EXHIBIT 3.3
ARTICLES OF INCORPORATION
OF
ASC MERGER CORP.
NAME
One: The name of the corporation is: ASC Merger Corp.
PURPOSE
Two: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
AGENT FOR SERVICE
Three: The name in the State of California of the corporation's initial
agent for service of process is:
CORPORATION SERVICE COMPANY WHICH WILL DO BUSINESS IN CALIFORNIA AS
CSC-LAWYERS INCORPORATING SERVICE
AUTHORIZED SHARES
Four: The corporation is authorized to issue only one class of shares
of stock; the total number of shares which the corporation is authorized to
issue is one hundred (l00) designated as Common Stock, with a par value of
$.00l per share.
LIABILITY OF DIRECTORS/INDEMNIFICATION
Five: (a) The liability of the directors of the Corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
(b) The Corporation is authorized to provide for, whether by bylaw,
agreement or resolution of the Board of Directors or shareholders of the
Corporation the indemnification of agents (as defined in Section 317 of the
California General Corporation Law) of the Corporation in excess of that
expressly permitted by such
Section 317 for breach of duty to the Corporation and its shareholders to the
fullest extent permissible under California law.
(c) Any repeal or modification of the foregoing provisions of this Article
Five by the shareholders of the Corporation shall not adversely affect any right
or protection of a director or agent of the Corporation existing at the time of
such repeal or modification.
DATE: December 28, 1993
/S/ CATHERINE A. TRIENEN
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Catherine A. Treinen
Incorporator
2
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AGREEMENT OF MERGER
Among
AEROSOL SERVICES HOLDING CORPORATION,
ASC MERGER CORP.
and
AEROSOL SERVICES COMPANY, INC.
Dated as of February 14, 1994
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
THE MERGER
1.01 The Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Effective Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.03 Effect of the Merger. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04 Certificate of Incorporation; By-Laws . . . . . . . . . . . . . . . . . 2
1.05 Directors and Officers. . . . . . . . . . . . . . . . . . . . . . . . . 3
1.06 Conversion of Securities. . . . . . . . . . . . . . . . . . . . . . . . 3
1.07 Surrender of Shares; Stock Transfer Books . . . . . . . . . . . . . . . 3
ARTICLE II
MISCELLANEOUS
2.01 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.03 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.04 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated as of February 14, 1994 (the
"AGREEMENT") among AEROSOL SERVICES HOLDING CORPORATION, a Delaware
corporation ("PARENT"), ASC MERGER CORP., a California corporation and a
wholly-owned subsidiary of Parent ("ASC MERGER"), and AEROSOL SERVICES
COMPANY, INC., a California corporation (the "COMPANY").
WHEREAS, the Boards of Directors of Parent, ASC Merger and the
Company have each determined that it is in the best interests of their
respective shareholders for Parent to acquire the Company upon the terms and
subject to the conditions set forth herein, and
WHEREAS, in furtherance thereof, and as more fully described in a
Purchase and Merger Agreement dated February 14, 1994 (the "Agreement of
Purchase and Merger"), it is proposed that ASC Merger shall make an offer
(the "OFFER") to merge with the Company and thus acquire all of the business
of the Company, and through which merger, each share of the issued and
outstanding common stock of the Company, par value $10.00 per share (the
"COMPANY COMMON STOCK") (all issued and outstanding shares of Company Common
Stock being hereinafter collectively referred to as the "SHARES") shall be
exchanged for (i) $5,763.69 per share (the "PER SHARE AMOUNT" net to the
sellers in cash, subject to adjustment as provided in Section 2.01 of the
Agreement of Purchase and Merger; (ii) $540.35 per share (the "PER SHARE
CONVERSION") in face amount of the 10% Cumulative Redeemable Preferred Stock
of Parent; and
WHEREAS, the Board of Directors of the Company has unanimously
approved the making of the Offer and resolved and agreed to recommend that
shareholders of the Company approve the Offer; and
WHEREAS, also in furtherance or such acquisition, the Boards of
Directors of Parent, ASC Merger and the Company have each approved the merger
(the "MERGER") of the Company with and into ASC Merger following the Offer in
accordance with the California Corporation Code of the State of California
("California Law") and upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, ASC merger and the Company hereby agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER. Upon the terms and subject to the conditions
precedent set forth in Sections 8.01 and 8.02 of the Purchase and Merger
Agreement and in accordance with California Law at the Effective Time (as
defined in Section 1.02) the Company shall be merged with and into ASC
Merger. As a result of the Merger, the separate corporate existence of the
Company shall cease and ASC Merger shall continue as the surviving
corporation of the Merger (the "SURVIVING CORPORATION").
SECTION 1.02. EFFECTIVE TIME. As promptly as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in
Section 8.01 and 8.02 of the Purchase and Merger Agreement the parties hereto
shall cause the Merger to be consummated by filing this Agreement or a
certificate of merger (the "CERTIFICATE OF MERGER") with the Secretary of
State of the State of California, in such form as required by and executed in
accordance with the relevant provisions of California Law (the date and time
of such filing being the "EFFECTIVE TIME").
SECTION 1.03. EFFECT OF THE MERGER. At the Effective Time, the effect
of the Merger shall be as provided in the applicable provisions of California
Law. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time all the property, rights, privileges, powers and
franchises of the Company and ASC Merger shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the company and ASC
Merger shall become the debts, liabilities and duties of the Surviving
Corporation.
SECTION 1.04. ARTICLES OF INCORPORATION, BY-LAWS. (a) Unless otherwise
determined by parent prior to the Effective Time, at the Effective Time the
Articles of Incorporation of ASC Merger, as in effect immediately prior to
the Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended as provided by law and such Articles of
Incorporation; PROVIDED, HOWEVER that, at the Effective Time, Article First
of the Articles of Incorporation of the Surviving Corporation shall be
amended to read as follows: "FIRST: The name of the corporation is Aerosol
Services Company, Inc."
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(b) The By-Laws of ASC Merger, as in effect immediately prior to the
Effective Time, shall be the By-Laws of the Surviving Corporation until
thereafter amended as provided by law, the Articles of Incorporation of the
Surviving Corporation and such By-Laws.
SECTION 1.05. DIRECTORS AND OFFICERS. The directors of such ASC Merger
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Articles of
Incorporation and By-laws of the Surviving Corporation, and the officers of
ASC Merger immediately prior to the Effective Time shall be the initial
officers of the surviving Corporation, in each case until their respective
successors are duly elected or appointed and qualified.
SECTION 1.06. CONVERSION OF SECURITIES. At the Effective Time, by
virtue of the Merger and without any action on the part of ASC Merger, the
Company or the holders of any of the following securities:
(a) Each Share issued and outstanding immediately prior to the
Effective Time shall be cancelled and shall be converted automatically into
the right to receive an amount equal to the Per Share Amount in cash and the
Per Share conversion in 10% Cumulative Redeemable Preferred Stock of Parent
(the "MERGER CONSIDERATION") payable and issuable to the holder thereof,
without interest, upon surrender of the certificate formerly representing
such Share in the manner provided in Section 1.07.
(b) Each share of Company Common Stock held in the treasury of the
Company and each share held by ASC Merger, Parent or any direct or indirect
wholly-owned subsidiary of Parent or of the Company immediately prior to the
Effective Time shall be cancelled without any conversion thereof and no
payment or distribution shall be made with respect thereto.
(c) Each share of common stock, par value $.001 per share, of ASC
merger issued and outstanding immediately prior to the Effective Time shall
remain outstanding as a fully paid and nonassessable share of common stock,
par value $.001 per share, of the Surviving Corporation.
SECTION 1.07. SURRENDER OF SHARES. Promptly after the Effective Time,
the Surviving Corporation shall cause to be delivered to each record holder,
as of the Effective Time, of an outstanding certificate or certificates which
immedi-
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ately prior to the Effective Time represented Shares (the "Certificates")
instructions for use in effecting the surrender of the Certificates for
Payment of the Merger Consideration therefor. Upon surrender to the
Surviving Corporation of a Certificate, and such other documents as may be
required pursuant to such instructions, the holder of such Certificate shall
be entitled to receive in exchange therefor the Merger Consideration for each
Share formerly represented by such Certificate, and such Certificate shall
then be cancelled. No interest shall be paid or accrued for the benefit of
holders of the Certificates on the Merger Consideration payable upon the
surrender of the Certificates. If payment of the Merger Consideration is to
be made to a person other than the person in whose name the surrendered
Certificate is registered, it shall be a condition of payment that the
Certificate is registered, it shall be a condition of payment that the
Certificate so surrendered shall be properly endorsed or shall be otherwise
in proper form for transfer and that the person requesting such payment shall
have paid any transfer and other taxes required by reason of the payment of
the Merger Consideration to a person other than the registered holder of the
Certificate surrendered or shall have established to the satisfaction of the
Surviving Corporation that such tax either has been paid or is not applicable.
(b) At the Effective Time, the stock transfer books of the Company
shall be closed and thereafter there shall be no further registration of
transfers of shares of Company Common Stock on the records of the Company.
From and after the Effective Time, the holders of Certificates evidencing
ownership of Shares outstanding immediately prior to the Effective Time shall
cease to have any rights with respect to such Shares except as otherwise
provided for herein or by applicable law.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. GOVERNING LAW. The validity, interpretation and effect
of this Agreement shall be exclusively governed by, and construed in
accordance with, the laws of the State of California.
SECTION 2.02. NOTICES. All notices, requests, demands, and other
communications under this Agreement shall be in writing and delivered in
person (including by courier) or by telecopy, or sent by certified mail,
postage prepaid, and properly addressed as follows:
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TO THE COMPANY:
Aerosol Services Company, Inc.
425 So. Ninth Avenue
City of Industry, California 91746
WITH A COPY TO:
Kindel & Anderson
355 South Flower Street
Los Angeles, California 90071
Attn: Hugh Boss, Esq.
TO PARENT OF ASC MERGER:
c/o The Gordon + Morris Group
620 Newport Center Drive
Suite 1400
Newport Beach, California 92660
Attn: John H. Morris
WITH COPIES TO:
Jones, Day, Reavis & Pogue
2600 Main Street
Suite 900
Irvine, California 92714-6232
Attn: Peter J. Tennyson
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 2.02 shall, if
delivered personally (including delivery by courier) or by telecopy, be
effective upon delivery and shall, if delivered by mail, be effective four (4)
business days
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following deposit in the United States Mail, postage prepaid. Any party may
from time to time change its address for the purpose of notices to that party
by a similar notice specifying a new address, but no such notice shall be
deemed to have been given until it is actually received by the party sought
to be charged with the contents.
SECTION 2.03. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
all affixed together shall be deemed to be one and the same instrument.
SECTION 2.04. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon any binding determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in an
acceptable and legally enforceable manner, to the end that the transactions
contemplated hereby may be completed to the extent possible.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
AEROSOL SERVICES HOLDING AEROSOL SERVICES HOLDING
CORPORATION, a Delaware corporation CORPORATION, a Delaware corporation
By: /s/ BOBBIE J. HALL By: /s/ JOHN H. MORRIS
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Title: VICE PRESIDENT AND ASSISTANT Title: PRESIDENT
SECRETARY
ASC MERGER CORPORATION, ASC MERGER CORPORATION,
a California corporation a California corporation
By: /s/ BOBBIE J. HALL By: /s/ JOHN H. MORIS
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Title: VICE PRESIDENT AND ASSISTANT Title: PRESIDENT
SECRETARY
AEROSOL SERVICES COMPANY, INC., a AEROSOL SERVICES COMPANY, INC., a
California corporation California corporation
By: /s/ BOBBIE J. HALL By: /s/ WALTER K. LIM
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Title: VICE PRESIDENT AND ASSISTANT Title: PRESIDENT
SECRETARY
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CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
Drew Adams certifies that:
l. He is the vice-president and the assistant secretary of ASC Merger Corp., a
California corporation.
2. The Agreement of Merger in the form attached was duly approved by the board
of directors and shareholders of the corporation.
3. The shareholder approval was by the holders of 100% of the outstanding
shares of the corporation.
4. There is only one class of shares and the number of shares outstanding is
91.
I further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of my own knowledge.
DATED: February 14, 1994
/s/ DREW ADAMS
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Drew Adams, Vice-President and
Assistant Secretary
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CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
Walter Lim and Howard Lim certify that:
1. They are the president and the secretary, respectively, of Aerosol Services
Company, Inc., a California corporation.
2. The Agreement of Merger in the form attached was duly approved by the board
of directors and shareholders of the corporation.
3. The shareholder approval was by the holders of 100% of the outstanding
shares of the corporation.
4. There is only one class of shares and the number of shares outstanding is
400.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
DATE: February 14, 1994
/s/ WALTER K. LIM
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Walter K. Lim
President
/s/ HOWARD C. LIM
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Howard C. Lim
Secretary
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CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
Drew Adam certifies that:
l. He is the vice-president and the assistant secretary of Aerosol Services
Holding Corporation, a Delaware corporation.
2. The Agreement of Merger in the form attached was duly approved by the board
of directors of the corporation.
3. Shareholder approval was not required. The corporation is the parent of
ASC Merger Corp., a constituent corporation in the merger. The corporation
did not issue stock in the merger; its stock, which was exchanged in the
merger, had previously been issued to ASC Merger Corp. for cash.
I further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of my own knowledge.
DATE: February 14, 1994
/s/ DREW ADAMS
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Drew Adams, Vice-President and
Assistant Secretary
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