AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is
entered into as of June 20, 1997, by and between AEROSOL COMPANIES HOLDING
CORPORATION, a Delaware corporation ("ACHC"), and AEROSOL SERVICES HOLDING
CORPORATION, a Delaware corporation ("ASHC").
RECITALS:
A. ACHC and ASHC are each corporations duly organized and
existing under the laws of the State of Delaware.
B. On the date of this Merger Agreement, ACHC's authorized
capital consists of 1,000,000 shares of Common Stock, par value $.01 per
share (the "ACHC Common Stock"), of which 700,000 shares are issued and
outstanding.
C. On the date of this Merger Agreement, ASHC's authorized
capital consists of 1,000,000 shares of Common Stock, par value $.001 per
share (the "ASHC Common Stock"), of which 629,842 shares are issued and
outstanding, and 30,000 shares of Preferred Stock, par value $.001 per
share (the "ASHC Preferred Stock"), all of which are issued and
outstanding.
D. The respective Boards of Directors of ACHC and ASHC have
determined that it is advisable and in the best interests of each such
corporation that ACHC merge with and into ASHC upon the terms and subject
to the conditions of this Merger Agreement.
E. The respective Boards of Directors of ACHC and ASHC have,
by resolutions duly adopted, approved this Merger Agreement. The
respective stockholders of ACHC and ASHC have, by a majority of the shares
of each of ACHC and ASHC outstanding, adopted and approved this Merger
Agreement.
F. The parties intend by this Merger Agreement to effect a
"reorganization" under Section 368 of the Internal Revenue Code of 1986,
as amended.
TERMS AND PROVISIONS:
In consideration of the foregoing recitals and of the following
terms and provisions, and subject to the following conditions, it is
agreed:
1. MERGER. At the Effective Time (as defined in this Section
l), ACHC shall be merged with and into ASHC (the "Merger"), ASHC shall be
the surviving corporation of the Merger (hereinafter sometimes referred to
as the "Surviving Corporation"), and the separate corporate existence of
ACHC shall cease. The Merger shall become effective on the date that a
Certificate of Merger is filed with the Secretary of State of the State of
Delaware. The date and time when the Merger shall become effective is
herein referred to as the "Effective Time."
2. GOVERNING DOCUMENTS.
a. The Certificate of Incorporation of ASHC as in effect
immediately prior to the Effective Time shall constitute the Certificate of
Incorporation of the Surviving Corporation without change or amendment
until thereafter amended in accordance with the provisions thereof and
applicable law, except that the Certificate of Incorporation of ASHC shall
be amended at the Effective Time to:
(1) change the name of the Surviving Corporation to
Outsourcing Services Group, Inc.; and
(2) increase the authorized number of shares of ASHC
Common Stock to 2,000,000, and to amend the terms of the
ASHC Preferred Stock to, among other things, authorize
3,750 shares of Series A Preferred Stock (the "ASHC Series
A Preferred Stock") and 26,250 shares of Series B
Preferred Stock (the "ASHC Series B Preferred Stock") as
more fully described in the Certificate of Merger.
b. The Bylaws of ASHC as in effect immediately prior to
the Effective Time shall constitute the Bylaws of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof and applicable law.
3. OFFICERS AND DIRECTORS. The persons who are listed below
as officers and directors of ASHC shall, after the Effective Time, be the
officers and directors of the Surviving Corporation, without change until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the
Surviving Corporation's Certificate of Incorporation and Bylaws and
applicable law.
Officers Position
Walter K. Lim Chairman, President
Samuel D. Garretson Vice Chairman
Howard C. Lim Executive Vice President
John G. Hewson Chief Operating Officer
Joseph W. Sortais Chief Financial Officer,
Treasurer, Secretary
Directors
Walter K. Lim
Samuel D. Garretson
Howard C. Lim
Frank Edelstein
Michael S. Gordon
Joseph A. Marino
John H. Morris
Robert M. Wadsworth
4. NAME. The name of the Surviving Corporation shall be
changed to Outsourcing Services Group, Inc.
5. SUCCESSION. At the Effective Time, the separate corporate
existence of ACHC shall cease, and the Surviving Corporation shall possess
all the rights, privileges, powers and franchises of a public or private
nature and be subject to all the restrictions, disabilities and duties of
ACHC; and all the rights, privileges, powers and franchises of ACHC, and
all property, real, personal and mixed, and all debts due to ACHC on
whatever account, as well as for share subscriptions and all other things
in action, 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 ACHC, and the title to any real estate vested
by deed or otherwise shall not revert or be in any way impaired by reason
of the Merger; but all rights of creditors and liens upon any property of
ACHC shall be preserved unimpaired, and all debts, liabilities and duties
of ACHC 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 it; provided, however, that such
liens upon property of ACHC will be limited to the property affected
thereby immediately prior to the Merger. All corporate acts, plans,
policies, agreements, arrangements, approvals and authorizations of ACHC,
its stockholders, Board of Directors and committees thereof, officers and
agents which were valid and effective immediately prior to the Effective
Time, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Surviving
Corporation and shall be as effective and binding thereon as the same were
with respect to ACHC.
6. FURTHER ASSURANCES. From time to time, as and when required
or requested by the Surviving Corporation or by its successors and
assigns, there shall be executed and delivered on behalf of ACHC such
deeds, assignments and other instruments, and there shall be taken or
caused to be taken by it all such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of ACHC and otherwise to carry out the purposes of
this Merger Agreement, and the officers and directors of the Surviving
Corporation are fully authorized in the name and on behalf of ACHC or
otherwise, to take any and all such actions and to execute and deliver any
and all such deeds, assignments and other instruments.
7. CONVERSION OF SHARES. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
a. Each share of ASHC Common Stock issued and
outstanding immediately prior to the Effective Time shall be converted
into, and shall become, 0.756478 fully paid and nonassessable shares of
ASHC Common Stock, rounded to the nearest whole share.
b. Each share of ACHC Common Stock issued and
outstanding immediately prior to the Effective Time shall be converted
into, and shall become, 1.219115 fully paid and nonassessable shares of
ASHC Common Stock, rounded to the nearest whole share.
c. Each share of ASHC Preferred Stock issued to Nancy N.
Lim and outstanding immediately prior to the Effective Time shall be
converted into, and shall become, one fully paid and nonassessable share of
ASHC Series A Preferred Stock. All accrued and unpaid dividends payable to
Nancy N. Lim on the ASHC Preferred Stock immediately prior to the Effective
Time shall continue to be payable in accordance with the terms of the ASHC
Series A Preferred Stock.
d. Each share of ASHC Preferred Stock issued to Walter
K. Lim and Howard C. Lim and outstanding immediately prior to the Effective
Time shall be converted into, and shall become, one fully paid and
nonassessable share of ASHC Series B Preferred Stock. All accrued and
unpaid dividends payable to Walter K. Lim and Howard C. Lim, respectively,
on the ASHC Preferred Stock immediately prior to the Effective Time shall
be paid to Walter K. Lim and Howard C. Lim upon redemption of the ASHC
Series B Preferred Stock as part of the liquidation dividend preference on
the Series B Preferred Stock.
8. STOCK CERTIFICATES. At and after the Effective Time, all
of the outstanding certificates which immediately prior to the Effective
Time represented shares of ACHC Common Stock, ASHC Common Stock and ASHC
Preferred Stock shall be deemed for all purposes to evidence ownership of,
and to represent shares of, the ASHC Common Stock, ASHC Series A Preferred
Stock and ASHC Series B Preferred Stock into which the shares formerly
represented by such certificates have been converted as herein provided.
The registered owner on the books and records of ASHC, ACHC or their
transfer agent(s) of any such outstanding stock certificate shall, until
such certificate has been surrendered for transfer or otherwise accounted
for to the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting or other rights with respect to and to
receive any dividends and other distributions upon the shares of ASHC
Common Stock, ASHC Series A Preferred Stock or ASHC Series B Preferred
Stock evidenced by such outstanding certificate as above provided.
9. REPRESENTATIONS AND WARRANTIES.
a. ACHC hereby represents and warrants to ASHC as
follows:
(1) ACHC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
has full corporate power and authority to perform this Agreement and to
conduct its business as it is presently being conducted.
(2) The execution and delivery of this Agreement by
ACHC and the performance of its obligations hereunder have been duly
authorized by the directors and stockholders of ACHC, and no other
corporate action or approval by ACHC is necessary for the execution,
delivery or performance of this Agreement by ACHC. This Agreement has been
duly executed and delivered by ACHC, and is a valid and binding obligation
of ACHC, enforceable against it in accordance with its terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in
effect, relating to or limiting creditors' rights generally, and (b)
general principles of equity (whether considered in an action in equity or
at law).
b. ASHC hereby represents and warrants to ACHC as follows:
(1) ASHC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
has full corporate power and authority to perform this Agreement and to
conduct its business as it is presently being conducted.
(2) The execution and delivery of this Agreement by
ASHC and the performance of its obligations hereunder have been duly
authorized by the directors and stockholders of ASHC, and no other
corporate action or approval by ASHC is necessary for the execution,
delivery or performance of this Agreement by ASHC. This Agreement has been
duly executed and delivered by ASHC, and is a valid and binding obligation
of ASHC, enforceable against it in accordance with its terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in
effect, relating to or limiting creditors' rights generally, and (b)
general principles of equity (whether considered in an action in equity or
at law).
10. CONDITIONS. The consummation of the Merger and related
transactions are subject to satisfaction of the following conditions prior
to the Effective Time:
a. All necessary action shall have been taken to
authorize the execution, delivery and performance of the Merger Agreement
by ACHC and ASHC.
b. All regulatory approvals necessary or desirable in
connection with the consummation of the Merger and the transaction
contemplated thereby shall have been obtained.
c. No suit, action, proceeding or other litigation shall
have been commenced or threatened to be commenced which, in the opinion of
ACHC or ASHC would pose a material restriction on or impair the
consummation of the Merger, performance of this Merger Agreement or the
conduct of the business of the Surviving Corporation after the Effective
Time, or create a risk of subjecting ACHC or ASHC, or their respective
stockholders, officers or directors, to material damages, costs, liability
or other relief in connection with the Merger or this Merger Agreement.
11. GOVERNING LAW. This Merger Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware
applicable to contracts entered into and to be performed wholly within the
State of Delaware.
12. AMENDMENT. Subject to applicable law and subject to the
rights of the stockholders of ACHC or ASHC further to approve any amendment
which would have a material adverse effect on such stockholders, this
Merger Agreement may be amended, modified or supplemented by written
agreement of the parties hereto at any time prior to the Effective Time
with respect to any of the terms contained herein.
13. DEFERRAL OR ABANDONMENT. At any time prior to the
Effective Time, this Merger Agreement may be terminated and the Merger may
be abandoned or the time of consummation of the Merger may be deferred for
a reasonable time by the Board of Directors of either ACHC or ASHC, or
both, notwithstanding approval of this Merger Agreement by the stockholders
of either ACHC or ASHC, or both, if circumstances arise which, in the
opinion of the Board of Directors of ACHC or ASHC, make the Merger
inadvisable or such deferral of the time of consummation advisable.
14. COUNTERPARTS. This Merger Agreement may be executed in
any number of counterparts, each of which when taken alone shall constitute
an original instrument and when taken together shall constitute one and the
same Agreement.
15. ASSURANCE. ACHC and ASHC agree to execute any and all
documents, and to perform such other acts, which may be necessary or
expedient to further the purposes of this Merger Agreement.
[Signature Page Follows]
[SIGNATURE PAGE - MERGER AGREEMENT]
IN WITNESS WHEREOF, ACHC and ASHC have caused this Merger
Agreement to be signed by their respective duly authorized officers and
delivered as of the date first written above.
AEROSOL COMPANIES HOLDING
CORPORATION, a Delaware corporation
By: /s/ Joseph Sortais
-------------------------------
Joseph W. Sortais
Chief Financial Officer
ATTEST:
By: /s/ Walter Lim
------------------------
Walter K. Lim, President
AEROSOL SERVICES HOLDING
CORPORATION, a Delaware corporation
By: /s/ Joseph Sortais
--------------------------------
Joseph W. Sortais
Chief Financial Officer
ATTEST:
By: /s/ Walter Lim
------------------------
Walter K. Lim, President