1
Exhibit 3.9
AMENDMENT TO
PLAN AND AGREEMENT OF CONSOLIDATION
This Amendment to the Agreement and Plan of Consolidation dated as of
June 30, 1997 (the "Consolidation Agreement"), is by and between AquaPro
Corporation (the "Company"), Circle Creek Aquaculture V, L.P. (the
"Participating Partnership"), and CCA V, Inc. (the "Participating Corporation")
hereinafter sometimes together referred to as the "Parties", effective June 30,
1997.
WITNESSETH:
WHEREAS, the Company desires to consolidate the business of the
Participating Partnership with its own pursuant to its acquisition of all of the
assets and assumption of all of the liabilities of the Participating Partnership
pursuant to a series of transactions (the "Consolidation") as set forth in the
Prospectus And Consent Solicitation Statement of the Company, dated May 28,
1997, and any and all supplements or amendments thereto (the "Prospectus"); and
WHEREAS, the Company and the Participating Partnership have entered
into the Consolidation Agreement with the Participating Partnership and the
Participating Corporation, which is wholly owned by the Participating
Partnership; and
WHEREAS, the Parties had agreed to the terms and conditions of the
Consolidation transactions provided for in the Consolidation Agreement with
reference to certain laws of the state of Tennessee and federal securities laws
then in effect; and
WHEREAS, the Parties have determined that, at the time of this
Amendment, compliance by the Consolidation with the corporate laws of the state
of Tennessee, the federal securities laws and the applicable securities laws of
certain states would no longer require the intermediate transfer of the
Participating Partnership's assets and liabilities to its Participating
Corporation from which such assets would be purchased and such liabilities
assumed by the Company and have determined that under the applicable federal and
state securities laws and the corporate and partnership laws of the state of
Tennessee, the Consolidation can be effected and the limited partners of the
Participating Partnership can receive the consideration proposed pursuant to a
merger of the Participating Partnership and the parties hereto now desire to
amend the Consolidation Agreement to so provide; and
WHEREAS, the consolidation transactions, including the Consolidation
Agreement, have been approved by the Company's shareholders and the required
number of limited partners of the Participating Partnership; and
WHEREAS, the Consolidation Agreement in Article XII, Section 3 thereof,
expressly provides that the parties may amend this Agreement in their discretion
from time to time, by their mutual agreement, provided that no such amendment
shall alter or change the amount or kind of consideration which the shareholders
or holders of debt obligations of the Participating Corporation are entitled to
receive, or shall alter or change the terms and conditions of the Agreement if
such alteration or change would have a material adverse affect on the
shareholders or the holders of any debt obligations of the Participating
Corporation or the shareholders of the Company; and
WHEREAS, the Parties now desire to amend the Consolidation Agreement in
the manner allowed in Article XII, Section 3 thereof, whereas the transactions
constituting the consolidation, as amended, by the parties pursuant hereto are
expressly authorized by the Tennessee Business Corporation Act (the "Corporation
Act") and the Tennessee Revised Uniform Limited Partnership Act ("RULPA"); and
2
WHEREAS, the charter and bylaws of the Company and the Agreement of
Limited Partnership of the Participating Partnership permit, and resolutions by
the general partners of the Participating Partnership, and the Board of
Directors of the Company authorize, this Amendment to the Consolidation
Agreement (this "Amendment") and the consummation of the Consolidation;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby amend the Consolidation Agreement as follows:
1. PARTICIPATING CORPORATION NO LONGER A PARTY. The Parties agree that
upon the effective date of this Amendment, the Participating Corporation shall
no longer be party to the Consolidation Agreement, and the Participating
Corporation shall have no further responsibility, duties or liabilities
thereunder.
2. AMENDMENT TO ARTICLES I THROUGH IV, INCLUSIVE. Article I,
Article II, Article III and Article IV of the Consolidation Agreement are hereby
amended and restated in their entirety to read as follows.
ARTICLE I
THE MERGER
1.01 THE CONSOLIDATION; SURVIVING CORPORATION. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), the assets and liabilities of the Participating Partnership
shall become the assets and liabilities of the Company by purchase, transfer,
assignment and assumption pursuant to the Corporation Act and the Participating
Partnership shall immediately as of the Effective Time, as defined below, be
merged into the Company and the Limited Partner Interests (the "L.P. Units") of
each Participating Partnership then outstanding shall thereupon become Units and
Notes of the Company, as each is defined herein by reference to the Prospectus,
as a result of the Consolidation as provided in Article III below. The Surviving
Corporation, as defined below, shall continue to be governed by the Corporation
Act.
1.02 EFFECTIVE TIME. In accordance with the Corporation Act, the
Consolidation shall become effective (the "Effective Time") upon the date of the
closing of the Consolidation as described herein effective as of June 30, 1997.
Any filings or recordings required by Tennessee law in connection with the
Consolidation shall also be made and the formal closing of the Consolidation
(the "Closing Date") shall occur contemporaneously with or as soon as practical
after the Effective Time.
1.03 EFFECT OF THE CONSOLIDATION. The Consolidation shall have the
effects set forth in this Agreement and in the Corporation Act.
ARTICLE II
THE SURVIVING CORPORATION
2.01 SURVIVING CORPORATION. The Surviving Corporation shall be the
Company.
2.02 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of the Company as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation and Bylaws of the
Company at the Effective Time.
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2.03 OFFICERS AND DIRECTORS. The officers of the Company immediately
prior to the Effective Time shall continue as officers of the Surviving
Corporation and remain officers until their successors are duly appointed or
their prior resignation, removal or death. The directors of the Company
immediately prior to the Effective Time shall continue as directors of the
Surviving Corporation and shall remain directors until their successors are duly
elected and qualified or their prior resignation, removal or death.
ARTICLE III
CONSIDERATION FOR PARTICIPATING PARTNERSHIP ASSETS
3.01 CONSIDERATION PAID BY THE COMPANY. At or as of the Effective
Time, the assets and the liabilities of the Participating Partnership shall by
the assets and liabilities of Company.
3.02 CONSIDERATION TO PARTICIPATING PARTNERSHIP AS A RESULT OF THE
CONSOLIDATION.
(1) Units. Except as provided in subsection 3.02(ii), as of
the Effective Time, each L.P. Unit of the Participating Partnership in
the Consolidation shall become ten and two hundred ninety-five one
thousandths (10.295) Units. No fractional Units shall be issued. Any
Limited Partner of a Participating Partnership who would be entitled to
a fractional Unit will receive the next whole Unit greater than such
fraction. A Unit of the Company shall consist of one share of the
Company's no par value Common Stock, one 90-Day $9.50 Series A
Preferred Stock Purchase Right, one 12-Month $7.50 Stock Purchase
Warrant and one 24-Month $9.50 Stock Purchase Warrant, as each is
defined in the Prospectus.
(2) Issuance of Notes. As of the Effective Time, each Limited
Partner Unit of the Participating Partnership held of record by a
holder who does not vote in favor of the Consolidation or who does not
otherwise elect to receive Units shall become entitled to receive the
Company's unsecured, convertible 7.15% Note due December 31, 2003, as
further described in the Prospectus (the "Notes") in a principal amount
of forty-six and ninety-four one hundredths dollars ($46.94).
3.04 ISSUANCE OF CERTIFICATE FOR UNITS AND NOTES. Upon or as soon as
practicable after the Effective Time, the Company shall distribute in accordance
with this Agreement to the holders of the L.P. Units of each Participating
Partnership the Unit Certificates and 7.15% Notes to which they are entitled
pursuant hereto.
ARTICLE IV
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
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4.01 TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time, the
Company shall continue its existence as the Surviving Corporation, and by
conveyance, transfer and assumption, succeed to and possess all the rights,
privileges and powers of the Participating Partnership, and all the assets and
property of whatever nature and character of the Participating Partnership shall
vest in the Company; thereafter the Company shall be liable for all of the
liabilities and obligations of the Participating Partnership, and any claim or
judgment against the Participating Partnership may be enforced against the
Company. The Company and such Participating Partnership shall execute such
documents as either of them shall deem necessary to effect the foregoing.
4.02 CONSISTENT INTERPRETATION. The parties agree that the Articles of
the Consolidation Agreement not expressly amended by the foregoing, to the
extent that they may be inconsistent with the foregoing amendments, shall be
interpreted and enforced in a manner that is consistent with Article I, Article
II, Article III, and Article IV as herein amended. The parties agree to execute
such additional instruments and to take such further action as may be judged
necessary or appropriate by any of them in order to implement the transactions
provided for in the Consolidation Agreement as amended.
4.03 FURTHER ASSURANCES. If at any time the Company shall consider or
be advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record its title to any property or
right of the Participating Partnership or otherwise to carry out the provisions
hereof, the proper representatives of the Participating Partnership as of the
Effective Time shall execute and deliver any and all proper deeds, assignments
and assurances, and do all things necessary and proper to vest, perfect or
convey title to such property or right in the Company and otherwise to carry out
the provisions hereof.
4.04 NO IMPLIED CHANGES. Except as expressly provided for above, there
shall be no other changes in the terms and conditions of the Consolidation
Agreement by this Amendment.
4.05 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, which counterpart agreement shall together constitute a single
original agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by an officer duly authorized to do so, all as of the date and year
first above written.
"THE COMPANY" "THE PARTICIPATING
PARTNERSHIP"
AQUAPRO CORPORATION,
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A TENNESSEE CORPORATION CIRCLE CREEK AQUACULTURE V, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------ -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ "THE PARTICIPATING CORPORATION"
------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary
CCA V. INC.
A TENNESSEE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Secretary
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AMENDMENT TO
PLAN AND AGREEMENT OF CONSOLIDATION
This Amendment to the Agreement and Plan of Consolidation dated as of
June 30, 1997 (the "Consolidation Agreement"), is by and between AquaPro
Corporation (the "Company"), Circle Creek Aquaculture VI, L.P. (the
"Participating Partnership"), and CCA VI, Inc. (the "Participating Corporation")
hereinafter sometimes together referred to as the "Parties", effective June 30,
1997.
WITNESSETH:
WHEREAS, the Company desires to consolidate the business of the
Participating Partnership with its own pursuant to its acquisition of all of the
assets and assumption of all of the liabilities of the Participating Partnership
pursuant to a series of transactions (the "Consolidation") as set forth in the
Prospectus And Consent Solicitation Statement of the Company, dated May 28,
1997, and any and all supplements or amendments thereto (the "Prospectus"); and
WHEREAS, the Company and the Participating Partnership have entered
into the Consolidation Agreement with the Participating Partnership and the
Participating Corporation, which is wholly owned by the Participating
Partnership; and
WHEREAS, the Parties had agreed to the terms and conditions of the
Consolidation transactions provided for in the Consolidation Agreement with
reference to certain laws of the state of Tennessee and federal securities laws
then in effect; and
WHEREAS, the Parties have determined that, at the time of this
Amendment, compliance by the Consolidation with the corporate laws of the state
of Tennessee, the federal securities laws and the applicable securities laws of
certain states would no longer require the intermediate transfer of the
Participating Partnership's assets and liabilities to its Participating
Corporation from which such assets would be purchased and such liabilities
assumed by the Company and have determined that under the applicable federal and
state securities laws and the corporate and partnership laws of the state of
Tennessee, the Consolidation can be effected and the limited partners of the
Participating Partnership can receive the consideration proposed pursuant to a
merger of the Participating Partnership and the parties hereto now desire to
amend the Consolidation Agreement to so provide; and
WHEREAS, the consolidation transactions, including the Consolidation
Agreement, have been approved by the Company's shareholders and the required
number of limited partners of the Participating Partnership; and
WHEREAS, the Consolidation Agreement in Article XII, Section 3 thereof,
expressly provides that the parties may amend this Agreement in their discretion
from time to time, by their mutual agreement, provided that no such amendment
shall alter or change the amount or kind of consideration which the shareholders
or holders of debt obligations of the Participating Corporation are entitled to
receive, or shall alter or change the terms and conditions of the Agreement if
such alteration or change would have a material adverse affect on the
shareholders or the holders of any debt obligations of the Participating
Corporation or the shareholders of the Company; and
WHEREAS, the Parties now desire to amend the Consolidation Agreement in
the manner allowed in Article XII, Section 3 thereof, whereas the transactions
constituting the consolidation, as amended, by the parties pursuant hereto are
expressly authorized by the Tennessee Business Corporation Act (the "Corporation
Act") and the Tennessee Revised Uniform Limited Partnership Act ("RULPA"); and
7
WHEREAS, the charter and bylaws of the Company and the Agreement of
Limited Partnership of the Participating Partnership permit, and resolutions by
the general partners of the Participating Partnership, and the Board of
Directors of the Company authorize, this Amendment to the Consolidation
Agreement (this "Amendment") and the consummation of the Consolidation;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby amend the Consolidation Agreement as follows:
1. PARTICIPATING CORPORATION NO LONGER A PARTY. The Parties agree that
upon the effective date of this Amendment, the Participating Corporation shall
no longer be party to the Consolidation Agreement, and the Participating
Corporation shall have no further responsibility, duties or liabilities
thereunder.
2. AMENDMENT TO ARTICLES I THROUGH IV, INCLUSIVE. Article I, Article
II, Article III and Article IV of the Consolidation Agreement are hereby amended
and restated in their entirety to read as follows.
ARTICLE I
THE MERGER
1.01 THE CONSOLIDATION; SURVIVING CORPORATION. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), the assets and liabilities of the Participating Partnership
shall become the assets and liabilities of the Company by purchase, transfer,
assignment and assumption pursuant to the Corporation Act and the Participating
Partnership shall immediately as of the Effective Time, as defined below, be
merged into the Company and the Limited Partner Interests (the "L.P. Units") of
each Participating Partnership then outstanding shall thereupon become Units and
Notes of the Company, as each is defined herein by reference to the Prospectus,
as a result of the Consolidation as provided in Article III below. The Surviving
Corporation, as defined below, shall continue to be governed by the Corporation
Act.
1.02 EFFECTIVE TIME. In accordance with the Corporation Act, the
Consolidation shall become effective (the "Effective Time") upon the date of the
closing of the Consolidation as described herein effective as of June 30, 1997.
Any filings or recordings required by Tennessee law in connection with the
Consolidation shall also be made and the formal closing of the Consolidation
(the "Closing Date") shall occur contemporaneously with or as soon as practical
after the Effective Time.
1.03 EFFECT OF THE CONSOLIDATION. The Consolidation shall have the
effects set forth in this Agreement and in the Corporation Act.
ARTICLE II
THE SURVIVING CORPORATION
2.01 SURVIVING CORPORATION. The Surviving Corporation shall be the
Company.
2.02 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of the Company as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation and Bylaws of the
Company at the Effective Time.
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2.03 OFFICERS AND DIRECTORS. The officers of the Company immediately
prior to the Effective Time shall continue as officers of the Surviving
Corporation and remain officers until their successors are duly appointed or
their prior resignation, removal or death. The directors of the Company
immediately prior to the Effective Time shall continue as directors of the
Surviving Corporation and shall remain directors until their successors are duly
elected and qualified or their prior resignation, removal or death.
ARTICLE III
CONSIDERATION FOR PARTICIPATING PARTNERSHIP ASSETS
3.01 CONSIDERATION PAID BY THE COMPANY. At or as of the Effective Time,
the assets and the liabilities of the Participating Partnership shall by the
assets and liabilities of Company.
3.02 CONSIDERATION TO PARTICIPATING PARTNERSHIP AS A RESULT OF THE
CONSOLIDATION.
(1) Units. Except as provided in subsection 3.02(ii), as of
the Effective Time, each L.P. Unit of the Participating Partnership in
the Consolidation shall become fifteen and seventy-nine one thousandths
(15.79) Units. No fractional Units shall be issued. Any Limited Partner
of a Participating Partnership who would be entitled to a fractional
Unit will receive the next whole Unit greater than such fraction. A
Unit of the Company shall consist of one share of the Company's no par
value Common Stock, one 90-Day $9.50 Series A Preferred Stock Purchase
Right, one 12-Month $7.50 Stock Purchase Warrant and one 24-Month $9.50
Stock Purchase Warrant, as each is defined in the Prospectus.
(2) Issuance of Notes. As of the Effective Time, each Limited
Partner Unit of the Participating Partnership held of record by a
holder who does not vote in favor of the Consolidation or who does not
otherwise elect to receive Units shall become entitled to receive the
Company's unsecured, convertible 7.15% Note due December 31, 2003, as
further described in the Prospectus (the "Notes") in a principal amount
of seventy-two dollars ($72.00).
3.04 ISSUANCE OF CERTIFICATE FOR UNITS AND NOTES. Upon or as soon as
practicable after the Effective Time, the Company shall distribute in accordance
with this Agreement to the holders of the L.P. Units of each Participating
Partnership the Unit Certificates and 7.15% Notes to which they are entitled
pursuant hereto.
ARTICLE IV
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
4.01 TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time, the
Company shall continue its existence as the Surviving
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Corporation, and by conveyance, transfer and assumption, succeed to and possess
all the rights, privileges and powers of the Participating Partnership, and all
the assets and property of whatever nature and character of the Participating
Partnership shall vest in the Company; thereafter the Company shall be liable
for all of the liabilities and obligations of the Participating Partnership, and
any claim or judgment against the Participating Partnership may be enforced
against the Company. The Company and such Participating Partnership shall
execute such documents as either of them shall deem necessary to effect the
foregoing.
4.02 CONSISTENT INTERPRETATION. The parties agree that the Articles of
the Consolidation Agreement not expressly amended by the foregoing, to the
extent that they may be inconsistent with the foregoing amendments, shall be
interpreted and enforced in a manner that is consistent with Article I, Article
II, Article III, and Article IV as herein amended. The parties agree to execute
such additional instruments and to take such further action as may be judged
necessary or appropriate by any of them in order to implement the transactions
provided for in the Consolidation Agreement as amended.
4.03 FURTHER ASSURANCES. If at any time the Company shall consider or
be advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record its title to any property or
right of the Participating Partnership or otherwise to carry out the provisions
hereof, the proper representatives of the Participating Partnership as of the
Effective Time shall execute and deliver any and all proper deeds, assignments
and assurances, and do all things necessary and proper to vest, perfect or
convey title to such property or right in the Company and otherwise to carry out
the provisions hereof.
4.04 NO IMPLIED CHANGES. Except as expressly provided for above, there
shall be no other changes in the terms and conditions of the Consolidation
Agreement by this Amendment.
4.05 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, which counterpart agreement shall together constitute a single
original agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by an officer duly authorized to do so, all as of the date and year
first above written.
"THE COMPANY" "THE PARTICIPATING PARTNERSHIP"
AQUAPRO CORPORATION,
A TENNESSEE CORPORATION CIRCLE CREEK AQUACULTURE VI, L.P.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------- By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President ---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ "THE PARTICIPATING CORPORATION"
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary CCA VI, INC.
A TENNESSEE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Secretary
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AMENDMENT TO
PLAN AND AGREEMENT OF CONSOLIDATION
This Amendment to the Agreement and Plan of Consolidation dated as of
June 30, 1997 (the "Consolidation Agreement"), is by and between AquaPro
Corporation (the "Company"), Circle Creek Aquaculture VII, L.P. (the
"Participating Partnership"), and CCA VII, Inc. (the "Participating
Corporation") hereinafter sometimes together referred to as the "Parties",
effective June 30, 1997.
WITNESSETH:
WHEREAS, the Company desires to consolidate the business of the
Participating Partnership with its own pursuant to its acquisition of all of the
assets and assumption of all of the liabilities of the Participating Partnership
pursuant to a series of transactions (the "Consolidation") as set forth in the
Prospectus And Consent Solicitation Statement of the Company, dated May 28,
1997, and any and all supplements or amendments thereto (the "Prospectus"); and
WHEREAS, the Company and the Participating Partnership have entered
into the Consolidation Agreement with the Participating Partnership and the
Participating Corporation, which is wholly owned by the Participating
Partnership; and
WHEREAS, the Parties had agreed to the terms and conditions of the
Consolidation transactions provided for in the Consolidation Agreement with
reference to certain laws of the state of Tennessee and federal securities laws
then in effect; and
WHEREAS, the Parties have determined that, at the time of this
Amendment, compliance by the Consolidation with the corporate laws of the state
of Tennessee, the federal securities laws and the applicable securities laws of
certain states would no longer require the intermediate transfer of the
Participating Partnership's assets and liabilities to its Participating
Corporation from which such assets would be purchased and such liabilities
assumed by the Company and have determined that under the applicable federal and
state securities laws and the corporate and partnership laws of the state of
Tennessee, the Consolidation can be effected and the limited partners of the
Participating Partnership can receive the consideration proposed pursuant to a
merger of the Participating Partnership and the parties hereto now desire to
amend the Consolidation Agreement to so provide; and
WHEREAS, the consolidation transactions, including the Consolidation
Agreement, have been approved by the Company's shareholders and the required
number of limited partners of the Participating Partnership; and
WHEREAS, the Consolidation Agreement in Article XII, Section 3 thereof,
expressly provides that the parties may amend this Agreement in their discretion
from time to time, by their mutual agreement, provided that no such amendment
shall alter or change the amount or kind of consideration which the shareholders
or holders of debt obligations of the Participating Corporation are entitled to
receive, or shall alter or change the terms and conditions of the Agreement if
such alteration or change would have a material adverse affect on the
shareholders or the holders of any debt obligations of the Participating
Corporation or the shareholders of the Company; and
WHEREAS, the Parties now desire to amend the Consolidation Agreement in
the manner allowed in Article XII, Section 3 thereof, whereas the transactions
constituting the consolidation, as amended, by the parties pursuant hereto are
expressly authorized by the Tennessee Business Corporation Act (the "Corporation
Act") and the Tennessee Revised Uniform Limited Partnership Act ("RULPA"); and
12
WHEREAS, the charter and bylaws of the Company and the Agreement of
Limited Partnership of the Participating Partnership permit, and resolutions by
the general partners of the Participating Partnership, and the Board of
Directors of the Company authorize, this Amendment to the Consolidation
Agreement (this "Amendment") and the consummation of the Consolidation;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby amend the Consolidation Agreement as follows:
1. PARTICIPATING CORPORATION NO LONGER A PARTY. The Parties agree that
upon the effective date of this Amendment, the Participating Corporation shall
no longer be party to the Consolidation Agreement, and the Participating
Corporation shall have no further responsibility, duties or liabilities
thereunder.
2. AMENDMENT TO ARTICLES I THROUGH IV, INCLUSIVE. Article I, Article
II, Article III and Article IV of the Consolidation Agreement are hereby amended
and restated in their entirety to read as follows.
ARTICLE I
THE MERGER
1.01 THE CONSOLIDATION; SURVIVING CORPORATION. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), the assets and liabilities of the Participating Partnership
shall become the assets and liabilities of the Company by purchase, transfer,
assignment and assumption pursuant to the Corporation Act and the Participating
Partnership shall immediately as of the Effective Time, as defined below, be
merged into the Company and the Limited Partner Interests (the "L.P. Units") of
each Participating Partnership then outstanding shall thereupon become Units and
Notes of the Company, as each is defined herein by reference to the Prospectus,
as a result of the Consolidation as provided in Article III below. The Surviving
Corporation, as defined below, shall continue to be governed by the Corporation
Act.
1.02 EFFECTIVE TIME. In accordance with the Corporation Act, the
Consolidation shall become effective (the "Effective Time") upon the date of the
closing of the Consolidation as described herein effective as of June 30, 1997.
Any filings or recordings required by Tennessee law in connection with the
Consolidation shall also be made and the formal closing of the Consolidation
(the "Closing Date") shall occur contemporaneously with or as soon as practical
after the Effective Time.
1.03 EFFECT OF THE CONSOLIDATION. The Consolidation shall have the
effects set forth in this Agreement and in the Corporation Act.
ARTICLE II
THE SURVIVING CORPORATION
2.01 SURVIVING CORPORATION. The Surviving Corporation shall be the
Company.
2.02 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of the Company as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation and Bylaws of the
Company at the Effective Time.
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2.03 OFFICERS AND DIRECTORS. The officers of the Company immediately
prior to the Effective Time shall continue as officers of the Surviving
Corporation and remain officers until their successors are duly appointed or
their prior resignation, removal or death. The directors of the Company
immediately prior to the Effective Time shall continue as directors of the
Surviving Corporation and shall remain directors until their successors are duly
elected and qualified or their prior resignation, removal or death.
ARTICLE III
CONSIDERATION FOR PARTICIPATING PARTNERSHIP ASSETS
3.01 CONSIDERATION PAID BY THE COMPANY. At or as of the Effective Time,
the assets and the liabilities of the Participating Partnership shall by the
assets and liabilities of Company.
3.02 CONSIDERATION TO PARTICIPATING PARTNERSHIP AS A RESULT OF THE
CONSOLIDATION.
(1) Units. Except as provided in subsection 3.02(ii), as of
the Effective Time, each L.P. Unit of the Participating Partnership in
the Consolidation shall become ten and three hundred twenty-five one
thousandths (10.325) Units. No fractional Units shall be issued. Any
Limited Partner of a Participating Partnership who would be entitled to
a fractional Unit will receive the next whole Unit greater than such
fraction. A Unit of the Company shall consist of one share of the
Company's no par value Common Stock, one 90-Day $9.50 Series A
Preferred Stock Purchase Right, one 12-Month $7.50 Stock Purchase
Warrant and one 24-Month $9.50 Stock Purchase Warrant, as each is
defined in the Prospectus.
(2) Issuance of Notes. As of the Effective Time, each Limited
Partner Unit of the Participating Partnership held of record by a
holder who does not vote in favor of the Consolidation or who does not
otherwise elect to receive Units shall become entitled to receive the
Company's unsecured, convertible 7.15% Note due December 31, 2003, as
further described in the Prospectus (the "Notes") in a principal amount
of forty-seven and eight one hundredths dollars ($47.08).
3.04 ISSUANCE OF CERTIFICATE FOR UNITS AND NOTES. Upon or as soon as
practicable after the Effective Time, the Company shall distribute in accordance
with this Agreement to the holders of the L.P. Units of each Participating
Partnership the Unit Certificates and 7.15% Notes to which they are entitled
pursuant hereto.
ARTICLE IV
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
4.01 TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time, the
Company shall continue its existence as the Surviving
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Corporation, and by conveyance, transfer and assumption, succeed to and possess
all the rights, privileges and powers of the Participating Partnership, and all
the assets and property of whatever nature and character of the Participating
Partnership shall vest in the Company; thereafter the Company shall be liable
for all of the liabilities and obligations of the Participating Partnership, and
any claim or judgment against the Participating Partnership may be enforced
against the Company. The Company and such Participating Partnership shall
execute such documents as either of them shall deem necessary to effect the
foregoing.
4.02 CONSISTENT INTERPRETATION. The parties agree that the Articles of
the Consolidation Agreement not expressly amended by the foregoing, to the
extent that they may be inconsistent with the foregoing amendments, shall be
interpreted and enforced in a manner that is consistent with Article I, Article
II, Article III, and Article IV as herein amended. The parties agree to execute
such additional instruments and to take such further action as may be judged
necessary or appropriate by any of them in order to implement the transactions
provided for in the Consolidation Agreement as amended.
4.03 FURTHER ASSURANCES. If at any time the Company shall consider or
be advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record its title to any property or
right of the Participating Partnership or otherwise to carry out the provisions
hereof, the proper representatives of the Participating Partnership as of the
Effective Time shall execute and deliver any and all proper deeds, assignments
and assurances, and do all things necessary and proper to vest, perfect or
convey title to such property or right in the Company and otherwise to carry out
the provisions hereof.
4.04 NO IMPLIED CHANGES. Except as expressly provided for above, there
shall be no other changes in the terms and conditions of the Consolidation
Agreement by this Amendment.
4.05 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, which counterpart agreement shall together constitute a single
original agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by an officer duly authorized to do so, all as of the date and year
first above written.
"THE COMPANY" "THE PARTICIPATING PARTNERSHIP"
AQUAPRO CORPORATION,
A TENNESSEE CORPORATION CIRCLE CREEK AQUACULTURE VII, L.P.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------- By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President ----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ "THE PARTICIPATING CORPORATION"
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary CCA VII, INC.
A TENNESSEE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Secretary
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AMENDMENT TO
PLAN AND AGREEMENT OF CONSOLIDATION
This Amendment to the Agreement and Plan of Consolidation dated as of
June 30, 1997 (the "Consolidation Agreement"), is by and between AquaPro
Corporation (the "Company"), Circle Creek Aquaculture VIII, L.P. (the
"Participating Partnership"), and CCA VIII, Inc. (the "Participating
Corporation") hereinafter sometimes together referred to as the "Parties",
effective June 30, 1997.
WITNESSETH:
WHEREAS, the Company desires to consolidate the business of the
Participating Partnership with its own pursuant to its acquisition of all of the
assets and assumption of all of the liabilities of the Participating Partnership
pursuant to a series of transactions (the "Consolidation") as set forth in the
Prospectus And Consent Solicitation Statement of the Company, dated May 28,
1997, and any and all supplements or amendments thereto (the "Prospectus"); and
WHEREAS, the Company and the Participating Partnership have entered
into the Consolidation Agreement with the Participating Partnership and the
Participating Corporation, which is wholly owned by the Participating
Partnership; and
WHEREAS, the Parties had agreed to the terms and conditions of the
Consolidation transactions provided for in the Consolidation Agreement with
reference to certain laws of the state of Tennessee and federal securities laws
then in effect; and
WHEREAS, the Parties have determined that, at the time of this
Amendment, compliance by the Consolidation with the corporate laws of the state
of Tennessee, the federal securities laws and the applicable securities laws of
certain states would no longer require the intermediate transfer of the
Participating Partnership's assets and liabilities to its Participating
Corporation from which such assets would be purchased and such liabilities
assumed by the Company and have determined that under the applicable federal and
state securities laws and the corporate and partnership laws of the state of
Tennessee, the Consolidation can be effected and the limited partners of the
Participating Partnership can receive the consideration proposed pursuant to a
merger of the Participating Partnership and the parties hereto now desire to
amend the Consolidation Agreement to so provide; and
WHEREAS, the consolidation transactions, including the Consolidation
Agreement, have been approved by the Company's shareholders and the required
number of limited partners of the Participating Partnership; and
WHEREAS, the Consolidation Agreement in Article XII, Section 3 thereof,
expressly provides that the parties may amend this Agreement in their discretion
from time to time, by their mutual agreement, provided that no such amendment
shall alter or change the amount or kind of consideration which the shareholders
or holders of debt obligations of the Participating Corporation are entitled to
receive, or shall alter or change the terms and conditions of the Agreement if
such alteration or change would have a material adverse affect on the
shareholders or the holders of any debt obligations of the Participating
Corporation or the shareholders of the Company; and
WHEREAS, the Parties now desire to amend the Consolidation Agreement in
the manner allowed in Article XII, Section 3 thereof, whereas the transactions
constituting the consolidation, as amended, by the parties pursuant hereto are
expressly authorized by the Tennessee Business Corporation Act (the "Corporation
Act") and the Tennessee Revised Uniform Limited Partnership Act ("RULPA"); and
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WHEREAS, the charter and bylaws of the Company and the Agreement of
Limited Partnership of the Participating Partnership permit, and resolutions by
the general partners of the Participating Partnership, and the Board of
Directors of the Company authorize, this Amendment to the Consolidation
Agreement (this "Amendment") and the consummation of the Consolidation;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby amend the Consolidation Agreement as follows:
1. PARTICIPATING CORPORATION NO LONGER A PARTY. The Parties agree that
upon the effective date of this Amendment, the Participating Corporation shall
no longer be party to the Consolidation Agreement, and the Participating
Corporation shall have no further responsibility, duties or liabilities
thereunder.
2. AMENDMENT TO ARTICLES I THROUGH IV, INCLUSIVE. Article I, Article
II, Article III and Article IV of the Consolidation Agreement are hereby amended
and restated in their entirety to read as follows.
ARTICLE I
THE MERGER
1.01 THE CONSOLIDATION; SURVIVING CORPORATION. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), the assets and liabilities of the Participating Partnership
shall become the assets and liabilities of the Company by purchase, transfer,
assignment and assumption pursuant to the Corporation Act and the Participating
Partnership shall immediately as of the Effective Time, as defined below, be
merged into the Company and the Limited Partner Interests (the "L.P. Units") of
each Participating Partnership then outstanding shall thereupon become Units and
Notes of the Company, as each is defined herein by reference to the Prospectus,
as a result of the Consolidation as provided in Article III below. The Surviving
Corporation, as defined below, shall continue to be governed by the Corporation
Act.
1.02 EFFECTIVE TIME. In accordance with the Corporation Act, the
Consolidation shall become effective (the "Effective Time") upon the date of the
closing of the Consolidation as described herein effective as of June 30, 1997.
Any filings or recordings required by Tennessee law in connection with the
Consolidation shall also be made and the formal closing of the Consolidation
(the "Closing Date") shall occur contemporaneously with or as soon as practical
after the Effective Time.
1.03 EFFECT OF THE CONSOLIDATION. The Consolidation shall have the
effects set forth in this Agreement and in the Corporation Act.
ARTICLE II
THE SURVIVING CORPORATION
2.01 SURVIVING CORPORATION. The Surviving Corporation shall be the
Company.
2.02 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of the Company as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation and Bylaws of the
Company at the Effective Time.
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2.03 OFFICERS AND DIRECTORS. The officers of the Company immediately
prior to the Effective Time shall continue as officers of the Surviving
Corporation and remain officers until their successors are duly appointed or
their prior resignation, removal or death. The directors of the Company
immediately prior to the Effective Time shall continue as directors of the
Surviving Corporation and shall remain directors until their successors are duly
elected and qualified or their prior resignation, removal or death.
ARTICLE III
CONSIDERATION FOR PARTICIPATING PARTNERSHIP ASSETS
3.01 CONSIDERATION PAID BY THE COMPANY. At or as of the Effective
Time, the assets and the liabilities of the Participating Partnership shall by
the assets and liabilities of Company.
3.02 CONSIDERATION TO PARTICIPATING PARTNERSHIP AS A RESULT OF THE
CONSOLIDATION.
(1) Units. Except as provided in subsection 3.02(ii), as of
the Effective Time, each L.P. Unit of the Participating Partnership in
the Consolidation shall become eleven and nine hundred fourteen one
thousandths (11.914) Units. No fractional Units shall be issued. Any
Limited Partner of a Participating Partnership who would be entitled to
a fractional Unit will receive the next whole Unit greater than such
fraction. A Unit of the Company shall consist of one share of the
Company's no par value Common Stock, one 90-Day $9.50 Series A
Preferred Stock Purchase Right, one 12-Month $7.50 Stock Purchase
Warrant and one 24-Month $9.50 Stock Purchase Warrant, as each is
defined in the Prospectus.
(2) Issuance of Notes. As of the Effective Time, each Limited
Partner Unit of the Participating Partnership held of record by a
holder who does not vote in favor of the Consolidation or who does not
otherwise elect to receive Units shall become entitled to receive the
Company's unsecured, convertible 7.15% Note due December 31, 2003, as
further described in the Prospectus (the "Notes") in a principal amount
of fifty-four and thirty-two one hundredths dollars ($54.32).
3.04 ISSUANCE OF CERTIFICATE FOR UNITS AND NOTES. Upon or as soon as
practicable after the Effective Time, the Company shall distribute in accordance
with this Agreement to the holders of the L.P. Units of each Participating
Partnership the Unit Certificates and 7.15% Notes to which they are entitled
pursuant hereto.
ARTICLE IV
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
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4.01 TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time, the
Company shall continue its existence as the Surviving Corporation, and by
conveyance, transfer and assumption, succeed to and possess all the rights,
privileges and powers of the Participating Partnership, and all the assets and
property of whatever nature and character of the Participating Partnership shall
vest in the Company; thereafter the Company shall be liable for all of the
liabilities and obligations of the Participating Partnership, and any claim or
judgment against the Participating Partnership may be enforced against the
Company. The Company and such Participating Partnership shall execute such
documents as either of them shall deem necessary to effect the foregoing.
4.02 CONSISTENT INTERPRETATION. The parties agree that the Articles of
the Consolidation Agreement not expressly amended by the foregoing, to the
extent that they may be inconsistent with the foregoing amendments, shall be
interpreted and enforced in a manner that is consistent with Article I, Article
II, Article III, and Article IV as herein amended. The parties agree to execute
such additional instruments and to take such further action as may be judged
necessary or appropriate by any of them in order to implement the transactions
provided for in the Consolidation Agreement as amended.
4.03 FURTHER ASSURANCES. If at any time the Company shall consider or
be advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record its title to any property or
right of the Participating Partnership or otherwise to carry out the provisions
hereof, the proper representatives of the Participating Partnership as of the
Effective Time shall execute and deliver any and all proper deeds, assignments
and assurances, and do all things necessary and proper to vest, perfect or
convey title to such property or right in the Company and otherwise to carry out
the provisions hereof.
4.04 NO IMPLIED CHANGES. Except as expressly provided for above,
there shall be no other changes in the terms and conditions of the Consolidation
Agreement by this Amendment.
4.05 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, which counterpart agreement shall together constitute a single
original agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by an officer duly authorized to do so, all as of the date and year
first above written.
"THE COMPANY" "THE PARTICIPATING PARTNERSHIP"
AQUAPRO CORPORATION, CIRCLE CREEK AQUACULTURE VIII, L.P.
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A TENNESSEE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
General Partner
"THE PARTICIPATING CORPORATION"
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary CCA VIII, INC.
A TENNESSEE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Secretary
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