Ex. 2.2
PLAN AND AGREEMENT OF MERGER
REINCORPORATION OF T-3 ENERGY SERVICES, INC.
IN DELAWARE
PLAN AND AGREEMENT OF MERGER, dated as of December 17, 2001 (the
"Agreement"), by and between T-3 Energy Services, Inc., a Texas corporation
formerly known as Industrial Holdings, Inc. ("Oldco"), and T-3 Combination
Corp., a Delaware corporation and wholly- owned subsidiary of Oldco ("Newco" or
the "Surviving Corporation"). Oldco and Newco are hereinafter collectively
referred to as the "Merging Corporations."
WITNESSETH:
WHEREAS, Newco is a corporation duly organized and validly existing
under the laws of the State of Delaware, with its registered office at
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and
with its principal executive offices at 0000 Xxxxxxx, Xxxxxxx, Xxxxx 00000; and
WHEREAS, the authorized capital stock of Newco consists of 10,000
shares of common stock, par value $.10 per share, of which at December 17, 2001,
1,000 shares were issued and outstanding and owned by Oldco; and
WHEREAS, Oldco is a corporation duly organized and validly existing
under the laws of the State of Texas, with its registered office and principal
executive offices at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000; and
WHEREAS, the authorized capital stock of Oldco consists of 100,000,000
shares of common stock, par value $.01 per share, of which at December 17, 2001,
approximately 95,779,949 shares were issued and outstanding and 25,000,000
shares of preferred stock, par value $.01 per share, of which at December 17,
2001, no shares were issued and outstanding; and
WHEREAS, the respective boards of directors of Oldco and Newco deem it
desirable and in the best interests of their respective corporations and their
respective stockholders to merge Oldco into Newco, pursuant to the provisions of
Section 252 of the General Corporation Law of the State of Delaware and Article
5.03 of the Texas Business Corporation Act, as amended, and have proposed,
declared advisable, and approved such merger pursuant to this Agreement, which
Agreement has been duly approved by resolutions of the respective boards of
directors of the Merging Corporations;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and in order to prescribe the terms
and conditions of the merger, the mode of carrying the same into effect, the
manner and basis of converting the shares of common stock of Oldco into shares
of common stock of Newco, and such other details and provisions as are deemed
necessary or proper, the parties hereby agree as follows:
ARTICLE I
MERGER
I.1 Surviving Corporation. Subject to the adoption and approval of this
Agreement by the requisite vote of the stockholders of Oldco and to the other
conditions hereinafter set forth, the Merging Corporations shall be, upon the
effective date of the merger as defined in Section 1.3 hereof, merged into a
single surviving corporation, which shall be Newco, one of the Merging
Corporations, which shall continue its corporate existence and remain a Delaware
corporation governed by and subject to the laws of that State.
I.2 Stockholder Approval. This Agreement shall be submitted for
adoption and approval by the stockholders of Oldco and Newco in accordance with
the applicable laws of the States of Delaware and Texas.
I.3 Effective Time. The merger shall become effective at the date and
time designated in (1) the Certificate of Merger filed with the Secretary of
State of the State of Delaware following its adoption, certification, execution,
and acknowledgment in accordance with Section 103 of the General Corporation Law
of the State of Delaware, and (2) the Articles of Merger filed with the
Secretary of State of the State of Texas following its adoption, execution in
accordance with Article 5.03 of the Texas Business Corporation Act and the
issuance by the Secretary of State of the State of Texas of a Certificate of
Merger. The date upon which the merger shall become effective, as defined by
this Section 1.3, is referred to in this Agreement as the "Effective Time."
ARTICLE II
CONTINUED CORPORATE EXISTENCE OF SURVIVING CORPORATION
II.1 Existence. The identity, existence, purposes, powers, objects,
franchises, rights, and immunities of Newco, the Surviving Corporation, shall
continue unaffected and unimpaired by the merger, and the corporate identity,
existence, purposes, powers, objects, franchises, rights, and immunities of the
Merging Corporations shall be wholly merged into Newco, the Surviving
Corporation, and Newco shall be fully vested therewith. Accordingly, at the
Effective Time, the separate existence of Oldco, except insofar as continued by
statute, shall cease.
ARTICLE III
GOVERNING LAW AND CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
III.1 Delaware Law Governs and Newco's Certificate of Incorporation
Survives. The laws of Delaware shall continue to govern the Surviving
Corporation. From and after the Effective Time, the Certificate of Incorporation
of Newco, the Surviving Corporation, shall be amended and restated in the form
attached hereto as Appendix I (the "Restated Certificate"), until thereafter
amended in the manner provided by the Restated Certificate and applicable law.
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ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
IV.1 Newco's Bylaws Survive. From and after the Effective Time, the
Bylaws of Newco, the Surviving Corporation, shall be amended and restated in the
form attached hereto as Appendix II (the "Restated Bylaws"), until the same
shall be altered, amended, or repealed, or until new Bylaws shall be adopted in
accordance with the Restated Certificate, the Restated Bylaws and applicable
law.
ARTICLE V
DIRECTORS AND OFFICERS OF SURVIVING CORPORATION
V.1 Directors of Surviving Corporation. The directors who shall
constitute the board of directors of the Surviving Corporation from and after
the Effective Time shall be as follows:
CLASS I
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
CLASS II
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
CLASS III
Xxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxx
until their successors are duly elected and qualified in accordance with the
Restated Certificate, the Restated Bylaws and applicable law. If before the
Effective Time, any one or more of such persons dies or refuses or becomes
unable to serve as a director of the Surviving Corporation, then the
remaining named directors shall be the directors of the Surviving Corporation
from and after the Effective Time until their successors are duly elected and
qualified in accordance with the Restated Articles, the Restated Bylaws, and
applicable law.
V.2 Committee of Surviving Corporation. From and after the Effective
Time, the members of the committee of the board of directors of the Surviving
Corporation shall be as follows:
AUDIT COMMITTEE
Xxxxxx X. Xxxxxxx (Chairman)
Xxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxx
COMPENSATION COMMITTEE
Xxx X. Xxxxx (Chairman)
Xxxxxx X. Xxxxxxx
until their respective successors and chosen and qualified in accordance with
the Restated Certificate, the Restated Bylaws and applicable law.
All other committees of the board of directors of the Surviving
Corporation shall be as from time to time established and appointed by the board
of directors of the Surviving Corporation after the Effective Time in accordance
with the Restated Certificate, the Restated Bylaws and applicable law.
V.3 Officers of Surviving Corporation. From and after the Effective
Time, the officers of the Surviving Corporation shall be as follows:
Title Name
----- ----
President and Chief Executive Officer Xxxxxxx X. Xxxxxxxxxx
Chief Financial Officer, Treasurer and Secretary Xxxxxxx X. Xxxx
Assistant Secretary Xxxxx X. Xxxx
until their respective successors are elected and qualified in accordance with
the Restated Certificate, the Restated Bylaws and applicable law.
All other officers of the Surviving Corporation shall be elected by the
board of directors of the Surviving Corporation in accordance with the Restated
Bylaws.
V.4 Vacancies. From or after the Effective Time, if a vacancy shall for
any reason exist in the board of directors or in any of the offices of the
Surviving Corporation, such vacancy shall be filled in the manner provided in
the Restated Certificate, the Restated Bylaws and applicable law.
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ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
VI.1 Capital Stock as in Newco's Certificate of Incorporation. The
authorized number of shares of capital stock of the Surviving Corporation, the
par value, designations, preferences, rights, and limitations thereof, and the
express terms thereof, shall be as set forth in the Restated Certificate.
ARTICLE VII
CONVERSION OF SECURITIES ON MERGER
VII.1 General. The manner and basis of converting the issued and
outstanding shares of the capital stock of Oldco into shares of the capital
stock of Newco shall be as hereinafter set forth in this Article VII.
VII.2 Cancellation of Newco's Capital Stock. At the Effective Time,
each share of Newco common stock, par value $.001 per share, and Newco preferred
stock, par value $.001 per share, then issued and outstanding shall be
automatically canceled and cease to exist.
VII.3 Conversion of Oldco's Common Stock. At the Effective Time, each
share of common stock, par value $.01 per share, of Oldco then issued and
outstanding (excluding any Oldco shares which may then be held in the treasury
of Oldco, all of which shares shall cease to exist), without any action on the
part of the holders thereof, shall automatically become and be converted into
one-tenth of one fully paid and nonassessable share of the issued and
outstanding common stock, par value $.001 per share, of the Surviving
Corporation (the "Exchange Rate").
VII.4 Conversion of Oldco's Options and Warrants. At the Effective
Time, each of the then outstanding options and warrants to purchase Oldco common
stock, without any action on the part of the holders thereof, shall
automatically become and be converted into an option or warrant, as the case may
be, to purchase that number of shares of Newco common stock determined by
multiplying the number of shares of Oldco common stock subject to such Oldco
option or warrant at the Effective Time, times the Exchange Rate for the Oldco
common stock set forth in Section 7.3 hereof, and the exercise price thereof
shall adjust in accordance with the terms and provisions of such option or
warrant.
VII.5 Exchange of the Merging Corporations' Stock Certificates. As
promptly as practicable after the Effective Time, each holder of an outstanding
certificate or certificates theretofore representing shares of common stock of
Oldco may surrender the same to an exchange agent of and designated by the
Surviving Corporation, and such holder shall be entitled upon such surrender to
receive in exchange therefor a certificate or certificates representing the
number of whole shares of common stock of the Surviving Corporation into which
the shares of common stock of Oldco theretofore represented by the certificate
or certificates so surrendered shall have been converted as provided herein.
However, prior to any surrender, each outstanding certificate representing
Oldco's outstanding common stock shall be deemed for all purposes to evidence
ownership of the number of whole shares of common stock of the Surviving
Corporation into which the same shall have been converted. At or before the
Effective Time, each holder of an outstanding certificate or certificates
theretofore representing shares of common stock of Newco shall surrender the
same to an exchange agent of and designated by the Surviving Corporation.
VII.6 Newco Fractional Shares. No certificates for fractional share
interests of Common Stock of Newco will be issued, but, in lieu thereof, Newco
will settle all such fractional share interests in cash on the basis of ten
times the average of the closing price on the Nasdaq National Market for Oldco
common stock during the ten trading days immediately before the Effective Time
multiplied by such fractional share.
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VII.7 Oldco's Transfer Books Closed. At the Effective Time, the stock
transfer books of Oldco shall be deemed closed, and no transfer of capital stock
of Oldco shall thereafter be made or consummated. If, after the Effective Time,
certificates for shares of common stock of Oldco are presented to Newco for
registration or transfer, they shall be canceled and exchanged for certificates
representing the appropriate number of shares of Newco common stock.
ARTICLE VIII
ASSETS AND LIABILITIES
VIII.1 Assets and Liabilities of Merging Corporations Become Those of
Surviving Corporation. At the Effective Time, all rights, privileges, powers,
immunities, and franchises of each of the Merging Corporations, both of a public
and private nature, and all property, real, personal, and mixed, and all debts
due on whatever account, as well as stock subscriptions and all other choses or
things in action, and all and every other interest of or belonging to or due to
either of the Merging Corporations, shall be taken by and deemed to be
transferred to and shall be vested in the Surviving Corporation without further
act or deed, and all such rights, privileges, powers, immunities, franchises,
property, debts, choses or things in action, and all and every other interest of
the Merging Corporations shall be thereafter as effectually the property of the
Surviving Corporation as they were of the respective Merging Corporations, and
the title to any real or other property, or any interest therein, whether vested
by deed or otherwise, in either of the Merging Corporations, shall not revert or
be in any way impaired by reason of the merger; provided, however, that all
rights of creditors and all liens upon any properties OF EACH of the Merging
Corporations shall be preserved unimpaired, and all debts, liabilities,
restrictions obligations, and duties of the respective Merging Corporations,
including without limitation all obligations, liabilities, and duties as lessee
under any existing lease, shall thenceforth attach to the Surviving Corporation
and may be enforced against and by it to the same extent as if said debts,
liabilities, restrictions, obligations, and duties had been incurred or
contracted by it. Any action or proceeding pending by or against either of the
Merging Corporations may be prosecuted to judgment as if the merger had not
taken place, or the Surviving Corporation may be substituted in place of either
of the Merging Corporations.
VIII.2 Accounting Treatment. The assets and liabilities of the Merging
Corporations shall be taken up on the books of the Surviving Corporation in
accordance with generally accepted accounting principles, and the capital
surplus and retained earnings accounts of the Surviving Corporation shall be
determined, in accordance with generally accepted accounting principles, by the
board of directors of the Surviving Corporation. Nothing herein shall prevent
the board of directors of the Surviving Corporation from making any future
changes in its accounts in accordance with law.
VIII.3 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after action thereon by the
stockholders of Oldco, by mutual consent of the Merging Corporations, expressed
by action of their respective Boards of Directors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed in their respective corporate names by their respective duly authorized
officer, all as of the day and year first above written.
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T-3 COMBINATION CORP.
(a Delaware corporation)
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: President
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T-3 ENERGY SERVICES, INC.
(a Texas corporation)
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: President
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