Section 607.1302, Florida
Statutes.
ASIA-AMERICA CORPORATION
By: /s/ DENNY W. NESTRIPKE
-----------------------------------
Denny W. Nestripke, President
and Secretary
FIRST AMERICAN RAILWAYS, INC.
By: /s/ ALLEN C. HARPER By: /s/ EUGENE K. GARFIELD
----------------------------------- -----------------------------------
Allen C. Harper, Chairman Eugene K. Garfield, President
5
FIELD
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
APR 26 1996
1814-87
DEAN HELLER SECRETARY OF STATE
NO. /s/ DEAN HELLER
---------------------------
Dean Heller
PLAN AND ARTICLES OF MERGER
OF
FIRST AMERICAN RAILWAYS, INC.
A FLORIDA CORPORATION
INTO
ASIA-AMERICA CORPORATION
A NEVADA CORPORATION
THE UNDERSIGNED CORPORATIONS DO HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the constituent
corporations (the "Constituent Corporations") of the merger (the "Merger") is as
follows:
NAME STATE OF INCORPORATION
---- ----------------------
First American Railways, Inc. Florida
1360 South Ocean Blvd.
Pompano Beach, Florida 33062
Asia-America Corporation Nevada
73-251 Amber Street
Palm Desert, California 92260
SECOND: That a plan of merger between the parties to the Merger has been
approved and adopted, by the board of directors of each of the Constituent
Corporations in accordance with the requirements of Florida and Nevada law and
that upon filing this document with the Secretary of State of Florida and the
Secretary of State of Nevada, the Merger shall be effective (the "Effective
Time").
THIRD: The surviving corporation of the Merger is Asia-America
Corporation, a Nevada corporation (the "Surviving Corporation").
FOURTH: The terms and conditions of the Merger and the manner and basis of
converting the shares of the Constituent Corporations is as follows:
(a) CORPORATE EXISTENCE
(1) From and after the Effective Time, Asia-America Corporation ("AAC")
as the Surviving Corporation shall continue its corporate existence as a
Nevada corporation and (i) it shall thereupon and thereafter possess all
rights, privileges, powers, franchises and property (real, personal and
mixed) of each of the Constituent Corporations; (ii) all debts due to
either of the Constituent Corporations, on whatever account, all causes in
action and all other things
belonging to either of the Constituent Corporations shall be taken and
deemed to be transferred to and shall be vested in the Surviving
Corporation by virtue of the Merger without further act or deed; (iii) the
title to any real estate vested by deed or otherwise, under the laws of any
jurisdiction, in either of the Constituent Corporations, shall not revert
or be in any way impaired by reason of the Merger; and (iv) all rights of
creditors and all liens upon any property of any of the Constituent
Corporations shall be preserved unimpaired, and all debts, liabilities and
duties of the Constituent Corporations shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as
if such debts, liabilities and duties had been incurred or contracted by
the Surviving Corporation.
(2) From and after the Effective Time, (i) the Articles of
Incorporation and By-laws of AAC, as existing immediately prior to the
Effective Time, shall be the Articles of Incorporation and By-Laws of the
Surviving Corporation subject to amendments adopted herein and any
subsequent amendments; (ii) the members of the Board of Directors of First
American Railways, Inc. ("First American") holding office immediately prior
to the Effective Time shall become the members of the Board of Directors of
the Surviving Corporation, each to serve subject to the Surviving
Corporation's by-laws; (iii) AAC shall change its name to First American
Railways, Inc.; (iv) all persons who hold executive offices of First
American at the Effective Time shall be elected by the board of directors
of the Surviving Corporation to hold the same offices of the Surviving
Corporation, each to serve subject to the Surviving Corporation's by-laws.
(b) CONVERSION OF SECURITIES
As of the Effective Time and without any action on the part of the
Constituent Corporations or the holders of any of the securities of either of
these corporations each of the events set forth below shall occur. All
capitalized terms are defined in the Agreement and Plan of Merger referred to in
the SEVENTH article hereof:
(1) Each of the First American Historical Shares issued and outstanding
immediately prior to the Effective Time shall be converted into one share
of AAC Common Stock (after giving effect to the AAC 1-for-108 Reverse Stock
Split). All such shares of First American Common Stock shall no longer be
outstanding and shall automatically be canceled and shall cease to exist,
and each certificate previously evidencing any such shares shall thereafter
represent the right to receive certificates evidencing such number of
shares of AAC Common Stock into which such shares of First American Common
Stock were converted. The holders of such certificates previously
evidencing shares of First American Common Stock outstanding immediately
prior to the Effective Time shall cease to have any rights with respect to
such shares of First American Common Stock except as otherwise provided
herein or by law;
2
(2) Any shares of First American Common Stock held in the treasury of
First American immediately prior to the Effective Time shall automatically
be canceled and extinguished without any conversion thereof and no payment
shall be made with respect thereto;
(3) In fulfillment of the obligation of First American to issue
securities underlying Units sold in its Private Placement to purchasers in
the Private Placement, AAC shall issue on the terms and subject to the
conditions set forth in the Memorandum: (a) shares of AAC Common Stock on
the basis of one share for each share of First American Common Stock sold
in the Private Placement, (b) a Convertible Secured Note in the principal
amount of $15,000 for each Convertible Secured Note sold in the Private
Placement, and (c) Series A Redeemable Warrants to purchase shares of AAC
Common Stock, on the basis of one AAC Series A Redeemable Warrant for each
Series A Redeemable Warrant purchased in the Private Placement. The terms
of the Convertible Secured Notes and Series A Redeemable Warrants shall be
as described in the Memorandum and in the form of such securities as
attached thereto as exhibits, and AAC hereby agrees to assume all
responsibility, upon Closing, to implement the security arrangements,
sinking fund and other arrangements as defined and contemplated in the
Memorandum, including, without limitation, the obligation to issue Series A
Redeemable Warrants in the event of prepayment of the Convertible Secured
Notes;
(4) Subject to completion of the sale of at least the Minimum Offering
in the Private Placement, AAC shall, at Closing, issue to Capital Growth
International, LLC ("CGI") or its designees, after giving effect to the AAC
reverse stock spilt, 750,000 shares of AAC Common Stock and Series A
Redeemable Warrants to purchase 650,000 shares of AAC Common Stock under
the terms and conditions of the Placement Agent Agreement between First
American and CGI dated February 27, 1996, and as described in the
Memorandum.
(5) The 350,000 shares of AAC Common Stock (after giving effect to the
AAC Reverse Stock Split) previously issued and outstanding prior to the
Merger will remain issued and outstanding;
(6) At Closing, there shall be no securities other than those described
in the Memorandum, convertible into or exercisable or exchangeable for
shares of First American Common Stock except as described in the
Memorandum.
FIFTH: Voting results for the merger are as follows:
(a) ASIA-AMERICA CORPORATION. The Plan of Merger (the "Plan") was
submitted to certain stockholders of Asia-America Corporation by the Board of
Directors on April 12, 1996, and out of 38,000,000 shares of common stock
entitled to vote on the Plan,
3
33,161,096 (87%) shares approved the plan by written consent, resulting in
approval of the Plan.
(b) FIRST AMERICAN RAILWAYS, INC. The Plan was submitted to certain
stockholders of First American Railways, Inc. by the Board of Directors on April
15, 1996, and out of 4,650,007 shares of common stock entitled to vote on the
Plan, 4,025,746 (86.6%) shares approved the Plan by written consent, resulting
in approval of the Plan.
(c) GENERAL. The number of votes cast for the Plan by each group was
sufficient under Florida and Nevada law for approval by that voting group.
SIXTH: The Articles of Incorporation of Asia-America Corporation are
hereby amended as follows
1. Article I is amended to read as follows:
ARTICLE I - NAME
The name of the corporation is First American Railways, Inc.
2. Article IV is amended to read as follows:
ARTICLE IV - STOCK
The aggregate number of shares which this Corporation shall have
authority to issue is:
(a) COMMON STOCK. The Corporation shall have authority to issue
100,000,000 shares of common stock having a par value of $.001 per share.
All shares of common stock shall have the same rights and shall not be
liable to any further call or assessment.
(b) PREFERRED STOCK. The Corporation shall have authority to issue
500,000 shares of preferred stock, $.001 par value, which may be issued in
one or more series and with such rights, preferences and designations as
determined by the Corporation's board of directors. All shares of any one
series shall be alike in every particular.
ARTICLE XII - LIABILITY OF DIRECTORS AND OFFICERS
No director of officer shall be personally liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty by such
persons as a director or officer. Notwithstanding the foregoing, a director or
officer shall be liable to the extent provided by applicable law, (i) for acts
or omissions which involve
4
intentional misconduct, fraud or a knowing violation of law, or (ii) for the
payment of dividends in violation of NRS 78.300.
SEVENTH: The Agreement and Plan of Merger dated April 15, 1996, by and
between AAC and First American is on file at the principal place of business of
AAC at One East First Street, Reno, Nevada 89501, and will be furnished on
request without cost to any stockholder of either of the constituent
corporations which are parties hereto.
EIGHTH: Upon this Merger becoming effective, the Surviving Corporation
acknowledges that it is deemed, under Florida law:
(a) To appoint the Secretary of State as its agent for service of
process in a proceeding to enforce any obligation or the rights of
dissenting shareholders of each domestic corporation party to the merger or
share exchange; and
(b) To agree that it will promptly pay to the dissenting shareholders
of each domestic corporation party to the merger or share exchange the
amount, if any, to which they are entitled under Section 607.1302, Florida
Statutes.
ASIA-AMERICA CORPORATION
By: /s/ DENNY W. NESTRIPKE
-----------------------------------
Denny W. Nestripke, President
and Secretary
FIRST AMERICAN RAILWAYS, INC.
By: /s/ ALLEN C. HARPER By: /s/ EUGENE K. GARFIELD
----------------------------------- -----------------------------------
Allen C. Harper, Chairman Eugene K. Garfield, President
5
STATE OF UTAH )
)ss.
COUNTY OF SALT LAKE )
Before me the undersigned Notary Public in and for the said County and
State, personally appeared, Denny W. Nestripke, the President/Secretary of
Asia-America Corporation, a Nevada corporation, and signed the foregoing Plan
and Articles of Merger as his own free and voluntary act and deed for the uses
and purposes set forth therein.
IN WITNESS WHEREOF, I have set my hand and seal this 19th day of April,
1995.
My Commission Expires By: /s/ THOMAS G. KIMBLE
November 1, 1997 ----------------------------
NOTARY PUBLIC
Residing at:
6
STATE OF FLORIDA )
)ss:
COUNTY OF DADE )
Before me, the undersigned Notary Public in and for the said County and
State, personally appeared Allen C. Harper and Eugene K. Garfield, the Chairman
of the Board and President, respectively, of First American Railways, Inc., a
Florida corporation, who are personally known to me and who signed the foregoing
Plan and Articles of Merger on behalf of the corporation.
Dated April 22, 1996
By: /s/ MARGARET O'D. RYDER
-----------------------------------
Margaret O'D. Ryder
Notary Public, State of Florida
My commission expires:
7