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SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[ ] Preliminary Proxy Statement [_] CONFIDENTIAL, FOR USE OF THE
COMMISSION ONLY (AS PERMITTED BY
RULE 14A-6(E)(2))
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
FRIEDE GOLDMAN INTERNATIONAL INC.
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(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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FRIEDE GOLDMAN INTERNATIONAL
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HOUSTON . NEW ORLEANS . JACKSON . PASCAGOULA
[LOGO OF FRIEDE GOLDMAN INTERNATIONAL INC. APPEARS HERE]
AUGUST 27, 1998
To Our Stockholders:
On behalf of the Board of Directors, I cordially invite all stockholders to
attend the Special Meeting of Stockholders (the "Special Meeting") of Friede
Goldman International Inc. (the "Company") to be held on Friday, September 25,
1998, at 9:00 a.m. at the Capital Club, Capital Towers, 19th Floor, 125 S.
Congress Street, Jackson, Mississippi 39201. Proxy materials, which include a
Notice of the Meeting and proxy card, are enclosed with this letter.
At the Special Meeting, stockholders will be asked to approve a change in
the Company's state of incorporation from Delaware to Mississippi. The Board
of Directors of the Company has determined that the change in the state of
incorporation is in the best interests of the Company. ACCORDINGLY, THE BOARD
OF DIRECTORS RECOMMENDS THAT YOU VOTE "FOR" THE PROPOSAL TO CHANGE THE
COMPANY'S STATE OF INCORPORATION FROM DELAWARE TO MISSISSIPPI.
It is important that your shares be represented at the Special Meeting.
Whether or not you plan to attend the Special Meeting, please complete, date,
sign and return the enclosed proxy card promptly in the enclosed postage paid
envelope. If you attend the Special Meeting, you may revoke your proxy and
vote in person if you wish, even though you may have previously returned your
proxy. If your shares are not registered in your own name and you would like
to attend the meeting, please ask the broker, trust, bank or other nominee
that holds the shares to provide you with evidence of your share ownership.
Sincerely,
/s/ J. L. Holloway
J. L. Holloway,
Chairman of the Board of Directors,
President and Chief Executive
Officer
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FRIEDE GOLDMAN INTERNATIONAL INC.
525 E. CAPITOL STREET, SUITE 402
JACKSON, MISSISSIPPI 39201
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD FRIDAY, SEPTEMBER 25, 1998
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TO THE STOCKHOLDERS:
The Special Meeting of Stockholders of Friede Goldman International Inc.
(the "Company"), will be held at the Capital Club, Capital Towers, 19th Floor,
125 S. Congress Street, Jackson, Mississippi 39201 at 9:00 a.m. on Friday,
September 25, 1998, for the following purposes:
1. To consider and vote upon a proposal to approve an Agreement and Plan
of Merger between the Company and Friede Goldman Mississippi, Inc., a
Mississippi corporation and a wholly owned subsidiary of the Company, the
purpose of which is to change the Company's state of incorporation from
Delaware to Mississippi; and
2. Any and all matters incident to the foregoing, and such other business
as may legally come before the meeting and any adjournments or
postponements thereof.
The close of business on Monday, August 24, 1998 has been fixed by the Board
of Directors of the Company as the record date for the determination of
stockholders entitled to notice of and to vote at the Special Meeting. We urge
you to sign and date the enclosed proxy and return it promptly by mail in the
enclosed envelope, whether or not you plan to attend the meeting in person. No
postage is required if mailed in the United States. If you do attend the
meeting in person, you may withdraw your proxy and vote personally on all
matters brought before the meeting.
By Order of the Board of Directors,
/s/ James A. Lowe, III
James A. Lowe, III
General Counsel and Secretary
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FRIEDE GOLDMAN INTERNATIONAL INC.
525 E. CAPITOL STREET, SUITE 402
JACKSON, MISSISSIPPI 39201
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PROXY STATEMENT
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SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD FRIDAY, SEPTEMBER 25, 1998
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This statement is furnished in connection with the solicitation of proxies
by the Board of Directors of Friede Goldman International Inc., a Delaware
corporation (the "Company"), for use at the Company's Special Meeting of
Stockholders or any postponement or adjournment thereof (the "Special
Meeting") to be held at the Capital Club, Capital Towers, 19th Floor, 125 S.
Congress Street, Jackson, Mississippi 39201 at 9:00 a.m. on Friday, September
25, 1998 for those purposes set forth in the notice attached hereto. This
Proxy Statement and the accompanying proxy card are being mailed to
stockholders on or about August 28, 1998.
VOTING AND VOTE REQUIRED
The presence of the holders of a majority of the issued and outstanding
shares of common stock, par value $.01 per share ("Common Stock") entitled to
vote at the Special Meeting, either in person or represented by properly
executed proxies, is necessary to constitute a quorum for the transaction of
business at the Special Meeting. If there are not sufficient shares
represented in person or by proxy at the Special Meeting to constitute a
quorum, the Special Meeting may be postponed or adjourned in order to permit
further solicitation of proxies by the Company. Abstentions are counted as
"shares present" at the meeting for purposes of determining the presence of a
quorum while broker non-votes (which result when a broker holding shares for a
beneficial owner has not received timely voting instructions on certain
matters from such beneficial owner) are not considered "shares present" with
respect to any matter. A proxy will be voted in the manner specified on the
proxy, or if no manner is specified, it will be voted in favor of the proposal
set forth in the notice attached hereto.
Each share of Common Stock entitles the holder to one vote on each matter
presented at the Special Meeting. The approval of the proposal to approve an
Agreement and Plan of Merger between the Company and Friede Goldman
Mississippi, Inc., a Mississippi corporation and a wholly owned subsidiary of
the Company ("FGM"), the purpose of which is to change the Company's state of
incorporation from Delaware to Mississippi (the "Reincorporation Proposal"),
will require the affirmative vote of holders of a majority of the shares
present in person or represented by duly executed proxy at the Special Meeting
and entitled to vote on the subject matter. In determining the number of votes
cast, shares abstaining from voting or not voted will not be counted as votes
cast.
RECORD DATE AND SHARES OF COMMON STOCK OUTSTANDING
The Board of Directors has fixed the close of business on Monday, August 24,
1998 as the record date for the determination of stockholders entitled to
notice of and to vote at the Special Meeting. At the close of business on the
record date, the Company had outstanding and entitled to vote 24,492,797
shares of its Common Stock. There are no other classes of voting securities of
the Company outstanding.
REVOCATION OF PROXY
Stockholders submitting proxies may revoke them at any time before they are
voted on by (i)notifying Mr. James A. Lowe, III, Secretary of the Company, in
writing of such revocation, (ii) by execution of a subsequent proxy sent to
Mr. Lowe, or (iii) by attending the Special Meeting in person and giving
notice of revocation. Notices to Mr. Lowe referenced in (i) and (ii) should be
directed to Mr. James A. Lowe, III, Secretary, Friede Goldman International
Inc., 525 E. Capitol Street, Suite 402, Jackson, Mississippi 39201.
<PAGE>
SOLICITATION EXPENSES
The expense of preparing, printing and mailing proxy solicitation materials
will be borne by the Company. In addition to solicitation of proxies by mail,
certain directors, officers, representatives and employees of the Company may
solicit proxies by telephone and personal interview. Such individuals will not
receive additional compensation from the Company for solicitation of proxies,
but may be reimbursed for reasonable out-of-pocket expenses in connection with
such solicitation. Banks, brokers and other custodians, nominees and
fiduciaries also will be reimbursed by the Company for their reasonable
expenses for sending proxy solicitation materials to the beneficial owners of
Common Stock.
PROPOSAL TO CHANGE THE COMPANY'S
STATE OF INCORPORATION FROM DELAWARE TO MISSISSIPPI
INTRODUCTION
At the Special Meeting, the stockholders of the Company will be asked to
consider and vote upon the Reincorporation Proposal to change the Company's
state of incorporation from Delaware to Mississippi pursuant to the Agreement
and Plan of Merger (as defined below), a form of which is attached hereto as
Appendix A. The Company's Board of Directors has unanimously approved the
Reincorporation Proposal and, for the reasons set forth below, believes that
approval of the Reincorporation Proposal is in the best interests of the
Company and its stockholders. Stockholder approval of the Reincorporation
Proposal will constitute approval of the Merger Agreement and all related
transactions, which will effect the change in the legal domicile of the
Company.
REASONS FOR REINCORPORATION IN MISSISSIPPI
The reincoporation will conform the Company's legal residence to its
principle place of business and further the Company's identification with the
State of Mississippi. The Company is headquartered in Jackson, Mississippi and
its principal operating facilities have been located in Pascagoula on the
Mississippi Gulf Coast for more than 14 years. Approximately two-thirds
(66 2/3%) of the Company's employees are also located within the State of
Mississippi. The Company has no business operations or employees in the State
of Delaware. In addition, a company's state of incorporation may become a
litigation forum from time to time. Litigation at a distance from the
Company's principal office could result in significant inconveniences and
added expense to the Company.
The Company also believes that the reincorporation may enable the Company to
have a more significant voice in the legislative process with respect to
corporate, environmental and other laws directly affecting it. This
opportunity can be important, as corporations can be significantly affected by
changes in the legal and financial environment in which they operate, and by
legislative and other governmental actions that may be taken in response to
such changes.
The Company believes that the Mississippi Business Corporation Act (the
"MBCA") is similar to the Delaware General Corporate Law (the "DGCL") in many
material respects. In some instances, the shareholders may even have greater
rights, and hence protection, under the laws of Mississippi than the laws of
Delaware. Accordingly, the Company believes that giving up its Delaware
domicile will not have material effect on the rights of, and protections
afforded, its stockholders. See "Comparison of Stockholders' Rights Under
Mississippi and Delaware Law."
THE MERGER
The proposed reincorporation will be accomplished by merging (the "Merger")
the Company into FGM for the sole purpose of reincorporating the Company in
Mississippi, pursuant to an Agreement and Plan of Merger between the Company
and FGM (the "Merger Agreement"). FGM has no operating history, assets and
liabilities; however, FGM will be the surviving corporation in the Merger and
will succeed to all the businesses, properties, assets and liabilities of the
Company. Upon the effectiveness of the Merger, FGM will change its name to
"Friede Goldman International Inc." (the "New Company").
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Pursuant to the Merger Agreement, upon the effectiveness of the Merger, each
outstanding share of the Company's common stock, par value $.01 per share,
will automatically be converted into one share of common stock of the New
Company. Each outstanding certificate representing shares of the Company's
common stock will continue to represent the same number of shares of common
stock of the New Company. IT WILL NOT BE NECESSARY FOR STOCKHOLDERS OF THE
COMPANY TO EXCHANGE THEIR EXISTING STOCK CERTIFICATES FOR STOCK CERTIFICATES
OF THE NEW COMPANY. The New Company's common stock will continue to be listed
on the Nasdaq National Market ("Nasdaq"), as the Company's common stock is at
present, without any interruption or change in ticker symbol. The delivery of
the certificates representing the Company's common stock will constitute "good
delivery" of shares of common stock of the New Company in transactions
following the Merger.
The Merger will take effect upon the later of the filing of the Certificate
of Merger with the Secretary of State of the State of Delaware and the
Articles of Merger with the Secretary of State of the State of Mississippi. If
the Reincorporation Proposal is approved by the Company's stockholders, such
filings will occur as soon as practicable following the Special Meeting. After
the effectiveness of the Merger, the rights of the Company's stockholders will
be governed by the Mississippi Business Corporation Act (the "MBCA") and
Mississippi law, generally, rather than the Delaware General Corporate Law
(the "DGCL") and Delaware law. In connection with the Merger, the Articles of
Incorporation and Bylaws of FGM, which are substantially identical to the
Company's current Certificate of Incorporation and Bylaws, will become the
Articles of Incorporation and Bylaws of the New Company. See "Comparison of
Stockholders' Rights Under Mississippi and Delaware Law."
IN CONNECTION WITH THE APPROVAL OF THE MERGER, THE STOCKHOLDERS OF THE
COMPANY WILL NOT HAVE DISSENTERS' RIGHTS OF APPRAISAL UNDER SECTION 262 OF THE
DGCL.
MAJORITY VOTE REQUIRED BY STOCKHOLDERS OF THE COMPANY
The affirmative vote of the stockholders of a majority of the outstanding
shares of common stock of the Company present, in person or by proxy, and
entitled to vote at the Special Meeting, is required to approve the
Reincorporation Proposal.
THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY RECOMMENDS A VOTE FOR THE
REINCORPORATION PROPOSAL. THE SHARES OF COMMON STOCK OF THE COMPANY
REPRESENTED BY RETURNED PROXY CARDS WILL BE VOTED FOR SUCH PROPOSAL UNLESS
OTHERWISE SPECIFIED.
NO CHANGE IN OFFICERS OR DIRECTORS OF THE COMPANY
Upon the effectiveness of the Merger, each of the current officers of the
Company will become an officer of the New Company, holding the same position
previously held with the Company, and each of the current directors of the
Company will become a director of the New Company and hold the same committee
membership(s) on the Board of Directors of the New Company previously held on
the Company's Board of Directors.
NO CHANGE IN THE NAME, BUSINESS, PHYSICAL LOCATION OR STOCK PLANS OF THE
COMPANY
The consummation of the Merger will not result in any change in the name,
business, physical location, assets or liabilities of the Company. The
Company's equity incentive plan will be continued by the New Company, and each
option or other right with respect to the Company's common stock issued
pursuant to such plans will automatically be converted into an option or right
with respect to the same number of shares of the New Company's common stock,
on the same terms and subject to the same conditions as set forth in the plan.
Other employee benefit plans and arrangements of the Company will be continued
by the New Company upon the terms and subject to the conditions currently in
effect.
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ABANDONMENT
Notwithstanding a vote in favor of the Reincorporation Proposal by the
Company's stockholders, the Merger Agreement provides that the Merger may be
abandoned at the discretion of Company's Board of Directors at any time prior
to its effectiveness.
TAX CONSEQUENCES (GENERAL)
The reincorporation of the Company pursuant to the Merger Agreement will be
a tax free reorganization under the Internal Revenue Code of 1986, as amended
(the "Code"). Accordingly, no gain or loss will be recognized for federal
income tax purposes by the stockholders of the Company as a result of the
Merger, and the basis and holding period for the common stock of the New
Company received by the stockholders of the Company in the Merger will be the
same as the basis and holding period of the common stock of the Company
exchanged therefor. THE CHANGE IN THE STATE OF INCORPORATION WILL HAVE NO
FEDERAL INCOME TAX EFFECT ON THE COMPANY OR THE NEW CORPORATION. ALTHOUGH NOT
ANTICIPATED, STATE, LOCAL AND FOREIGN INCOME TAX CONSEQUENCES TO STOCKHOLDERS
MAY VARY. STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISOR AS TO THE EFFECT
OF THE CHANGE IN THE STATE OF INCORPORATION UNDER APPLICABLE STATE, LOCAL AND
FOREIGN TAX LAWS.
FRANCHISE TAX CONSEQUENCES
The Company anticipates that the New Company's franchise tax payments as a
Mississippi corporation may be marginally higher than its franchise tax
payments have been as a Delaware corporation. However, the Company does not
believe that the reincorporation will materially effect ongoing franchise tax
obligations. For the year ended December 31, 1997, the Company paid franchise
tax in the State of Delaware of $150,000. Had the Company been incorporated in
the State of Mississippi for such period, the Company estimates that its
franchise tax obligations would have been $159,512. The Delaware franchise tax
is based on the number of authorized shares of common stock of a corporation,
with an annual maximum amount of $150,000. The Mississippi franchise tax is
based on a corporation's total equity on its balance sheet and is not capped.
SECURITIES ACT CONSEQUENCES
Pursuant to Rule 145(a)(2) under the Securities Act of 1933, as amended (the
"Securities Act"), a merger which has the sole purpose of changing an issuer's
domicile within the Untied States does not involve a sale of securities for
the purposes of the Securities Act. Accordingly, separate registration of the
shares of common stock of the New Company received by the stockholders of the
Company in the Merger will not be required. Stockholders of the Company whose
common stock was freely tradable prior to the Merger will hold freely tradable
shares of common stock of the New Company subsequent to the Merger, and
stockholders of the Company who held restricted securities of the Company
prior to the Merger will hold securities of the New Company subject to those
same restrictions subsequent to the Merger. After the Merger, the New Company
will be a public company with its common stock traded on Nasdaq. The New
Company will continue to file periodic reports under the Securities Exchange
Act of 1934, as amended, as the Company has done.
POSSIBLE DISADVANTAGES OF CHANGE IN STATE OF INCORPORATION
Despite the belief by the Company's Board of Directors that the
Reincorporation Proposal is in the best interest of the Company, stockholders
should be aware that Mississippi law has not received the same degree of
scrutiny and interpretation as has Delaware law. The Delaware courts have
developed considerable expertise in dealing with corporate issues, and a
substantial body of case law has developed construing Delaware law and
establishing public policies with respect to Delaware corporations. The DGCL
and the Delaware court decisions construing it are widely regarded as the most
extensive and well-defined body of corporate law in the United States. There
is substantially less case law in Mississippi interpreting the MBCA, and there
can be no assurance that certain provisions of Mississippi law would be upheld
should they be challenged. For a detailed summary of material differences
between Mississippi and Delaware corporate law, see "Comparison of
Stockholders' Rights under Mississippi and Delaware Law."
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COMPARISON OF STOCKHOLDERS'
RIGHTS UNDER MISSISSIPPI AND DELAWARE LAW
INTRODUCTION
Upon the effectiveness of the Merger, the holders of common stock of the
Company will become holders of common stock of the New Company. As a result,
their rights as stockholders of the New Company will be governed by the MBCA
and Mississippi law generally. The following is a summary comparison of the
material differences between the current rights of the stockholders of the
Company under Delaware law and their rights as shareholders of the New Company
under Mississippi law, including certain material differences between certain
provisions of the DGCL and the MBCA, the Company's charter and the New
Company's charter and the Company's bylaws and the New Company's bylaws. This
summary is qualified in its entirety by reference to the full text of such
laws and documents and does not purport to be a complete description of the
differences between the corporate laws of Mississippi and Delaware, the
Company's charter and the New Company's charter and the Company's bylaws and
the New Company's bylaws.
MERGERS AND OTHER FUNDAMENTAL TRANSACTIONS
Both Mississippi and Delaware law generally require that a merger,
consolidation, sale of all or substantially all of the assets or dissolution
of a corporation be approved by the holders of at least a majority of the
outstanding shares entitled to vote, unless a corporation's charter provides
otherwise. The Company's charter does not, and the New Company's charter will
not, contain such a provision.
STATUTORY ANTI-TAKEOVER PROVISIONS
The Mississippi Shareholder Protection Act (the "Protection Act") requires
that a business combination with an interested shareholder be approved by the
affirmative vote of at least (a) 80% of the votes entitled to be cast by
outstanding shares of voting stock of the corporation and (b) two-thirds (2/3)
of the votes entitled to be cast by holders of voting stock not held by an
interested shareholder who is a party to the business combination. The
provisions of the Protection Act do not apply if the business combination is
approved by at least 80% of the Company's directors or if the aggregate amount
of any offer meets certain fair price criteria.
"Business combination" is defined in the Protection Act generally as (i) any
merger, consolidation, share exchange or similar transaction with any
interested shareholder or other corporation which is an affiliate of an
interested shareholder, (ii) any sale, lease, transfer or other disposition in
a transaction with any interested shareholder of assets having an aggregate
market value of 20% or more of the total market value of the outstanding stock
of the corporation or of its assets; (iii) the issuance or transfer by the
corporation, or any subsidiary, of any securities of the corporation or any
subsidiary which have an aggregate market value of 5% or more of the total
market value of the outstanding stock of the corporation to any interested
shareholder or any affiliate of any interested shareholder; (iv) the adoption
of any plan or proposal for the liquidation, dissolution of or similar
transaction involving the corporation in which anything other than cash will
be received by an interested shareholder; or (v) any reclassification or
recapitalization of securities or any merger, consolidation or share exchange
of the corporation with any of its subsidiaries which increases by 5% or more
the proportionate share of the total number of outstanding shares or class of
equity securities held by any interested shareholder or affiliate thereof.
"Interested shareholder" is defined in the Protection Act generally as any
person or associated group of persons acting in concert (other than the
corporation and/or subsidiaries) that (i) is the beneficial owner of 20% or
more of the voting power of the outstanding voting stock of the corporation,
or (ii) is an affiliate of the corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner of
20% or more of the voting power of the then outstanding voting stock of the
corporation.
The Mississippi Control Share Act (the "Control Act"), subject to certain
exceptions, eliminates the voting power of "Control Shares" held by a
shareholder who has acquired 20% or more of the outstanding shares of a
company unless the other shareholders pass a resolution restoring the share's
voting power. "Control Shares"
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are defined as issued and outstanding shares over which an acquiring person
may exercise direct or indirect voting power, and which would, in the absence
of the Control Act, represent 20% or more of the voting power of the capital
stock. The Control Act would not apply to shares of a company acquired before
such company became subject thereto.
Section 203 of the DGCL generally prohibits a publicly-held Delaware
corporation from engaging in a business combination with an interested
stockholder for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless (i) prior to the
date of such business combination, the board of directors of a corporation
approved the transaction or business combination which resulted in the
stockholder becoming an interested stockholder, (ii) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock of a corporation outstanding at the time the transaction
commenced, or (iii) on or after such date the business combination is approved
by the board of directors and by the affirmative vote of at least 66 2/3% of
the outstanding voting stock which is not owned by the interested stockholder.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the stockholder. An "interested
stockholder" is a person who, together with affiliates and associates, owns
(or if such stockholder is an affiliate or associate, within three years, did
own) 15% or more of a corporation's voting stock.
MERGERS WITHOUT STOCKHOLDER APPROVAL
Under Section 11.03 of the MBCA, unless a corporation's charter provides
otherwise (the New Company's charter will not), action by the shareholders of
a corporation on a plan of merger will not be required if: (i) the articles of
incorporation of the surviving corporation do not differ from the articles
before the merger, (ii) each shareholder of a corporation prior to the merger
will hold the same number of shares, with identical designations, preferences,
limitations and relative rights, immediately after the merger as such
stockholder held prior to the merger, (iii) the voting power of the voting
shares outstanding immediately after the merger, plus the voting power of the
voting shares issuable as a result of the merger, will not exceed by more than
20% the voting power of the voting shares outstanding immediately prior to the
merger, (iv) the number of participating shares outstanding immediately after
the merger will not exceed by more than 20% the total number of participating
shares outstanding immediately prior to the merger. Additionally, no vote of
shareholders is required for a merger of a Mississippi corporation with a
corporation in which it holds at least 90% of the outstanding shares of each
class and series of capital stock of such corporation.
Under Delaware law, unless a corporation otherwise provides (the Company's
charter does not), a corporation may consummate a merger in which such
corporation is the surviving entity without stockholder approval (and
stockholders do not have the right to dissent from the merger and exercise
appraisal rights) if (i)the merger does not result in an amendment to such
corporation's charter, (ii) each share of stock of such corporation
outstanding immediately prior to the merger is to be an identical outstanding
or treasury share of such corporation after the merger, (iii) the shares of
common stock of the surviving corporation to be issued or delivered under the
plan of merger plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued under such plan of merger do
not exceed 20% of the shares of common stock of such corporation outstanding
immediately prior to the merger. Additionally, when certain conditions are
met, no vote of stockholders is required for the merger of a Delaware
corporation with a corporation in which it holds at least 90% of the
outstanding shares of each class of such corporation.
APPRAISAL RIGHTS
Section 13.02 of the MBCA provides appraisal rights to shareholders in any
of the following corporate actions: (1) a merger if shareholder approval is
required or if the corporation is a subsidiary that merges with its parent;
(2) a plan of share exchange if the corporation is being acquired and the
shareholder is entitled to vote; (3) a sale or exchange of all or
substantially all of the property of the corporation that is not in the usual
and regular course of business, but not including a court ordered sale or sale
pursuant to a plan where the shareholders will receive the proceeds within one
year after the date of sale; (4) certain amendments to the
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articles of incorporation that materially and adversely affects dissenting
shareholder's rights in certain ways; and (5) any corporate action taken
pursuant to a shareholder vote to the extent the charter, bylaws or a board
resolution provides that voting or nonvoting shareholders are entitled to
dissent and obtain payment for their shares.
Section 262 of the DGCL provides for appraisal rights only in the case of a
statutory merger or consolidation of the corporation where the petitioning
stockholder does not consent to the transaction. No appraisal rights are
available where the corporation is to be the surviving corporation and a vote
of its stockholders is not required under Section 251(g) of the DGCL. There
are also no appraisal rights for shares of stock listed on a national exchange
or held of record by more than 2,000 holders, unless such stockholders would
be required to accept anything other than (i) shares of stock of the surviving
corporation, (ii) shares of another corporation listed on a national exchange
or held of record by more than 2,000 holders, (iii) cash in lieu of fractional
shares or (iv) any combination thereof. Under Delaware law, unless otherwise
provided by a corporation's charter (the Company's charter contains no such
provision), stockholders are not entitled to appraisal rights upon a sale of
all or substantially all of the assets of a corporation or upon an adverse
charter amendment as they are under the MBCA.
AMENDMENTS TO CHARTERS
Subject to certain exceptions, Sections 10.02 and 10.03 of the MBCA provide
that an amendment to a corporation's charter must be approved by the board of
directors and by the affirmative vote of holders of at least a majority of the
outstanding shares entitled to vote, unless the corporation's charter provides
otherwise. The New Company's charter will provide that the provisions of such
charter with respect to business combinations with related persons may not be
amended or repealed without the affirmative vote of at least 80% of the voting
stock and the affirmative vote of a majority of the voting stock not
beneficially owned by a related person.
Section 242 of the DGCL provides that an amendment to a corporation's
charter must be approved by the board of directors and by the affirmative vote
of the holders of at least a majority of the outstanding stock entitled to
vote. The Company's charter provides that the provisions of such charter with
respect to business combinations with related persons may not be amended or
repealed without the affirmative vote of at least 80% of the voting stock.
CUMULATIVE VOTING
The Company's charter does not provide for, and neither will the New
Company's charter provide for, cumulative voting in the election of directors.
PREEMPTIVE RIGHTS
Neither the DGCL nor the MBCA affirmatively grants stockholders preemptive
rights, and the Company's charter does not, and the New Company's charter will
not, grant stockholders preemptive rights.
STOCKHOLDER ACTION BY WRITTEN CONSENT
Section 7.03 of the MBCA provides that shareholders may act without a
meeting only by the unanimous consent of all stockholders. Section 228 of the
DGCL provides that stockholders may act without a meeting by consent of the
holders of the outstanding stock representing the number of shares necessary
to take such action at a meeting at which all shares entitled to vote were
present and voted, unless the corporation's charter provides otherwise. The
Company's charter provides that shareholders may not act by written consent.
STOCKHOLDER PROPOSALS
The Bylaws of the New Company will require that proposals from shareholders
submitted for consideration at an annual meeting of shareholders must be
received not less than 120 nor more than 150 days prior to the
7
<PAGE>
anniversary of the date the Proxy Statement relating to the annual meeting for
the prior year was mailed to shareholders, unless the date of the upcoming
annual meeting has been changed by more than 30 days from the date of the
prior year's meeting, in which case proposals must be received at least 60
days prior to the distribution by the Company of proxies relating to such
upcoming annual meeting. In this way, the deadline for submission of proposals
for consideration at an annual meeting of stockholders (outside the process
set forth in Rule 14a-8 under the Securities Exchange Act of 1934, as amended
("Rule 14a-8 ")) will correspond to the deadline for the submission of
proposals for inclusion in the Proxy Statement relating to an annual meeting
pursuant to Rule 14a-8. See "Deadline for Submission of Stockholder
Proposals."
The Bylaws of the Company require that proposals from stockholders submitted
for consideration at an annual meeting of stockholders must be received not
less than 60 nor more than 90 days prior to the anniversary of the annual
meeting for the prior year, unless the date of the upcoming annual meeting has
been changed by more than 30 days from the date of the prior year's meeting,
in which case proposals must be received at least 45 days prior to the
distribution by the Company of proxies relating to such upcoming annual
meeting.
VACANCIES; NEWLY CREATED DIRECTORSHIPS
The New Company's charter will provide that vacancies and newly created
directorships resulting from any increase in the number of directors may be
filled by a majority vote of the remaining directors then in office. Any
director elected or appointed to fill a vacancy shall hold office for the
remaining term to which the director was elected or appointed.
Section 223 of the DGCL and the Company's charter also provide that
vacancies and newly created directorships resulting from any increase in the
number of directors may be filled by a majority vote of the remaining
directors then in office. Any director elected or appointed to fill a vacancy
will hold office for the remaining term of the class to which the director was
elected or appointed.
NUMBER AND CLASSIFICATION OF BOARD OF DIRECTORS
The New Company's charter and Bylaws will provide that the number of
directors on the Board of Directors of the New Company will be not less than
three nor more than 15 as fixed by resolution of the board of directors from
time to time. As required under Section 8.03(b) of the MBCA, the New Company's
charter will limit the number of directors by which its Board of Directors may
increase or decrease the size of the Board to 30% of the number of directors
last approved by shareholders. The Board of Directors of the New Company will
not be divided into classes, and the entire Board will be elected each year.
The Company's charter also provides that the number of directors on the
Board of Directors of the Company will be not less than three nor more than 15
as fixed by resolution of the board of directors from time to time. The
Company's charter and the DGCL do not limit the number of directors by which
the directors may increase or decrease the size of the Board of Directors. The
Company's directors are divided into three classes of directors as nearly
equal in number as possible serving staggered three-year terms such that
approximately one-third of the Board of Directors of the Company is elected
each year.
REMOVAL OF DIRECTORS
Under Section 8.08 of the MBCA, one or more directors may be removed, with
or without cause, at any meeting of shareholders expressly called for that
purpose by the vote of not less than a majority of the shares entitled to vote
in the election of such directors, unless the corporation's charter provides
otherwise. The New Company's charter and Bylaws will provide that a director
may only be removed for cause by an affirmative vote of a majority of the
holders of outstanding capital stock of the Company entitled to vote in the
election of such directors.
Under Section 141 of the DGCL, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares entitled to vote at an election of directors, unless the corporation's
charter provides otherwise. The Company's charter provides that a director may
only be removed
8
<PAGE>
for cause by an affirmative vote of a majority of the holders of outstanding
capital stock of the Company entitled to vote in the election of directors.
AMENDMENT OF BYLAWS
The New Company's charter will provide that the Bylaws may be altered,
amended or repealed (i) by the Board of Directors or (ii) by the affirmative
vote of 80% of the total voting power of all shares of capital stock of the
Company issued and entitled to vote in an election of directors, provided that
notice of such alteration, amendment or repeal is contained in the notice of
such meeting.
The Company's charter also provides that the Bylaws may be altered, amended
or repealed (i) by the Board of Directors or (ii) by the affirmative vote of
80% of the total voting power of all shares of capital stock of the Company
issued and entitled to vote in an election of directors, provided that notice
of such alteration, amendment or repeal is contained in the notice of such
meeting.
MARKET PRICE AND DIVIDEND DATA; STOCK EXCHANGE LISTING
The Company's common stock was first listed for quotation on the Nasdaq
National Market ("Nasdaq") following its initial public offering which closed
on July 22, 1997. The following table sets forth, for the calender quarters
indicated, the high and low sales price per share for the Company's common
stock:
<TABLE>
<CAPTION>
COMPANY
COMMON STOCK(1)
---------------
CALENDER QUARTER HIGH LOW
---------------- ---------------
<S> <C> <C>
1997
Third Quarter (beginning July 22, 1997)................... $ 30.75 $ 9.75
Fourth Quarter............................................ $ 48.00 $ 25.00
1998
First Quarter............................................. $ 35.50 $ 19.50
Second Quarter............................................ $ 44.00 $ 26.00
Third Quarter (through August 21, 1998)................... $ 29.69 $ 12.50
</TABLE>
- --------
(1) Gives effect to a two-for-one stock split of the Company's common stock
effective October 10, 1997.
The Company has not historically paid cash dividends on its common stock,
and it is not anticipated that the New Company will pay cash dividends on its
common stock for the foreseeable future. The New Company anticipates that it
will retain all available earnings generated by the New Company's operations
for the development and growth of its business. Any future determination as to
the payment of dividends will be made at the discretion of the Board of
Directors of the New Company and will depend on the New Company's operating
results, financial condition, capital requirements, general business condition
and other factors deemed relevant.
9
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table, together with the accompanying footnotes, sets forth
information, as of August 21, 1998, regarding share ownership of all persons
known by the Company to own 5% or more of the outstanding shares of Common
Stock, and all executive officers and directors of the Company. Upon
consummation of the Merger, it is expected that the principal stockholders of
the New Company and the number of shares of common stock held thereby will be
identical to those set forth below:
<TABLE>
<CAPTION>
SHARES OF
COMMON STOCK
BENEFICIALLY PERCENT
OWNED(1)(2) OF OWNERSHIP
------------ ------------
<S> <C> <C>
J. L. Holloway(3)................................... 9,880,002 40.34%
Carl M. Crawford.................................... 1,421,870 5.81%
John F. Alford...................................... 95,050 *
Ronald W. Schnoor................................... 585,262 2.39%
James A. Lowe, III.................................. 90,994 *
Jobie T. Melton, Jr................................. 31,000 *
Alan A. Baker....................................... 1,000 *
John G. Corlew...................................... 1,000 *
T. Jay Collins...................................... 5,000 *
Jerome L. Goldman................................... 32,002 *
Raymond E. Mabus, Jr................................ 2,000 *
Howell W. Todd...................................... 4,000 *
All executive officers and directors as a group (12
persons)........................................... 12,149,180 49.60%
</TABLE>
- --------
*Less than one percent.
(1) Gives effect to a two-for-one stock split of the Company's common stock
effective October 10, 1997.
(2) Includes shares of the Company's common stock (and upon consummation of
the Merger, the New Company's common stock) issuable pursuant to stock
options exercisable within 60 days of the date of this Proxy Statement.
(3) Includes 3,841,000 shares of the Company's common stock owned by a limited
partnership of which Mr. Holloway is a general partner.
10
<PAGE>
ACCOUNTANTS
Representatives of Arthur Andersen LLP, the independent certified public
accountants for the Company (and upon consummation of the Merger, the New
Company) are expected to be present at the Special Meeting, will have an
opportunity to make a statement if they desire to do so and are expected to be
available to respond to appropriate questions.
DEADLINE FOR SUBMISSION OF STOCKHOLDER PROPOSALS
Proposals of shareholders intended to be included in the Proxy Statement
relating to the New Company's 1999 Annual Meeting of Shareholders (the "1999
Annual Meeting") pursuant to Rule 14a-8 must be received by the Secretary of
the New Company no later than December 24, 1998 and must otherwise comply with
the requirements of Rule 14a-8.
Proposals of shareholders submitted for consideration at the New Company's
1999 Annual Meeting (outside of the Rule 14a-8 process) must be delivered to
the Secretary of the Company no later than December 24, 1998 but no earlier
than November 24, 1998. If such timely notice of a shareholders proposal is
not given, the proposal may not be brought before the 1999 Annual Meeting. If
timely notice is given but is not accompanied by a written statement to the
extent required by applicable securities laws, the New Company may exercise
discretionary voting authority over proxies with respect to such proposal if
presented at the 1999 Annual Meeting. See "Comparison of Stockholders' Rights
under Mississippi and Delaware Law--Stockholder Proposals."
OTHER MATTERS
The Board of Directors knows of no matters that are expected to be presented
at the Special Meeting other than those described in this proxy statement.
Should any other matter properly come before the Special Meeting, however, the
persons named in the form of proxy accompanying this proxy statement will vote
all shares represented by proxies in accordance with their best judgment on
such matters.
INCORPORATION BY REFERENCE OF
CERTAIN FINANCIAL INFORMATION
The following portions of the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 are incorporated herein by reference:
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Financial Statements and Supplementary Data." The following
portions of the Company's Quarterly Report on Form 10-Q for the period ended
April 5, 1998 are also incorporated herein by reference: "Part I. Item 1:
Financial Statements" and "Part I. Item 2: Management's Discussion and
Analysis of Financial Condition and Results of Operations." These documents
(other than the exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents) are available
without charge, on request by any person to whom this Proxy is delivered, from
the Company or directly from the Securities and Exchange Commission. A copy of
such documents (excluding exhibits thereto) are available without charge, to
any person, including any beneficial holder of the Company's common stock to
whom this Proxy Statement is delivered, on written or oral request to Friede
Goldman International Inc., 525 East Capitol Street, Suite 402, Jackson,
Mississippi 39201, Attention: Secretary (telephone number: 601-352-1107). Also
see, "Available Information."
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Proxy Statement to the
extent that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Proxy Statement except as so
modified or superseded.
11
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange Act
and the rules and regulations promulgated thereunder and, in accordance
therewith, files reports, proxy statements and other information with the SEC.
All such information may be inspected and copied at the public reference
facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the following Regional Offices
of the SEC: Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and New York Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material may also be
obtained at prescribed rates from the Public Reference Section of the SEC at
its principal office at 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549. The SEC also maintains a web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the SEC (http://www.sec.gov). The Company's common stock
is traded on the Nasdaq National Market. Reports, proxy statements and other
information concerning the Company can also be inspected at the offices of the
Nasdaq National Market, 1735 K Street NW, Washington, DC 20006.
By the order of the Board of
Directors,
/s/ James A. Lowe, III
--------------------------------
James A. Lowe, III
General Counsel and Secretary
Jackson, Mississippi
August 27, 1998
12
<PAGE>
APPENDIX A
FORM OF AGREEMENT AND PLAN OF MERGER BETWEEN FRIEDE GOLDMAN
INTERNATIONAL INC., A DELAWARE CORPORATION AND FRIEDE GOLDMAN
MISSISSIPPI, INC., A MISSISSIPPI CORPORATION
THIS IS AN AGREEMENT AND PLAN OF MERGER (this "Agreement") by and between
Friede Goldman International Inc., a Delaware corporation ("Friede Goldman"),
and Friede Goldman Mississippi, Inc., a Mississippi corporation ("FGM").
Friede Goldman and FGM are hereinafter collectively referred to as the
"Constituent Corporations."
RECITALS
WHEREAS, Friede Goldman is a corporation organized and existing under the
laws of the State of Delaware, having been incorporated on May 21, 1997, and
having authorized capital stock consisting of (i) 125,000,000 shares of common
stock, par value $.01 per share ("Friede Goldman Common Stock") and (ii)
5,000,000 shares of preferred stock, par value $.01 per share ("Friede Goldman
Preferred Stock"), 24,492,797 of which shares of Friede Goldman Common Stock
are issued and outstanding and none of which shares of Friede Goldman
Preferred Stock are issued and outstanding; and the outstanding shares of
Friede Goldman Common Stock are entitled to vote on the Merger (as described
below); and
WHEREAS, the Board of Directors of Friede Goldman has determined that it is
the best interests of Friede Goldman and its stockholders to change the
corporation's domicile from Delaware to Mississippi; and Friede Goldman has
formed FGM as a wholly-owned subsidiary for the express purpose of effecting
the reincorporation of Friede Goldman in the State of Mississippi; and
WHEREAS, FGM is a corporation organized and existing under the laws of the
State of Mississippi, having been incorporated on , 1998, and having
authorized capital stock consisting of (i) 125,000,000 shares of common stock,
par value $.01 per share (the "FGM Common Stock") and (ii) 5,000,000 shares of
preferred stock, par value $.01 per share (the "FGM Preferred Stock"), 1,000
of which shares of FGM Common Stock are issued and outstanding, all of which
outstanding shares of FGM Common Stock are owned by Friede Goldman, and none
of which shares of FGM Preferred Stock are outstanding; and
WHEREAS, the respective Boards of Directors of the Constituent Corporations
have determined that it is in the best interests of such corporations and the
stockholders of Friede Goldman and the sole shareholder of FGM, respectively,
to merge Friede Goldman with and into FGM, with FGM to be the surviving
corporation (such merger being hereinafter referred to as the "Merger"), and
each of such Boards of Directors have authorized, approved and adopted this
Agreement and has directed that it be submitted to the stockholders of Friede
Goldman and the sole shareholder of FGM, respectively, for approval.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I: THE MERGER
Section 1.1. The Merger and Surviving Corporation. At the Effective Time
of the Merger (as hereinafter defined), Friede Goldman shall be merged with
and into FGM, the separate existence of Friede Goldman shall cease and FGM
(hereinafter sometimes referred to as the "Surviving Corporation") shall be
the surviving corporation of the Merger and shall continue to exist by
virtue of, and shall be governed by, the laws of the State of Mississippi.
The name of the Surviving Corporation shall be "Friede Goldman
International Inc." as provided in the Amendment to the Articles of
Incorporation of the Surviving Corporation set forth in Section 3.1 below.
A-1
<PAGE>
Section 1.2. Effective Time of the Merger. The Merger shall be effective
upon the later of the filing of a Certificate of Merger with the Secretary
of State of the State of Delaware and Articles of Merger with the Secretary
of State of the State of Mississippi (the "Effective Time").
Section 1.3. Effect of Merger. At the Effective Time, Friede Goldman
shall merge with and into FGM, and the separate existence of Friede Goldman
shall cease. Without limiting any provisions of applicable law of the State
of Delaware or the State of Mississippi, at the Effective Time: (i) the
Surviving Corporation shall succeed, without other transfer, to all the
assets, rights, powers and property of the Constituent Corporations, and
title to all real estate and other property owned by each of the
Constituent Corporations shall be vested in the Surviving Corporation
without reversion or impairment; (ii) the Surviving Corporation shall
succeed, without other transfer, to all of the debts, liabilities and
obligations of the Constituent Corporations as if it had incurred them
itself; (iii) any proceeding pending against either of the Constituent
Corporations may be continued as if the Merger did not occur or the
Surviving Corporation may be substituted in the proceeding for Friede
Goldman; (iv) the Surviving Corporation shall be subject to all actions
previously taken by the Boards of Directors of the Constituent
Corporations, and shall assume all obligations of Friede Goldman relating
to the indemnification of its officers and directors; (v) the Surviving
Corporation shall assume, without any further action, all employee benefit
plans of Friede Goldman, including, but not limited to, all stock option,
stock purchase, stock repurchase, deferred compensation, welfare and
savings plans, as well all employment and severance agreements, subject, in
each case, to the terms and conditions of such plans and agreements. and
(vi) the shares of Friede Goldman Common Stock that are to be converted
into shares of common stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Common Stock") shall be so converted.
SECTION II: CONVERSION OF STOCK
Section 2.1. Conversion Shares of Friede Goldman Common Stock. At the
Effective Time, by virtue of the Merger and without any action by the
parties hereto or any other person, (i) each share of Friede Goldman Common
Stock issued and outstanding immediately prior thereto shall be converted
into and exchanged for one fully paid and nonassessable share of Surviving
Corporation Common Stock and (ii) each option or right to purchase a share
of Friede Goldman Common Stock issued and outstanding immediately prior
thereto shall be converted into and exchanged for one option or right, as
the case may be, to purchase a share of Surviving Corporation Common Stock,
upon the same terms and subject to the same conditions.
Section 2.2. Cancellation of FGM Common Stock. At the Effective Time of
the Merger, each share of FGM Common Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any
action by FGM, the holder of such shares or any other person, be canceled
and returned to the status of authorized but unissued shares.
Section 2.3. Exchange of Share Certificates. (a) After the Effective
Time, the holder of an outstanding certificate representing shares of
Friede Goldman Common Stock may, at such stockholder's option, surrender
the same for cancellation to the Surviving Corporation and such holder
shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of Surviving Corporation
Common Stock into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of Friede Goldman Common Stock shall be deemed for all
purposes to represent the number of shares of Surviving Corporation Common
Stock into which such shares of Friede Goldman Common Stock were converted
in the Merger.
(b) The registered owner on the books and records of the Surviving
Corporation of any such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation, have and be entitled
to exercise any voting and other rights with respect to and to receive
dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as
provided above.
A-2
<PAGE>
ARTICLE III: CHARTER DOCUMENTS; DIRECTORS AND OFFICERS
Section 3.1. Articles of Incorporation. The Articles of Incorporation of
FGM shall be the Articles of Incorporation of the Surviving Corporation,
except that Article First thereof shall be amended to read in its entirety
as follows:
FIRST: The name of the Corporation is:
Friede Goldman International Inc.
Section 3.2. Bylaws. The Bylaws of FGM as in effect at the Effective Time
shall continue to be the Bylaws of the Surviving Corporation until amended
as provided in said Bylaws, except that the name of the Surviving
Corporation shall be "Friede Goldman International Inc."
Section 3.3. Directors. The persons who are serving as the directors of
Friede Goldman as of the Effective Time shall be the directors of the
Surviving Corporation until changed in accordance with the Bylaws of the
Surviving Corporation and applicable law. Directors of the Surviving
Corporation shall serve on the committees on which they served as directors
of Friede Goldman. The persons who are serving as the directors of FGM as
of the Effective Time shall hold no such position with the Surviving
Corporation, except insofar as such directors hold such position with
Friede Goldman.
Section 3.4. Officers. The persons who are serving as the officers of
Friede Goldman as of the Effective Time shall be the officers of the
Surviving Corporation until changed in accordance with the Bylaws of the
Surviving Corporation and applicable law. The persons who are serving as
the officers of FGM as of the Effective Time shall hold no such office with
the Surviving Corporation, except insofar as such officers hold such office
with Friede Goldman.
ARTICLE IV: CONDITIONS TO CLOSING
Section 4.1 Conditions to Closing. The respective obligations of the
Constituent Corporation to consummate the Merger are subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) This Agreement and the Merger shall have been authorized and
approved by a majority of the stockholders of Friede Goldman entitled
to vote and present, in person or by proxy, at the Special Meeting of
Stockholders of Friede Goldman to be held expressly for such purpose,
and by Friede Goldman, the sole stockholder of FGM, in accordance with
the relevant provisions of the Delaware General Corporation Law (the
"DGCL"), the Certificate of Incorporation of Friede Goldman, the Bylaws
of Friede Goldman, the Mississippi Business Corporation Act, the
Articles of Incorporation of FGM and the Bylaws of FGM, as applicable.
After the such approval and adoption of this Agreement, and the
satisfaction of the other conditions set forth herein, all required
documents shall be executed, verified, filed, and recorded and all
required acts shall be done under the provisions of the applicable
statutes of the States of Delaware and Mississippi in order to
accomplish the Merger;
(b) As of the Effective Time, no action, suit or proceeding shall
have been instituted or, to the knowledge of the Constituent
Corporations, be pending or threatened before any court or other
governmental body by any public agency or governmental authority
seeking to restrain, enjoin or prohibit the consummation of the
transactions contemplated hereby or to seek damages or other relief in
connection therewith against any officer or director of either of the
Constituent Corporations.
A-3
<PAGE>
ARTICLE V: AMENDMENT AND TERMINATION
Section 5.1. Amendment. This Agreement may be supplemented or amended in
any manner at any time and from time to time prior to the Effective Time by
the mutual consent of Friede Goldman and FGM without any action by the
stockholders of Friede Goldman or the sole shareholder of FGM; provided,
that any amendment, modification or supplement to this Agreement after its
approval by the stockholders of Friede Goldman but prior to the Effective
Time shall require the approval of the stockholders of Friede Goldman
unless the amendment, modification or supplement to this Agreement (i) does
not alter (a) the amount or kind of shares to be received thereunder in
exchange for shares of Friede Goldman Common Stock, or (b) any term of the
Articles of Incorporation of the Surviving Corporation as provided for in
this Agreement, and (ii) does not alter any of the terms and conditions of
this Agreement in a manner that would adversely affect the holders of
Friede Goldman Common Stock.
Section 5.2. Termination. This Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time by action taken by the
Board of Directors of either Constituent Corporation for any reason
whatsoever, notwithstanding the approval of this Agreement and the Merger
by the stockholders of Friede Goldman or the sole shareholder of FGM, or by
both.
ARTICLE VI: FURTHER ASSURANCES
Section 6.1. Further Assurances. If at any time the Surviving Corporation
shall consider or be advised that any further assignments or assurances or
any other things are necessary or desirable to vest in the Surviving
Corporation, in accordance with the terms of this Agreement, the title of
any property or rights of Friede Goldman, or otherwise to carry out this
Agreement or the Merger, the last acting officers and directors of Friede
Goldman or the corresponding officers and directors of the Surviving
Corporation shall and will execute and make all such proper assignments and
assurances and do all things necessary or proper to vest title in such
property or rights in the Surviving Corporation, or otherwise to carry out
this Agreement or the Merger.
ARTICLE VII: GENERAL
Section 7.1. Registered Office. The address of the registered office of
the Surviving Corporation of the Merger in the State of Mississippi shall
be 525 East Capitol Street, Suite 402, Jackson, Mississippi 39201, and
James A. Lowe, III shall be the registered agent of the Surviving
Corporation at such address.
Section 7.2. Governing Law. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the
laws of the State of Mississippi and, so far as applicable, the merger
provisions of the DGCL.
Section 7.3. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement or its terms to produce or
account for more than one of such counterparts.
* * * * *
A-4
<PAGE>
IN WITNESS WHEREOF, the Constituent Corporations have caused this Agreement
to be executed by their respective officers whose signatures are set forth
below, all as of the day and year first above written.
ATTEST: FRIEDE GOLDMAN INTERNATIONAL INC.
a Delaware corporation
By: _________________________ By: ____________________________________
James A. Lowe, III J. L. Holloway
Secretary Chairman of the Board, President and
Chief Executive Officer
ATTEST:
A FRIEDE GOLDMAN MISSISSIPPI, INC.
BY: _________________________ a Mississippi corporation
James A. Lowe, III
Secretary By: ____________________________________
J. L. Holloway
Chairman of the Board, President and
Chief Executive Officer
A-5
<PAGE>
FRIEDE GOLDMAN INTERNATIONAL INC.
SPECIAL MEETING OF STOCKHOLDERS
held September 25, 1998
Solicited by the Board of Directors of Friede Goldman International Inc.
The undersigned hereby appoints J. L. Holloway and James A. Lowe, III, and
each of them individually, as proxies with full power of substitution, to vote
all shares of Common Stock of Friede Goldman International Inc. that the
undersigned is entitled to vote at the Special Meeting of Stockholders thereof
to be held on Friday, September 25, 1998, or at any adjournment or postponement
thereof, as follows:
Any executed proxy which does not designate a vote shall be deemed to grant
authority for any item not designated.
PROPOSAL 1: APPROVAL OF CHANGE OF THE COMPANY'S STATE OF INCORPORATION FROM
DELAWARE TO MISSISSIPPI PURSUANT TO THE AGREEMENT AND PLAN OF
MERGER BETWEEN FRIEDE GOLDMAN INTERNATIONAL INC. AND FRIEDE
GOLDMAN MISSISSIPPI, INC.
[_] FOR [_] AGAINST [_] ABSTAIN
Please check the following box if you plan to attend the Special Meeting of
Stockholders in person. [_]
ALL SHARES WILL BE VOTED AS DIRECTED HEREIN AND, UNLESS OTHERWISE DIRECTED, WILL
BE VOTED "FOR" PROPOSAL 1, AND IN ACCORDANCE WITH THE DISCRETION OF THE PERSON
VOTING THE PROXY WITH RESPECT TO ANY OTHER BUSINESS PROPERLY BROUGHT BEFORE THE
MEETING.
YOU MAY REVOKE THIS PROXY AT ANY TIME PRIOR TO A VOTE THEREON.
Dated: _____________________________, 1998
-----------------------------------------
Signature
Please sign exactly as name appears on this card. Joint
owners should each sign. Executors, administrators,
trustees, etc., should give their full titles.
Please complete, sign and promptly mail this proxy in the enclosed envelope.
