SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant /X/
Filed by a Party other than the Registrant /_/
Check the appropriate box:
/_/ Preliminary Proxy Statement
/X/ Definitive Proxy Statement
/_/ Definitive Additional Materials
/_/ Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
_________________________AMERICAN METALS SERVICE INC.___________________________
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement)
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:*
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(4) Proposed maximum aggregate value of transaction:
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/_/ 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: _________________________________________________
2) Form, Schedule or Registration No. ______________________________________
3) Filing party: ___________________________________________________________
4) Date filed: _____________________________________________________________
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*Set forth the amount on which the filing fee is calculated and state how it was
determined.
<PAGE>
AMERICAN METALS SERVICE, INC.
376 MAIN STREET
PO BOX 74
BEDMINSTER, NEW JERSEY 07921
(908) 234-0078
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD JUNE 29, 1999
TO THE SHAREHOLDERS:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of American
Metals Service, Inc., a Florida corporation (the "Company"), will be held on
Tuesday, June 29, 1999, at 8:30am, local time at the Company's office located at
376 Main Street, Bedminster, New Jersey 07921, for the purpose of considering
and acting upon the following matters:
(1) To elect four directors to serve until the next Annual Meeting of
Shareholders or until their respective successors are duly elected and
qualified;
(2) To approve an amendment to the Company's Articles of Incorporation to
increase the number of authorized shares of common stock from
6,000,000 to 12,000,000;
(3) To approve a proposal to change the state of incorporation of the
Company from Florida to Delaware;
(4) To approve a proposal to change the Company's name to Golf Rounds.com,
Inc.; and
(5) To transact such other business as may properly come before the Annual
Meeting or any adjournment(s), postponement(s) or continuation(s)
thereof.
Only shareholders of record at the close of business on May 28, 1999 are
entitled to notice of and to vote at the Annual Meeting and at any and all
adjournments, postponements or continuations thereof. A list of shareholders
entitled to vote at the Annual Meeting will be available for inspection during
ordinary business hours by any shareholder for any purposes germane to the
meeting, at the Company's office at 376 Main Street, Bedminster, New Jersey
07921, for a period of at least ten days prior to the Annual Meeting and will
also be available for inspection at the Annual Meeting. A Proxy and Proxy
Statement for the Annual Meeting are enclosed herewith.
<PAGE>
All shareholders are cordially invited to attend the Annual Meeting in
person. However, to assure your representation at the Annual Meeting, you are
urged to mark, sign, date and return the enclosed Proxy, which is solicited by
the Board of Directors of the Company as promptly as possible in the envelope
enclosed for that purpose. If you attend the Annual Meeting, you may vote in
person even though you returned a Proxy.
By Order of the Board of Directors
/s/ John W. Galuchie, Jr.
--------------------------------------
John W. Galuchie, Jr.
Vice President, Treasurer and Director
Date: June 1, 1999
YOUR VOTE IS IMPORTANT
In order to assure your representation at the meeting, you are requested to
complete, sign and date the enclosed Proxy as promptly as possible and return it
in the enclosed envelope.
<PAGE>
AMERICAN METALS SERVICE, INC.
376 MAIN STREET
PO BOX 74
BEDMINSTER, NEW JERSEY 07921
(908) 234-0078
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PROXY STATEMENT FOR THE ANNUAL MEETING OF SHAREHOLDERS
JUNE 29, 1999
INFORMATION CONCERNING SOLICITATION AND VOTING
General
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This Proxy Statement is being furnished to the shareholders of American
Metals Service, Inc., a Florida corporation (the "Company"), in connection with
the solicitation of proxies, in the form enclosed, by the Board of Directors of
the Company, for use at the Annual Meeting of Shareholders (the "Annual
Meeting") to be held on Tuesday, June 29, 1999 at 8:30am at the Company's office
located at 376 Main Street, Bedminster, New Jersey 07921, and at any and all
adjournments, postponements or continuations thereof, for the purposes set forth
herein and in the accompanying Notice of Annual Meeting of Shareholders. The
Company's telephone number is (908) 234-0078.
These proxy solicitation materials are first being mailed on or about June
1, 1999 to all shareholders entitled to vote at the meeting.
Voting Rights and Solicitation of Proxies
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Only shareholders of record at the close of business on May 28, 1999 (the
"Record Date"), are entitled to notice of and to vote at the Annual Meeting. On
the Record Date, 2,099,573 shares of the Company's common stock, $.01 par value
per share (the "Common Stock"), were issued and outstanding. The presence,
either in person or by proxy, of the holders of a majority of the total number
of shares of Common Stock outstanding on the Record Date is necessary to
constitute a quorum at the Annual Meeting.
Holders of Common Stock are entitled to one vote, in person or by proxy,
for each share of Common Stock owned on the Record Date.
Valid proxies will be voted in accordance with the instructions indicated
thereon. In the absence of contrary instructions, shares represented by valid
proxies will be voted (i) FOR the proposal to elect as directors the four
nominees listed under the caption "Election of Directors", (ii) FOR the approval
of a proposed amendment to the Company's Articles of Incorporation to increase
the number of authorized shares of common stock from 6,000,000 to 12,000,000,
(iii) FOR the approval of a proposed change in the state of incorporation of the
Company from Florida to Delaware and (iv) FOR the approval of the Proposal to
change the Company's name to Golf Rounds.com, Inc. No other business is expected
to come before the Annual Meeting but should any other matter requiring a vote
of shareholders properly arise, it is the intention of the persons named in the
enclosed form of proxy to vote such proxy in accordance with their best judgment
on such matter.
<PAGE>
Execution of the enclosed proxy card will not prevent a shareholder from
attending the Annual Meeting and voting in person. Any proxy may be revoked at
any time prior to the exercise thereof by delivering a written revocation or a
new proxy bearing a later date to the Secretary of the Company, 376 Main Street,
P.O. Box 74, Bedminster, NJ 07921, or by attending the Annual Meeting and voting
in person. Attendance at the Annual Meeting will not, however, in and of itself
constitute revocation of a proxy.
The cost of soliciting proxies will be borne by the Company. In addition,
the Company will reimburse brokerage firms and other persons representing
beneficial owners of shares for their expenses in forwarding solicitation
materials to such beneficial owners. Proxies may be solicited by certain of the
Company's directors, officers and regular employees, without additional
compensation, personally or by telephone or telegram.
Abstentions and broker "non-votes" are included in the determination of the
number of shares present at the meeting for quorum purposes. Abstentions and
broker "non-votes" are not counted in the tabulations of the votes cast on
proposals presented to the shareholders. A broker "non-vote" occurs when a
nominee holding shares for a beneficial owner does not vote on a particular
proposal because the nominee does hot have discretionary voting power with
respect to that item and has not received instructions from the beneficial
owner.
MATTERS TO BE CONSIDERED AT ANNUAL MEETING
PROPOSAL ONE
ELECTION OF DIRECTORS
Nominees
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At the Annual Meeting, four directors are to be elected to hold office
until the next annual meeting of shareholders or until their respective
successors are duly elected and qualified. Unless otherwise indicated, the
persons named in the enclosed form of proxy will vote FOR the election of each
nominee named below (each a "Nominee"). Each Nominee has consented to serve as a
director if elected. It is not expected that any Nominee will be unable to
serve, but, in the event that any Nominee should be unable to serve, the shares
represented by the enclosed proxy card will be voted for a substitute candidate
selected by the Board of Directors.
Assuming a quorum is present, a vote of a plurality of the votes cast at
the Annual Meeting, in person or by proxy, is required to elect each Nominee as
a director. Abstentions and broker non-votes are not counted as votes cast.
Certain information regarding each Nominee is set forth below.
Position and Office Director
Name Age Presently Held with Company Since
--------------- --- ----------------------------- ---------
Paul O. Koether 62 Chairman and Director 1992
John W. Galuchie, Jr. 46 Vice President, Treasurer 1992
and Director
Mark W. Jaindl 39 Director 1992
Thomas K. Van Herwarde 41 President ----
<PAGE>
There are no family relationships between any Nominee and/or any executive
officers of the Company. Information concerning each Nominee's business history
and experience is set forth below.
PAUL O. KOETHER is principally engaged in the following businesses: (i) the
Company, as Chairman since July 1992 and President from July 1992 to May 1999,
(ii) as Chairman and director since July 1987 and President since October 1990
of Kent Financial Services, Inc. ("Kent") and the general partner since 1990 of
Shamrock Associates, an investment partnership which is the principal
stockholder of Kent and (iii) various positions with affiliates of Kent,
including Chairman since 1990 and a registered representative since 1989 of T.
R. Winston & Company, Inc. ("Winston"), a retail broker-dealer, and since July
1992 as Chairman, President and director of the Company. Mr. Koether also has
been Chairman since April 1988, President from April 1989 to February 1997 and a
director since March 1988 of Pure World, Inc. ("Pure World"), and for more than
five years, the Chairman and President of Sun Equities Corporation ("Sun"), a
private, closely-held corporation which is Pure World's principal stockholder.
Until August 1994, when it sold its majority ownership to an unaffiliated party,
Pure World operated as a real estate asset manager through its wholly-owned
subsidiary, NorthCorp Realty Advisors, Inc. ("NorthCorp"). Prior to its sale,
Mr. Koether also served as Chairman and a director of NorthCorp. Since December
1994, Mr. Koether had been a director of Pure World Botanicals, Inc. ("PWBI"), a
wholly-owned subsidiary of Pure World, and since January 1995, its Chairman.
PWBI is a manufacturer of natural products. In September 1998, Mr. Koether was
elected a director and Chairman of Cortech, Inc. ("Cortech") a Denver-based
biopharmaceutical company.
JOHN W. GALUCHIE, JR., a certified public accountant, is principally
engaged in the following businesses: (i) the Company, as Vice President,
Treasurer and a director since July 1992; (ii) Pure World, as Executive Vice
President since April 1988, director from January 1990 until October 1994, and
for more than five years as Vice President and director of Sun; (iii) Kent, in
various executive positions since 1986 and a director from June 1989 until
August 1993; (iv) Winston, as President since January 1990 and director since
September 1989. Mr. Galuchie served as a director of Crown NorthCorp, Inc., the
successor corporation to NorthCorp from June 1992 to August 1996. In September
1998, Mr. Galuchie was elected a director and President of Cortech. Since
December 1998, Mr. Galuchie has been a director of HealthRite, Inc., which
produces, distributes and sells consumable energy, health and diet products.
MARK W. JAINDL. Since October 1997, Mr. Jaindl has been President and Chief
Executive Officer of the American Bank of the Lehigh Valley ("American Bank"), a
commercial bank located in Allentown, Pennsylvania. He has served as a director
and Vice-Chairman of American Bank since June 1997. From May 1982 to October
1991, and again since May 1995, Mr. Jaindl has served as Chief Financial Officer
of Jaindl Farms, which is engaged in diversified businesses, including the
operation of a 12,000-acre turkey farm, a John Deere dealership and a grain
operation. He also serves as the Chief Financial Officer of Jaindl Land Company,
a developer of residential, commercial and industrial properties in eastern
Pennsylvania. From June 1992 until May 1995, he was Senior Vice President of
Pure World. He was Senior Vice President of PWBI from December 1994 until May
1995 and has been a director of PWBI Inc. since December 1994. He has served as
a director of the Company since July 1992. Mr. Jaindl was a director of
NorthCorp from February 1994 until August 1994. Since September 1998, Mr. Jaindl
has been a director and Vice-Chairman of Cortech.
THOMAS K. VAN HERWARDE. Since May 1999, Mr. Van Herwarde has been President
of the Company. From 1995 through May 1999, he was President of PKG Design Inc.,
a developer of two internet websites. In 1994, Mr. Van Herwarde was
self-employed as a consultant to e-marketing, e-commerce and online retail
companies.
BOARD MEETINGS AND COMMITTEES
The Board held no formal meetings during the year ended August 31, 1998 but
acted via unanimous written consents. The Board does not have any formal
committees.
<PAGE>
BENEFICIAL OWNERSHIP
The following table sets forth the beneficial ownership of the Common Stock
of the Company as of May 28, 1999 by each person who was known by the Company to
beneficially own more than 5% of the Common Stock, by each director who owns
shares of Common Stock and by all directors and officers as a group:
Number of Shares Approximate
Name and Address of Common Stock Percent
of Beneficial Owner Beneficially Owned (1) of Class
- - ------------------- ---------------------- -------------
Asset Value Holdings, Inc.
376 Main Street
Bedminster, NJ 07921 400,000 19.05%
Shamrock Associates
211 Pennbrook Road
Far Hills, NJ 07931 817,470(2) 38.94%
Paul O. Koether
211 Pennbrook Road
Far Hills, NJ 07931 959,134(3) 45.68%
John W. Galuchie, Jr.
376 Main Street
Bedminster, NJ 07921 405,000(4) 19.29%
Mark W. Jaindl
3150 Coffeetown Road
Orefield, PA 18069 20,000 .95%
Thomas K. Van Herwarde
376 Main Street
Bedminster, NJ 07921 100,000(5) 4.76%
All directors and officers
as a group (5 persons) 1,085,134(6) 51.68%
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(1) The beneficial owner has both sole voting and sole investment powers
with respect to these shares except as set forth in other footnotes
below.
(2) Reflects 400,000 shares of common stock held by Asset Value Holdings,
Inc. ("AVH"). Shamrock Associates ("Shamrock"), as the ultimate parent
of AVH, disclaims beneficial ownership of these shares.
(3) Includes 417,470 shares beneficially owned by Shamrock. As the general
partner of Shamrock, Mr. Koether may be deemed to own these shares
beneficially. Includes 400,000 shares held by AVH. Mr. Koether may be
deemed to be the beneficial owner of these shares owned by AVH.
Includes 14,166 shares owned by Sun, a private corporation of which
Mr. Koether is Chairman and a principal stockholder. Includes 1,666
shares held by Mr. Koether's Keogh Plan and 875 shares held in trust
for the benefit of Mr. Koether's daughter for which Mr. Koether acts
as the sole trustee. Includes 20,000 shares owned by Mr. Koether's
wife and 63,569 shares held in discretionary accounts for his
brokerage customers. Mr. Koether is also a limited partner of Shamrock
and may be deemed to own beneficially that percentage of the shares
owned by Shamrock represented by his partnership percentage. Mr.
Koether disclaims beneficial ownership of such shares.
(4) Reflects 400,000 shares of common stock held by AVH. Mr. Galuchie may
be deemed to be the beneficial owner of the shares owned by AVH. Mr.
Galuchie disclaims beneficial ownership of the shares.
(5) Does not include 280,000 shares held in escrow in connection with the
PKG Design, Inc. Asset Purchase Agreement.
(6) Reflects 917,746 shares of common stock held by Shamrock and AVH, and
beneficially owned by Messrs. Koether and Galuchie (see Notes 2, 3 and
4).
<PAGE>
COMPLIANCE WITH SECTION 16(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
the Company's officers and directors and persons who own more than ten percent
of a registered class of the Company's equity securities, to file reports of
ownership and changes in ownership on Forms 3, 4 and 5 with the Securities and
Exchange Commission ("SEC") and the National Association of Securities Dealers.
Officers, directors and greater than ten percent shareholders are required by
the SEC regulations to furnish the Company with copies of all Forms 3, 4 and 5
they file.
Based solely on the Company's review of the copies of such forms it has
received and written representations from certain reporting persons that they
were not required to file Form 5 for specified fiscal years, the Company
believes that all its officers, directors and greater than ten percent
beneficial owners complied with all filing requirements applicable to them with
respect to transactions during fiscal 1998.
EXECUTIVE COMPENSATION
Through May 17, 1999, the Company had no paid employees. No officer or
director received any compensation. The Company paid an annual management fee to
Kent of $50,000 in 1998 and 1997 for management services performed for the
Company by Kent personnel. These services included corporate governance,
financial management, and accounting services. Kent is the indirect parent of
AVH, which was the beneficial owner of approximately 19% of the Company's common
stock at May 28, 1999. This fee was based on Kent's estimated costs, and the
Company believes the cost allocation is reasonable.
On May 17, 1999, in connection with the PKG Design, Inc. Asset Purchase
Agreement, the Company entered into an employment agreement (the "Agreement")
with Thomas Van Herwarde, President of the Company for an initial term of one
year, at an annual base compensation of $90,000. On the expiration of this
one-year term, the Agreement shall automatically renew for an additional
one-year period unless the Company and/or Mr. Van Herwarde determine not to
renew the Agreement.
<PAGE>
PROPOSAL TWO
APPROVAL OF AN INCREASE OF
THE AUTHORIZED CAPITAL SHARES
The current authorized capital stock of the Company consists of 6,000,000
shares of common stock, $.01 par value, of which 2,099,573 shares of common
stock were issued and outstanding as of the Record Date. The Board of Directors,
on March 19, 1999, adopted a resolution to increase the authorized number of
shares of common stock from 6,000,000 to 12,000,000. The proposed increase
requires approval of the shareholders.
Holders of common stock are entitled to one vote per share on all matters
submitted to a vote of shareholders of the Company and to ratably receive
dividends, if any, as may be declared from time to time by the Board of
Directors from funds legally available therefor. Upon liquidation, dissolution
or winding up of the Company, holders of common stock are entitled to share
ratably in any assets available for distribution to shareholders after payment
of all obligations of the Company.
If the proposed amendment is approved, all or any part of the authorized
but unissued shares of common stock may thereafter be issued without further
approval from the shareholders, except as may be required by law or the policies
of any stock exchange or stock market on which the shares of stock of the
Company may be listed or quoted, for such purposes and on such terms as the
Board of Directors may determine. Holders of the capital stock of the Company do
not have any preemptive rights to subscribe for the purchase of any shares of
common stock, which means that current shareholders do not have a prior right to
purchase any new issue of common stock in order to maintain their proportionate
ownership.
The proposed amendment will not affect the rights of existing holders of
common stock except to the extent that further issuances of common stock will
reduce each existing shareholder's proportionate ownership.
The Board of Directors has determined that it would be appropriate for the
Company to increase the number of its authorized shares of common stock in order
to have additional shares available for possible future acquisition or financing
transactions and other issuances. The Board of Directors believes that the
complexity of customary financing as well as employment and acquisition
transactions require that the Directors be able to respond promptly and
effectively to opportunities that involve the issuance of shares of common
stock. For example, if this Proposal Two (Approval of an Increase of the
Authorized Capital Shares) is approved, the Company will have the flexibility to
authorize stock splits and stock dividends and to enter into joint ventures and
corporate financings involving the issuance of shares of common stock.
Currently, the Company has no agreements, understandings or arrangements
regarding transactions that are expected to require issuance of the additional
shares of common stock that would be authorized by the proposed amendment.
<PAGE>
The flexibility of the Board of Directors to issue additional shares of
common stock could enhance the Board of Directors' ability to negotiate on
behalf of shareholders should a proposed takeover arise. Although it is not the
purpose of the proposed amendment and the Board of Directors are not aware of
any pending or proposed effort to acquire control of the Company, the authorized
but unissued shares of common stock also could be used by the Board of Directors
to discourage, delay or make more difficult a change in control of the Company.
For example, such shares could be privately placed with purchasers who might
align themselves with the Board of Directors in opposing a hostile takeover bid.
The issuance of additional shares of common stock might serve to dilute the
stock ownership of persons seeking to obtain control and thereby increase the
cost of acquiring a given percentage of the outstanding shares.
If Proposal Two (Approval of an Increase of the Authorized Capital Shares)
is adopted by the Company's shareholders, it will become effective on either of
(i) the date the merger contemplated by Proposal Three herein (Reincorporation
in Delaware) is effected if Proposal Three is approved by the Company's
shareholders, or (ii) on the date articles of amendment are filed to amend the
Company's Articles of Incorporation in Florida, if Proposal Three is not
approved by the Company's shareholders.
Approval of this Proposal Two requires the affirmative vote of the holders
of at least a majority of the shares of the common stock of the Company voted on
this Proposal Two at the Annual Meeting.
RECOMMENDATION OF THE BOARD OF DIRECTORS
THE BOARD OF DIRECTORS DEEMS PROPOSAL TWO TO BE IN THE BEST INTERESTS OF
THE COMPANY AND ITS SHAREHOLDERS AND RECOMMENDS A VOTE "FOR" APPROVAL THEREOF.
UNLESS AUTHORITY TO DO SO IS WITHHELD, THE PERSON(S) NAMED IN EACH PROXY WILL
VOTE THE SHARES REPRESENTED THEREBY "FOR" THE APPROVAL OF THE INCREASE OF THE
AUTHORIZED CAPITAL SHARES.
PROPOSAL THREE
REINCORPORATION IN DELAWARE
GENERAL
On March 19, 1999, the Board of Directors adopted an Agreement and Plan of
Merger, subject to approval by the shareholders, to reincorporate the Company
under the laws of the State of Delaware (the "Reincorporation"). The Company was
incorporated under the laws of the State of Florida in 1968 under the name
American Metals Service, Inc. The Board of Directors believes Delaware corporate
law will better serve the shareholders' interests and provide the Company with
advantages not available under Florida corporate law. Therefore, the Board of
Directors recommends that the shareholders approve the form of Agreement and
Plan of Merger that appears as Appendix A at the end of this Proxy Statement
(the "Merger Agreement") to effect a transaction commonly called a
"reincorporation."
<PAGE>
If the holders of common stock approve Proposal Four (Approval of the
Company's Name Change) the Company will change its name to Golf Rounds.com, Inc.
after the reincorporation. To explain the proposal, however, this Proxy
Statement will call the Company that exists today as a Florida corporation
either "the Company" or "the Florida Corporation" while "the Delaware
Corporation" will refer to the new Delaware corporation that will initially be
organized as a wholly-owned subsidiary of the Florida Corporation. If the
holders of at least a majority of all outstanding shares of the common stock of
the Company approve the Merger Agreement, the Florida Corporation will be merged
into the Delaware Corporation. The effective date will be when the necessary
documents have been filed in both Florida and Delaware. The Delaware Corporation
will be the surviving corporation, and the charter and Bylaws of the Delaware
Corporation will differ from those of the Florida Corporation today, as
discussed below.
ABANDONMENT
The Board of Directors will have the right to abandon the Merger Agreement
and take no further action towards reincorporating the Company in Delaware at
any time before the Reincorporation becomes effective, even after shareholder
approval of this Proposal Three, if for any reason the Board of Directors
determines that it is not advisable to proceed with the Reincorporation.
Consequently, the Board of Directors may abandon the Merger Agreement after
considering the number of shares for which dissenters' rights have been
exercised and the cost to the Company thereof. See the discussion below under
the heading "Rights of Dissenting Shareholders."
REASON FOR THE CHANGE
The Company has not maintained its principal office in Florida for some
time. It is anticipated that the Delaware Corporation will have its principal
corporate offices at the Company's address in New Jersey, and will appoint a
registered agent to represent it in Delaware. The Company's current address is
376 Main Street, P.O. Box 74, Bedminster, New Jersey 07921. Reincorporation in
Delaware will not change the business plan, management, assets, liabilities, net
worth, capitalization or employee benefit plans of the Company. Each outstanding
share of the Company's common stock (the "common stock") will automatically
become one share of the common stock of the Delaware Corporation. Furthermore,
each stock option, warrant or convertible security that would be, or later
becomes, exercisable for, or convertible into, shares of the common stock will
automatically be, or later become, exercisable for, or convertible into, the
same number of shares of the common stock of the Delaware Corporation on the
same terms and conditions.
For many years, Delaware has encouraged incorporation in that state by
adopting modern, comprehensive and flexible corporate laws, and it periodically
updates and revises them to meet changing business needs. The Delaware General
<PAGE>
Corporation Law (the "DGCL") is considered a sophisticated statute, highly
conducive to business. That is why many corporations choose Delaware initially
as their place of incorporation, and why many others have reincorporated in
Delaware by means of transactions like the one now proposed. Because of
Delaware's policy of encouraging incorporation and its preeminence as the most
popular state of incorporation for major corporations, the courts of Delaware
have developed considerable expertise in dealing with corporate issues. As a
result, Delaware's case law interpreting its corporate laws is more developed
than that of any other state. This gives Delaware corporate law an extra measure
of predictability that is useful and often crucial in our precedent-based
judicial system.
For the board of directors and the management of a Delaware corporation,
these features of Delaware law allow greater certainty in managing the
corporation. The state's court system also provides for relatively prompt
resolution of most corporate disputes. For example, Delaware has a specialized
Court of Chancery that hears cases involving corporate law. The Court of
Chancery has no jurisdiction over most other kinds of cases, and therefore its
dockets are not as backlogged as those of courts in many other states. In
addition, the Supreme Court of Delaware hears and decides important corporate
appeals rapidly.
The Board of Directors considered the predictability and flexibility of
Delaware law and the efficiency of its judicial process when it approved the
present proposal. The Board of Directors also recognized the possibility that
choosing to be governed by the corporate law of Delaware, as so many other
corporations have done, may further enhance the reputation of the Company.
AUTHORIZED SHARES OF CAPITAL STOCK
After the Reincorporation, and depending on shareholder approval of
Proposal Two (Approval of an Increase of the Authorized Capital Shares) herein,
the authorized capital stock of the Delaware Corporation will consist of
12,000,000 shares of common stock, par value $.01 per share (see the section
"Changes in Authorized Capital Stock" under this Proposal Three for additional
discussion). The Delaware Corporation will not issue any shares of stock in
connection with the Reincorporation, other than the shares into which the
outstanding shares of the Company will convert. If the shareholders do not
approve Proposal Two, the authorized shares of common stock of the Delaware
Corporation will be 6,000,000.
CONVERSION OF SHARES
As soon as the Reincorporation becomes effective, the holders of the old
shares of the Florida Corporation will become holders of the new shares of the
Delaware Corporation. Shares of the Florida Corporation will automatically
convert into shares of the Delaware Corporation, on these terms:
o The conversion will be on a one-for-one basis.
<PAGE>
o Each share of the common stock of the Florida Corporation which
is outstanding at the effective date will become one share of the
new common stock, par value $.01 per share, of the Delaware
Corporation.
o Each share of the common stock held in the treasury of the
Florida Corporation will become a share held in the treasury of
the Delaware Corporation.
THIS MEANS THAT, BEGINNING ON THE EFFECTIVE DATE, EACH STOCK CERTIFICATE OF
THE FLORIDA CORPORATION WHICH WAS OUTSTANDING JUST BEFORE THE REINCORPORATION
WILL AUTOMATICALLY REPRESENT THE SAME NUMBER OF SHARES OF THE DELAWARE
CORPORATON. THEREFORE, SHAREHOLDERS OF THE FLORIDA CORPORATION NEED NOT EXCHANGE
THEIR STOCK CERTIFICATES FOR NEW STOCK CERTIFICATES OF THE DELAWARE CORPORATION.
LIKEWISE, SHAREHOLDERS SHOULD NOT DESTROY THEIR OLD CERTIFICATES AND SHOULD NOT
SEND THEIR OLD CERTIFICATES TO THE CORPORATION, EITHER BEFORE OR AFTER THE
EFFECTIVE DATE OF REINCORPORATION.
TRADING OF THE STOCK
After the Reincorporation, those who were formerly shareholders of the
Florida Corporation may continue to make sales or transfers using their stock
certificates of the Florida Corporation. The Delaware Corporation will issue new
certificates representing shares of the Delaware Corporation's common stock for
transfers occurring after the effective date of the Reincorporation. On request,
the Delaware Corporation will issue new certificates to anyone who holds stock
certificates of the Florida Corporation. Any request for new certificates will
be subject to normal stock transfer requirements including proper endorsement,
signature guarantee, if required, and payment of applicable taxes.
Shareholders whose shares of the Florida Corporation were freely tradable
before the Reincorporation will own shares of the Delaware Corporation that are
freely tradable after the Reincorporation. Similarly, any shareholders holding
securities with transfer restrictions before the Reincorporation will hold
shares of the Delaware Corporation which have the same transfer restrictions
after the Reincorporation. For purposes of computing the holding period under
Rule 144 of the Securities Act of 1933, as amended, those who hold the Delaware
Corporation's stock certificates will be deemed to have acquired their shares on
the date they originally acquired their shares in the Florida Corporation.
After the Reincorporation, the Delaware Corporation will continue to be a
publicly held company, with its common stock tradable on the OTC Bulletin Board.
The Delaware Corporation will also file with the Securities and Exchange
Commission (the "Commission") and provide to its stockholders the same types of
information that the Florida Corporation has previously filed and provided.
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a brief summary of the principal federal income tax
consequences of the Reincorporation under current law to holders of the common
stock. This summary is for general information only. It does not address
potential legislative changes that may affect these consequences, and it does
not address any state, local or foreign tax consequences of reincorporation. The
Company has not obtained, and does not intend to obtain, a ruling from the
Internal Revenue Service to the effect that the Reincorporation is nontaxable.
Neither the Company nor its shareholders will recognize any gain or loss by
reason of the Reincorporation. The tax basis of the shares of the Delaware
Corporation common stock received by a shareholder of the Company through the
Reincorporation will be the same as the tax basis of common stock of the Company
prior to Reincorporation. A shareholder of the Company who holds the stock as a
capital asset should include the period he or she has held the common stock in
determining the holding period for his or her shares of the Delaware
Corporation.
SHAREHOLDERS SHOULD CONSULT THEIR PERSONAL TAX ADVISERS TO DISCUSS THEIR
OWN TAX SITUATIONS AND ANY POTENTIAL CHANGES IN FEDERAL, STATE AND LOCAL LAWS
AND OTHER APPLICABLE TAX MATTERS RELATING TO THE REINCORPORATION.
COMPARISON OF FLORIDA AND DELAWARE CORPORATE LAWS
If this Proposal Three is approved by the holders of at least a majority of
the Company's outstanding common stock, and if the Company reincorporates in
Delaware as described above, then the shareholders of the Company will become
stockholders of the new Delaware Corporation. There are differences between the
Florida Business Corporation Act ("FBCA") and the DGCL that will affect the
rights of the Company's shareholders in certain respects. Some of these
differences define the particular provisions a corporation may choose to put
into its articles or certificate of incorporation, commonly called the
"charter," and other differences may not affect the Company in a material way.
Although it is impracticable to describe all of the differences between the
corporation laws of Florida and Delaware and the respective charters and Bylaws
of the Florida Corporation and the Delaware Corporation, the following is a
summary of certain significant differences in the rights of shareholders of the
Florida Corporation under the FBCA and of stockholders of the Delaware
Corporation under the DGCL. This summary does not purport to be a complete
discussion of, and is qualified in its entirety by reference to, the FBCA, the
DGCL and the respective charters and Bylaws of the Florida Corporation and the
Delaware Corporation. The discussion of the charter and Bylaws of the Delaware
Corporation contained in this Proxy Statement is qualified in its entirety by
reference to the charter and Bylaws of the Delaware Corporation, copies of which
are attached as Exhibit A and Exhibit B, respectively, to Appendix A of this
Proxy Statement.
<PAGE>
AMENDMENT OF CHARTER
Both the FBCA and the DGCL allow a board of directors to recommend a
charter amendment for approval by shareholders or stockholders, respectively,
and a majority of the shares entitled to vote at a shareholders' or
stockholders' meeting, respectively, are normally enough to approve that
amendment, although the FBCA allows amendment of articles of incorporation by a
majority of votes cast with respect to certain matters. Both bodies of law
require that a majority of the holders of any particular class of stock must
approve the amendment if it would have an adverse effect on the holders of that
class. In addition, both bodies of law allow a corporation to require a vote
larger than a majority on special types of issues.
AMENDMENT OF BYLAWS
The Bylaws of the Florida Corporation provide, as permitted by the FBCA,
that the Board of Directors may amend, adopt or repeal the Florida Corporation's
Bylaws, subject to the rights of its shareholders to alter, amend, or repeal
those Bylaws made by the Board of Directors. Under the DGCL, however, the Board
of Directors may amend, adopt or repeal Bylaws only if permitted by the charter.
The charter of the Delaware Corporation will specifically permit amendment of
the Bylaws by the Board of Directors. Additionally, both the FBCA and the DGCL
allow shareholders or stockholders, respectively, to further amend or repeal
Bylaws adopted or amended by the board of directors.
SPECIAL MEETINGS OF SHAREHOLDERS OR STOCKHOLDERS
Under both the FBCA and the DGCL, the board of directors or anyone
authorized in the charter or Bylaws may call a special meeting of shareholders
or stockholders, respectively. Currently, the Bylaws of the Florida Corporation
allow the President or the Board of Directors to call a special meeting. The
FBCA further provides that holders of not less than 10% of the stock of a
Florida corporation, unless a greater percentage not to exceed 50% is required
by the articles of incorporation, may call a special meeting of shareholders.
The articles of incorporation of the Florida Corporation contain no such
provision. The provision in the Bylaws of the Delaware Corporation will be
comparable, except that the Board of Directors and holders of a majority of the
issued and outstanding shares of capital stock entitled to vote at a special
meeting shall be entitled to call a special meeting.
CORPORATE ACTION WITHOUT SHAREHOLDERS' OR STOCKHOLDERS' MEETING
The DGCL and the FBCA permit shareholders or stockholders, respectively, to
take action by the written consent of at least the minimum number of votes
required to take such action at a shareholders' or stockholders' meeting,
respectively, unless the charter forbids it. The charter of the Florida
Corporation does not, and the charter of the Delaware Corporation will not,
forbid such action by written consent.
<PAGE>
INSPECTION OF SHAREHOLDERS OR STOCKHOLDERS LIST
The FBCA requires five days' written notice from a shareholder of record to
inspect the list of record shareholders for a proper purpose. Under the DGCL,
any stockholder may inspect the stockholders list for any purpose reasonably
related to the person's interest as a stockholder. In addition, for at least ten
days prior to each stockholders' or shareholders' meeting, respectively,
Delaware and Florida corporations must make available for examination a list of
stockholders or shareholders, respectively, entitled to vote at the meeting.
VOTE REQUIRED FOR CERTAIN TRANSACTIONS
Under the FBCA, holders of a majority of the outstanding stock entitled to
vote on such transactions have the power to approve a merger, consolidation or
sale of substantially all the assets unless the articles of incorporation
provide otherwise. The articles of incorporation of the Florida Corporation do
not provide otherwise. Under the DGCL, holders of a majority of the outstanding
stock entitled to vote on such transactions have the power to approve a merger,
consolidation or sale of all or substantially all the assets without a special
provision in the charter, unless the charter provides otherwise. The charter of
the Delaware Corporation will not provide otherwise. Furthermore, in the case of
a merger under the DGCL, stockholders of the surviving corporation do not have
to approve the merger at all, unless the charter provides otherwise, if these
three conditions are met:
o No amendment of the surviving corporation's charter is made by
the merger agreement; and
o Each share of the surviving corporation's stock outstanding or in
the treasury immediately prior to the effective date of the
merger is to be an identical outstanding or treasury share of the
surviving corporation after the effective date; and
o Either no shares of common stock of the surviving corporation and
no shares, securities or obligations convertible into such stock
are to be issued or delivered under the plan of merger, or the
authorized unissued shares or the treasury 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 or
delivered under such plan do not exceed 20% of the shares of
common stock of such constituent corporation outstanding
immediately prior to the effective date of the merger.
Special vote requirements may apply to certain business combinations with
interested shareholders or stockholders. See the discussion below under the
heading "Affiliated Transactions with Interested Shareholders or Stockholders."
<PAGE>
CLASSIFICATION OF DIRECTORS
Both the FBCA and the DGCL permit "classified" boards of directors, which
means that directors have staggered terms that do not all expire at the same
time. The FBCA permits as many as four classes under certain circumstances, the
DGCL permits as many as three. The Florida Corporation currently has one class
of directors, and the same will be true for the Delaware Corporation.
NUMBER OF DIRECTORS
Under the FBCA, the number of directors may be one or more, as specified in
or fixed in accordance with a corporation's charter or Bylaws. The number of
directors may be increased or decreased by amendment of, or in the manner
provided by, a corporation's charter or Bylaws. Under the DGCL, a corporation
may have as few as one director and there is no statutory upper limit on the
number of directors. The specific number may be fixed in the Bylaws or the
charter, but if fixed in the charter, may be changed only by amendment of the
charter. If the charter is silent as to the number of directors, the board of
directors may fix or change the authorized number of directors pursuant to a
provision of the Bylaws. The charter of the Florida Corporation provides that it
shall have at least three directors and its Bylaws provide that it shall have at
least three directors. Currently, there are three members of the Board of
Directors of the Florida Corporation. Under the applicable provision of the
Bylaws of the Delaware Corporation, the Board of Directors shall determine the
size of the Board of Directors. While the Board of Directors has no current
plans to change the number of directors, it may decide to do so in the future.
The Bylaws of the Delaware Corporation will provide for the creation of
committees of the Board of Directors. The Bylaws of the Florida Corporation do
not.
REMOVAL OF DIRECTORS
Under the FBCA, directors may be removed by the shareholders with or
without cause unless the articles of incorporation of the corporation provide
otherwise. The Florida Corporation's Bylaws provide that a director may be
removed with or without cause by a vote of at least 51% of the stock of the
Company. Directors under the DGCL would generally be subject to removal with or
without cause by a majority of the stockholders, unless the charter provides
otherwise. The charter of the Delaware Corporation will not provide otherwise.
The Bylaws of the Delaware Corporation will allow for removal of directors for
reasons other than cause as provided for in the DGCL.
<PAGE>
LIMITATION OF DIRECTORS' LIABILITY
Both states permit the limitation of a director's personal liability while
acting in his or her official capacity. Under the FBCA, a director is not liable
to the corporation or to its shareholders for monetary damages if the director
has acted in good faith and with the same degree of care that an ordinarily
prudent person would exercise in similar circumstances and in a manner he or she
believes to be in the best interests of the corporation. The DGCL, on the other
hand, requires a charter provision in order to limit a director's liability for
breach of his or her fiduciary duty to the corporation. The charter of the
Delaware Corporation will limit such liability to the fullest extent permitted
by the DGCL.
In some cases, directors may be liable despite these limitations. Under the
FBCA, for example, a director is not immune from liability if he or she violates
applicable statutes which expressly make directors liable. The DGCL forbids any
limitation of liability if the director breached his or her duty of loyalty to
the corporation or its stockholders, or if he or she failed to act in good
faith, received an improper personal benefit from the corporation, or authorized
a dividend or stock repurchase that was forbidden by the DGCL.
INDEMNIFICATION OF DIRECTORS AND OFFICERS, AND INSURANCE
With some variations, both the FBCA and the DGCL allow a corporation to
"indemnify," that is, to make whole, any person who is or was a director,
officer, employee or agent of the corporation if that person is held liable for
something he or she did or failed to do in an official capacity. Besides
covering court judgments, out-of-court settlements, fines and penalties, both
laws also allow the corporation to advance certain reasonable expenses the
person will incur or to reimburse the person's expenses after he or she incurs
them, even if liability is not actually proven. The right to indemnification
under both laws does not normally exclude other rights of recovery the
indemnified person may have. The charter and Bylaws of the Delaware Corporation
will generally provide for the greatest indemnification allowed under the DGCL.
The Bylaws of the Florida Corporation restrict the scope of indemnity available
to officers and directors of the Florida Corporation. Hence, the scope of
indemnity available to directors and officers of the Company will be
significantly expanded as a result of the Reincorporation.
Additionally, both the FBCA and the DGCL permit a corporation to purchase
insurance for its directors, officers, employees and agents against some or all
of the costs of such indemnification or against liabilities arising from actions
and omissions of the insured person, even though the corporation may not have
power to indemnify the person against such liabilities. The Bylaws of both the
Florida Corporation and the Delaware Corporation allow for the purchase of such
insurance.
If this Proposal Three is approved by the Company's shareholders, the
indemnification provisions of the FBCA, and not the DGCL, will apply to acts and
omissions that occurred before the effective date of the Reincorporation.
<PAGE>
LOANS AND GUARANTEES OF OBLIGATIONS FOR DIRECTORS
Under the FBCA and the DGCL, a board of directors may authorize loans or
guarantees of indebtedness to employees and officers, including any employee or
officer who is a director, whenever, in the judgment of such board of directors,
such loan or guarantee may reasonably be expected to benefit the corporation.
ISSUANCE OF RIGHTS AND OPTIONS TO DIRECTORS, OFFICERS AND EMPLOYEES
Neither the FBCA nor the DGCL requires shareholder or stockholder approval
of issuances of stock rights or stock options, respectively, as well as plans to
issue rights or options, to directors, officers or employees.
CONSIDERATION FOR SHARES
Under the FBCA and DGCL a corporation may receive cash, services, personal
or real property, leases of real property or any combination of these as payment
in full or in part for issued shares. Under the FBCA and the DGCL, a purchaser
of shares need not pay the price thereof prior to the issuance of the shares if
the corporation receives a binding obligation of the purchaser to pay the
balance of the purchase price.
DIVIDENDS ON STOCK
Subject to its charter provisions, a corporation may generally pay
dividends, redeem shares of its stock or make other distributions to
shareholders or stockholders if the corporation is solvent and would not become
insolvent because of the dividend, redemption or distribution. The assets
applied to such a distribution may not be greater than the corporation's
"surplus." The FBCA defines surplus as the excess of total assets over total
liabilities plus the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
receiving the distribution. The DGCL defines surplus as the excess of net assets
(i.e., the amount by which total assets exceed total liabilities) over capital,
and allows the board to adjust capital (for shares with par value, the capital
need only equal the aggregate par value of such shares). If there is no surplus,
the DGCL allows the corporation to apply net profits from the current or
preceding fiscal year, or both, unless the corporation's net assets are less
than the capital represented by issued and outstanding stock which has a
preference on any distribution of assets.
DISSENTERS' OR APPRAISAL RIGHTS
Generally, "dissenters' rights" or "appraisal rights" entitle dissenting
shareholders or stockholders to receive the fair value of their shares in the
merger or consolidation of a corporation or in the sale of all or substantially
all its assets. The FBCA also extends dissenters' rights to an exchange of a
<PAGE>
corporation's shares, the approval of a control-share acquisition, and certain
amendments of the corporation's articles of incorporation.
The FBCA provides that dissenting shareholders normally have no dissenters'
rights if their shares are listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc., or held of
record by not fewer than 2,000 shareholders. Dissenters' rights under the FBCA
allow any shareholder of a Florida corporation, with various exceptions, to
receive fair value for his or her shares in connection with the transactions
listed in the prior paragraph upon which the shareholder is entitled to vote.
When dissenters' rights are available, the shareholder must deliver to the
corporation before the vote is taken on the matter creating dissenters' rights,
written notice of the shareholder's intent to demand payment for his or her
shares and follow other required procedures. The procedures for the exercise of
dissenters' rights under the FBCA are discussed under the section heading
"Rights of Dissenting Shareholders."
Similarly, under the DGCL, appraisal rights are not available to a
stockholder if the corporation's shares are listed on a national securities
exchange or held by more than 2,000 stockholders of record, or if the
corporation will be the surviving corporation in a merger which does not require
the approval of the surviving corporation's stockholders. However, regardless of
listing on an exchange, a dissenting stockholder in a merger or consolidation
has appraisal rights under the DGCL if the transaction requires him or her to
exchange shares for anything of value other than one or more of the following:
o Shares of stock of the surviving corporation or of a new
corporation which results from the merger or consolidation.
o Shares of another corporation which will be listed on a national
securities exchange or held by more than 2,000 stockholders of
record after the merger or consolidation occurs.
o Cash instead of fractional shares of the surviving corporation or
another corporation.
AFFILIATED TRANSACTIONS WITH INTERESTED SHAREHOLDERS OR STOCKHOLDERS
Provisions in both the FBCA and the DGCL may help to prevent or delay
changes of corporate control. In particular, both the FBCA and the DGCL restrict
or prohibit an interested shareholder or stockholder, respectively, from
entering into certain types of "affiliated transactions" or "business
combinations" unless the board of directors approves the transaction in advance.
Under Section 607.0901 of the FBCA, an interested shareholder is generally
prohibited from entering into certain types of affiliated transactions with a
Florida corporation, unless a majority of the disinterested directors or
two-thirds of the disinterested shareholders approved the affiliated
transaction. An "interested shareholder" under the FBCA is generally a
beneficial owner of at least 10% of the corporation's outstanding voting stock.
The special restrictions on affiliated transactions also do not apply where (i)
<PAGE>
the corporation has not had more than 300 shareholders of record at any time
during the 3 years preceding the announcement date, (ii) the interested
shareholder has been the beneficial owner of at least 80% of the corporation's
outstanding voting shares for at least five years preceding the announcement
date, or (iii) the interested shareholder is the beneficial owner of at least
90% of the outstanding voting shares of the corporation, exclusive of shares
acquired directly from the corporation in a transaction not approved by a
majority of disinterested directors. Affiliated transactions under the FBCA
include mergers and consolidations between corporations or with an interested
shareholder; sales, leases, mortgages or other dispositions to an interested
shareholder of assets with an aggregate market value which either (1) equals 5%
or more of the corporation's consolidated assets or outstanding stock, or (2)
represents 5% or more of the consolidated earning power or net income of the
corporation; issues and transfers of stock with an aggregate market value of at
least 5% in relation to the outstanding stock of the corporation; liquidation or
dissolution of the corporation proposed by or in connection with an interested
shareholder; reclassification or recapitalization of stock that would increase
the proportionate stock ownership of an interested shareholder by at least 5%;
and the receipt by an interested shareholder of benefit from loans, guarantees,
pledges or other financial assistance or tax benefits provided by the
corporation. Affiliated transactions are also permitted when certain statutory
"fair price" requirements are met.
A Florida corporation may choose not to be subject to Section 607.0901 of
the FBCA by means of an election-out provision in its charter. The Florida
Corporation has no such election-out provision and is subject to Section
607.0901 of the FBCA.
Section 203 of the DGCL generally prohibits an interested stockholder from
entering into certain types of business combinations with a Delaware corporation
for three years after becoming an interested stockholder. An "interested
stockholder" under the DGCL is any person other than the corporation and its
majority-owned subsidiaries who owns at least 15% of the outstanding voting
stock, or who owned at least 15% within the preceding three years, and this
definition includes affiliates of the corporation. The prohibited combinations
include:
o Mergers or consolidations.
o Sales, leases, exchanges or other dispositions of 10% or more of
(1) the aggregate market value of all assets of the corporation
or (2) the aggregate market value of all the outstanding stock of
the corporation.
o Issuances or transfers by the corporation of its stock that would
increase the proportionate share of stock owned by the interested
stockholder.
o Receipt by the interested stockholder of the benefit of loans,
advances, guarantees, pledges or other financial benefits
provided by the corporation.
o Any other transaction, with certain exceptions, that increases
the proportionate share of the stock owned by the interested
stockholder.
A Delaware corporation may choose not to be subject to Section 203. The
Company has chosen, however, to accept the protections of Section 203, and
therefore the charter of Delaware Corporation will not waive those protections.
Nevertheless, Section 203 will not apply in the following cases:
<PAGE>
o If, before the stockholder becomes an interested stockholder, the
board of directors approves the business combination or the
transaction that results in the stockholder becoming an
interested stockholder.
o If, after the transaction that results in the stockholder
becoming an interested stockholder, the interested stockholder
owns at least 85% of the voting stock of the corporation
outstanding at the time the transaction commences, subject to
technical calculation rules.
o If, on or after the time the interested stockholder becomes an
interested stockholder, the board of directors approves the
business combination, and at least two-thirds of the outstanding
voting stock which is not owned by the interested stockholder
also ratifies the business combination at a stockholders'
meeting.
MATERIAL CHANGES IN THE CHARTER AND BYLAWS OF THE DELAWARE CORPORATION FROM
THE CHARTER AND BYLAWS OF THE FLORIDA CORPORATION
The charter and Bylaws of the Delaware Corporation will be in effect and
will govern the rights of stockholders in the event this Proposal Three is
approved and the merger of the Florida Corporation into the Delaware Corporation
takes place. Except for the provisions relating to indemnification and
limitation of liability and authorized stock, the material differences between
the two are primarily a result of differences between the FBCA and the DGCL as
discussed above. Set forth below is a summary of certain material changes in the
charter and Bylaws of the Delaware Corporation from the current charter and
Bylaws of the Florida Corporation. The Bylaws of the Delaware Corporation
reflect the DGCL and the provisions of the charter of the Delaware Corporation,
as well as certain administrative differences described below. Copies of the
charter and Bylaws of the Florida Corporation are available for inspection at
the principal office of the Florida Corporation and copies will be sent to
shareholders of the Company upon request.
INDEMNIFICATION AND LIMITATION OF LIABILITY
The charter and Bylaws of the Delaware Corporation provide for
indemnification of directors, officers and other agents (including provisions
authorizing the advancement of expenses incurred in connection with certain
applicable proceedings) to the fullest extent permitted by the DGCL.
Provisions relating to indemnification of directors and officers of the
Florida Corporation are included in the Florida Corporation's Bylaws rather than
in its charter. Such provisions provide for limited indemnification of directors
and officers under certain circumstances.
The Bylaws of the Delaware Corporation expressly authorize the Company to
purchase and maintain directors and officers liability insurance to insure
against liabilities or losses incurred in such capacities whether or not the
corporation would have the power to indemnify the individual under the DGCL.
There is a similar provision in the Bylaws of the Florida Corporation.
<PAGE>
Furthermore, the charter of the Delaware Corporation provides that a
director of the corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted by Delaware law. This provision is intended to
afford directors additional protection and limit their potential liability from
suits alleging a breach of the duty of care by a director. As a result of the
inclusion of such a provision, stockholders may be unable to recover monetary
damages against directors for actions taken by them that constitute negligence
or that are otherwise in violation of their duty of care, although it may be
possible to obtain injunctive or other equitable relief with respect to such
actions. If equitable remedies are found not to be available to stockholders in
any particular situation, stockholders may not have an effective remedy against
a director in connection with such conduct.
In general, the purpose of the changes in the charter of the Delaware
Corporation is to provide indemnification and exculpation provisions that are
customary in modern charter documents of Delaware corporations (particularly in
charter documents of public corporations that have incorporated in Delaware).
CHANGES IN AUTHORIZED CAPITAL STOCK
The charter of the Florida Corporation authorizes it to issue six million
(6,000,000) common shares, having a par value of $0.01 per share.
The charter of the Delaware Corporation authorizes the Delaware Corporation
to issue twelve million (12,000,000) common shares, having a par value of $0.01
per share. Subject to approval of Proposal Two by the shareholders, the charter
will authorize 12,000,000 shares of common stock, with no change in the voting
powers, qualifications, rights and privileges of such shares. If Proposal Two is
not approved by the shareholders, the charter will authorize 6,000,000 shares of
common stock. The increase in the number of shares of authorized common stock
will give the Company better flexibility to engage in certain transactions. See
Proposal Two (Approval of an Increase of the Authorized Capital Shares).
SIZE OF THE BOARD OF DIRECTORS AND BOARD COMMITTEES
The Bylaws of the Florida Corporation prescribe that its Board of Directors
shall have at least three members and do not provide for the creation of
committees of the Board of Directors. The Bylaws of the Delaware Corporation
allow the Board of Directors to establish the size of the Board of Directors and
to establish committees thereof.
<PAGE>
OTHER CHANGES TO REFLECT TECHNICAL DIFFERENCES BETWEEN DELAWARE LAW
AND FLORIDA LAW
In addition to the changes described above, certain technical and less
important changes have been made in the Delaware Corporation's charter and
Bylaws from the Florida Corporation's charter and Bylaws, mainly to reflect
differences between the DGCL and the FBCA. Such technical changes include:
designation of a registered office and registered agent in the State of
Delaware; changes in the minimum and maximum number of days applicable for
giving notice of meetings and for setting record dates; and changing references
in the Bylaws to place or to applicable law from Florida to Delaware, and so
forth.
RIGHTS OF DISSENTING SHAREHOLDERS
Sections 607.1301, 607.1302 and 607.1320 of the FBCA, copies of which are
attached as Appendix B to this Proxy Statement, set forth the rights of
shareholders of the Company who object to the Merger. Any shareholder of the
Company who does not vote in favor of this Proposal Three may, if the Merger is
consummated, have the right to seek to obtain payment in cash of the fair value
of his or her shares by strictly complying with the requirements of Section
607.1320 of the FBCA ("Section 1320").
In order to exercise his or her dissenters' rights, the dissenting
shareholder must deliver to the Company before the taking of the vote on this
Proposal Three a written notice of his or her intent to demand payment for his
or her shares if the Merger is effectuated, and must not vote his or her shares
in favor of the Merger. A proxy or vote against the Merger does not constitute
such a notice of intent to demand payment. Any such notice of intent to demand
payment should be addressed to: American Metals Service, Inc., 376 Main Street,
P.O. Box 74, Bedminster, New Jersey 07921, Attn: Corporate Secretary.
Within ten (10) days after the vote of shareholders authorizing this
Proposal Three, the Company must give written notice of such authorization to
each such dissenting shareholder. Within twenty (20) days after the giving of
such notice, any shareholder who elects to dissent from the Merger must file
with the Company a written notice of such election, stating such shareholder's
name, address, the number, classes and series of shares as to which dissent is
made (which number may be less than all of the shares as to which such
shareholder has a right to dissent) and a demand for payment of the fair value
of such shares. At the time of filing the notice of election to dissent,
dissenting shareholders must submit certificates representing the applicable
shares to the Company. Any shareholder failing to file such election within the
period set forth shall be bound by the terms of the Merger.
Upon filing a notice of election to dissent, the shareholder shall
thereafter be entitled only to payment as provided in Section 1320 and shall not
be entitled to vote or to exercise any other rights of a shareholder. A notice
of election may be withdrawn in writing by the shareholder at any time before an
offer is made by the Company, as provided in subsection (5) of Section 1320, to
pay for his or her shares. After such offer, no such notice of election may be
withdrawn unless the Company consents thereto. However, the right of such
<PAGE>
shareholder to be paid the fair value of his or her shares shall cease, and the
shareholder shall be reinstated to have all of his or her rights as a
shareholder as of the filing of his or her notice of election, including any
intervening preemptive rights and the right to payment of any intervening
dividend or other distribution or, if any such rights have expired or any such
dividend or distribution other than in cash has been completed, in lieu thereof,
at the election of the Company, the fair value thereof in cash as determined by
the Board as of the time of such expiration or completion, but without prejudice
otherwise to any corporate proceedings that may have been taken in the interim,
if:
(a) Such demand is withdrawn as provided in Section 1320;
(b) The Merger is abandoned or rescinded or the shareholders revoke
the authority to effect the Merger;
(c) No demand or petition for the determination of fair value by a
court has been made or filed within the time provided in this
Section 1320; or
(d) A court of competent jurisdiction determines that such
shareholder is not entitled to the relief provided by this
Section 1320.
Within ten (10) days after the expiration of the period within which
shareholders may file their notices of election to dissent, or within ten (10)
days after consummation of the Merger, whichever is later (but not later than 90
days after the shareholders' vote authorizing the Merger), the Company must make
a written offer (which, if the Merger has not been consummated within 90 days of
the shareholders authorization of the Merger, may be conditioned upon such
consummation) to each dissenting shareholder who has made demand as provided in
Section 1320 to pay for the shares at a specified price which the Company
considers to be their fair value. Such offer must be accompanied by financial
statements as provided for in Section 1320.
If within 30 days after the making of such offer any shareholder accepts
the offer, payment for his or her shares shall be made within 90 days after the
making of the offer or the consummation of the Merger, whichever is later. Upon
payment of the agreed value, the dissenting shareholder shall cease to have any
interest in such shares.
If the Company fails to make such offer within the period specified
therefor in Section 1320 or if it makes the offer and any dissenting shareholder
or shareholders fail to accept the offer within the period of 30 days
thereafter, then the Company, within 30 days after receipt of written demand
from any dissenting shareholder given within 60 days after the date on which the
Merger was effected, shall, or at its election of any time within such period of
60 days may, file an action in the appropriate county in the State of Florida
requesting that the fair value of such shares be determined. The court shall
also determine whether each dissenting shareholder, as to whom the Company
requests the court to make such determination, is entitled to receive payment
for his or her shares. If the Company fails to institute these proceedings, any
dissenting shareholder may do so in the name of the Company. All dissenting
shareholders (whether or not residents of Florida), other than shareholders who
<PAGE>
have agreed with the Company as to the value of their shares, shall be made
parties to the proceeding as an action against their shares. The court may, if
it so elects, appoint one or more persons as appraisers to receive evidence and
recommend a decision on the question of fair value. The Company shall pay each
dissenting shareholder the amount found to be due him or her 10 days after final
determination of the proceedings. Upon payment of the judgment, the dissenting
shareholder shall cease to have any interest in such shares. The costs and
expenses of any such proceeding shall be determined by the court and shall be
assessed against the Company, but all or any part of the costs and expenses may
be apportioned and assessed as the court deems equitable against any or all of
the dissenting shareholders who are parties to the proceeding, to whom the
Company has made an offer to pay for the shares, if the court finds that the
action of such shareholders in failing to accept the offer was arbitrary,
vexatious, or not in good faith. Such expenses shall include reasonable
compensation for, and reasonable expenses of, the appraisers, but shall exclude
the fees and expenses of counsel for, and experts employed by, any party. If the
fair value of the shares, as determined, materially exceeds the amount which the
Company offered to pay therefor or if no offer was made, the court in its
discretion may award to any shareholder who is a party to the proceeding such
sum as the court determines to be reasonable compensation to any attorney or
expert employed by the shareholder in the proceeding.
The foregoing does not purport to be a complete statement of the provisions
of Section 1320 and is qualified in its entirety by reference to Section 1320, a
copy of which is attached in full as part of Appendix B. Each shareholder
intending to exercise dissenter's rights should review Appendix B carefully and
consult with his or her counsel for a more complete and definitive statement of
his or her rights and the proper procedure to follow to exercise such rights.
Because this Proposal Three does not involve any change in the nature of
the Company's business, but only involves corporate matters such as the
Reincorporation, the Merger and the charter and Bylaw amendments described
herein, management hopes that no shareholder will exercise a dissenter's right.
Under the Merger Agreement, the Board of Directors may abandon the Merger, even
after shareholder approval, if for any reason the Board of Directors determines
that it is inadvisable to proceed with the Merger, including considering the
number of shares for which dissenters' rights have been exercised and the cost
to the Company thereof.
<PAGE>
VOTE REQUIRED FOR APPROVAL OF THIS PROPOSAL THREE
Approval of this Proposal Three will require the affirmative vote of at
least a majority of the outstanding shares of the Company's common stock
entitled to vote thereon at the Annual Meeting. As of the Record Date, the
current Directors and officers of the Company have the right to vote shares
representing approximately 47% of the outstanding common stock, and have advised
the Company that their present intent is to vote in favor of the proposal to
reincorporate in Delaware. Proxies solicited by the Board of Directors will be
voted FOR this Proposal Three, unless a shareholder specifies otherwise.
RECOMMENDATION OF THE BOARD OF DIRECTORS
THE BOARD OF DIRECTORS DEEMS PROPOSAL THREE TO BE IN THE BEST INTERESTS OF
THE COMPANY AND ITS SHAREHOLDERS AND RECOMMENDS A VOTE "FOR" APPROVAL THEREOF.
UNLESS AUTHORITY TO DO SO IS WITHHELD, THE PERSON(S) NAMED IN EACH PROXY WILL
VOTE THE SHARES REPRESENTED THEREBY "FOR" THE APPROVAL OF THE MERGER AGREEMENT
TO EFFECT THE REINCORPORATION IN DELAWARE.
PROPOSAL FOUR
APPROVAL OF THE COMPANY'S
NAME CHANGE
The holders of common stock will be asked to approve an Amendment to the
Company's Articles of Incorporation to change the name of the Company to Golf
Rounds.com, Inc. Until 1992, the Company was engaged in the wholesale
distribution of aluminum alloys, steel and other specialty metals. In 1992, the
Company liquidated the assets of its business and began actively seeking to
enter into an acquistion with the goal of becoming an operating company. The
Company has determined that it is in its best interests to capitalize on the
popularity of the Internet by focusing on acquiring a company or the assets of a
company that has an Internet related business.
The Company beleives that the name Golf Rounds.com, Inc. will be more
descriptive of it's present and future operations, and it will further serve to
identify the Company as a provider of Internet online services for the sports,
recreation and resort market segments. There will be relatively little cost
associated with the name change.
If Proposal Four (Approval of the Company's Name Change) is adopted by the
Company's shareholders, it will become effective on either (i) the date the
merger contemplated by Proposal Three herein (Reincorporation in Delaware) is
effected if Proposal Three is approved by the Company's shareholders, or (ii) on
the date articles of amendment are filed to amend the Company's Articles of
Incorporation in Florida, if Proposal Three is not approved by the Company's
shareholders.
Approval of this Proposal Four requires the affirmative vote of the holders
of at least a majority of the shares of the common stock of the Company, voted
on this Proposal Four at the Annual Meeting.
RECOMMENDATION OF THE BOARD OF DIRECTORS
THE BOARD OF DIRECTORS DEEM PROPOSAL FOUR TO BE IN THE BEST INTEREST OF THE
COMPANY AND ITS SHAREHOLDERS AND RECOMMENDS A VOTE "FOR" APPROVAL THEREOF.
UNLESS AUTHORITY TO DO SO IS WITHHELD, THE PERSON(S) NAMED IN EACH PROXY WILL
VOTE THE SHARES REPRESENTED THEREBY "FOR" THE APPROVAL OF THE COMPANY'S NAME
CHANGE.
<PAGE>
OTHER MATTERS
The Board of Directors and management of the Company know of no other
matters to be brought before the Annual Meeting of Shareholders other than as
stated in this Proxy Statement. However, if any other matters properly are
presented to the shareholders for action at the Meeting and any adjournments or
postponements thereof, it is the intention of the proxy holders named in the
enclosed proxy to vote in their discretion on all matters on which the shares
represented by such proxy are entitled to vote.
SHAREHOLDER PROPOSALS
Any proposal which a shareholder may desire to present at the 2000 Annual
Meeting of Shareholders must be received in writing by the Secretary of the
Company not later than December 23, 1999.
By Order of the Board of Directors
/s/ John W. Galuchie, Jr.
--------------------------------------
John W. Galuchie, Jr.
Vice President, Treasurer and Director
APPENDIX A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of ------------ 1999, pursuant to
Section 253 of the Delaware General Corporation Law (the "DGCL") and Section
607.1104 of the Florida Business Corporation Act (the "FBCA"), between American
Metals Service, Inc., a Florida corporation having its principal place of
business at 376 Main Street, P.O. Box 74, Bedminster, New Jersey 07921 (the
"Company"), and American Metals Service, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company, having its principal place of business
at 376 Main Street, P.O. Box 74, Bedminster, New Jersey 07921 (the "Surviving
Company").
W I T N E S S E T H:
--------------------
WHEREAS, the Company is a corporation duly organized and existing under the
laws of the State of Florida with total authorized capital stock of Six Million
(6,000,000) shares, $.01 par value per share (the "Company Common Stock").
WHEREAS, the Surviving Company is a corporation duly organized and existing
under the laws of the State of Delaware and will have, effective at the
Effective Date (as defined below) total authorized capital stock of Twelve
Million (12,000,000) shares, $.01 par value per share (the "Surviving Company
Common Stock").
WHEREAS, the respective Boards of Directors of the Company and the
Surviving Company have each adopted resolutions approving this Agreement and
Plan of Merger.
NOW THEREFORE, in consideration of the foregoing and the undertakings
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. MERGER. The Company shall be merged with and into the Surviving Company
pursuant to Section 253 of the DGCL and Section 607.1104 the FBCA. The Surviving
Company shall survive the merger herein contemplated and shall continue to be
governed by the laws of the State of Delaware. The separate corporate existence
of the Company shall cease forthwith upon the Effective Date. The merger of the
Company with and into the Surviving Company shall hereinafter be referred to as
the "Merger."
2. SHAREHOLDER APPROVAL. As soon as practicable after the execution of this
Agreement and Plan of Merger, the Company and the Surviving Company shall, if
necessary under the DGCL and FBCA, submit this Agreement and Plan of Merger to
their respective shareholders for approval.
3. EFFECTIVE DATE. The Merger shall be effective upon the filing of a
Certificate of Ownership and Merger with the Secretary of State of the State of
Delaware and Articles of Merger with the Secretary of State of the State of
Florida, which filings shall be made as soon as practicable after all required
shareholder approvals have been obtained. The time of such effectiveness shall
hereinafter be referred to as the "Effective Date."
<PAGE>
4. COMMON STOCK OF THE COMPANY. On the Effective Date, by virtue of the
Merger and without any action on the part of the holders thereof, each share of
Company Common Stock shall cease to exist and shall be changed and converted
into one fully paid and non-assessable share of the Surviving Company Common
Stock.
5. STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Company
Common Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of the Surviving Company Common Stock into which the shares
of the Company represented by such certificates have been converted as herein
provided. The registered owner on the books and records of the Surviving Company
or its transfer agent of any such outstanding stock certificate shall, until
such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Company or its transfer agent, have and
be entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of the Surviving
Company evidenced by such outstanding certificate as above provided. On request,
the Surviving Company will issue new certificates to anyone who holds stock
certificates of the Company. Any request for new certificates will be subject to
normal stock transfer requirements including proper endorsement, signature
guarantee, if required, and payment of applicable taxes.
6. STOCK OPTION PLAN.
(a) On the Effective Date, if any options or rights granted under the
Company's 1983 incentive stock option plan remain outstanding,
then the Surviving Company shall assume the outstanding and
unexercised portions of such options and such options shall be
changed and converted into options to purchase Surviving Company
Common Stock, such that an option to purchase one (1) share of
the Company Common Stock shall be converted into an option to
purchase one (1) share of the Surviving Company Common Stock. No
other changes in the terms and conditions of such options shall
occur.
(b) One (1) share of the Surviving Company Common Stock shall be
reserved for issuance under the Company's 1983 stock option plan
from and after the Effective Date for each option to purchase one
(1) share of the Company Common Stock so reserved immediately
prior to the Effective Date.
(c) No "additional benefits" within the meaning of Section 424(a)(2)
of the Internal Revenue Code of 1986 (as amended) shall be
accorded to the option holders pursuant to the assumption of
their options.
7. EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving Company
shall assume all obligations of the Company under any and all employee benefit
plans in effect as of such date with respect to which employee rights or accrued
benefits are outstanding as of such date. On the Effective Date, the Surviving
Company shall adopt and continue in effect all such employee benefit plans upon
the same terms and conditions as were in effect immediately prior to the Merger.
8. SUCCESSION. On the Effective Date, the Surviving Company shall succeed
to all of the rights, privileges, debts, liabilities, powers and property of the
Company in the manner of and as more fully set forth in Section 259 of the DGCL.
Without limiting the foregoing, upon the Effective Date, all property, rights,
privileges, franchises, patents, trademarks, licenses, registrations, and other
assets of every kind and description of the Company shall be transferred to,
<PAGE>
vested in and devolved upon the Surviving Company without further act or deed
and all property, rights, and every other interest of the Company and the
Surviving Company shall be as effectively the property of the Surviving Company
as they were of the Company and the Surviving Company, respectively. All rights
of creditors of the Company and all liens upon any property of the Company shall
be preserved unimpaired, and all debts, liabilities and duties of the Company
shall attach to the Surviving Company and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by it.
9. CERTIFICATE OF INCORPORATION AND BYLAWS. From and after the Effective
Date, the Certificate of Incorporation, substantially in the form of Exhibit A
hereto, and Bylaws, substantially in the form of Exhibit B hereto, of the
Surviving Company shall continue in full force and effect until further amended
in accordance with the provisions thereof and applicable law.
10. DIRECTORS AND OFFICERS. The members of the Board of Directors and the
officers of the Surviving Company on the Effective Date shall continue in office
until the expiration of their respective terms of office and until their
successors have been elected and qualified.
11. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Company or by its successors and assigns, there shall be executed and
delivered on behalf of the Company such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action as
shall be appropriate or necessary in order to best or perfect in or to confirm
of record or otherwise in the Surviving Company the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of the Company, and otherwise to carry out the purposes
of this Agreement and Plan of Merger, and the officers and directors of the
Company are fully authorized in the name and on behalf of the Company or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
12. ABANDONMENT. Notwithstanding the approval of this Merger Agreement by
the shareholders of the Company or by the sole stockholder of the Surviving
Company, at any time before the Effective Date, (a) this Merger Agreement may be
terminated and the Merger may be abandoned by the Board of Directors of either
the Company or the Surviving Company or both, including by reason of a
determination, in the sole discretion of either Board of Directors, that holders
of an unacceptable number of shares intend to exercise their statutory appraisal
rights pursuant to Section 607.1320 of the FBCA, or (b) the consummation of the
Merger may be deferred for a reasonable period of time if, in the opinion of the
Boards of Directors of the Company and the Surviving Company, such action would
be in the best interests of such corporations. In the event of termination of
this Merger Agreement, this Merger Agreement shall become void and of no effect
and there shall be no liability on the part of either corporation or their
respective Board of Directors or stockholders with respect thereto, except that
the Company shall pay all expenses incurred in connection with the Merger or in
respect of this Merger Agreement or relating thereto.
13. CONDITIONS TO MERGER. The obligation of the corporations to effect the
transactions contemplated hereby is subject to satisfaction of the following
conditions (any or all of which may be waived by either of the corporations in
its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of the
Company in accordance with applicable provisions of the FBCA;
(b) the Company, as sole stockholder of the Surviving Company, shall
have approved the Merger in accordance with the DGCL; and
<PAGE>
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of the Company to be
material to the consummation of the Merger shall have been
obtained.
14. AMENDMENT. This Agreement and Plan of Merger may be amended by the
Boards of Directors of the Company and the Surviving Company at any time prior
to the Effective Date, provided that an amendment made subsequent to the
approval of this Agreement and Plan of Merger by either the shareholders of the
Company or the sole stockholder of the Surviving Company shall not (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such corporation, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Company to be effected by the
Merger or (3) alter or change any of the terms and conditions of this Agreement
and Plan of Merger if such alteration or change would adversely affect the
holders of any class or series of the stock of such corporation.
15. GOVERNING LAW. This Agreement and Plan of Merger and the legal
relations between the parties shall be governed by and construed in accordance
with the internal laws of the State of Delaware.
16. DISSENTERS' RIGHTS. Shareholders of the Company who dissent from the
Merger pursuant to Section 607.1320 of the FBCA may be entitled, if they comply
with the provisions of the FBCA regarding the rights of dissenting shareholders,
to be paid the fair value of their shares.
<PAGE>
17. COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement and Plan of Merger, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
and Plan of Merger to be executed and attested on its behalf by its officers
hereunto duly authorized, as of the date first above written.
AMERICAN METALS SERVICE, INC.,
a Florida corporation
By:
----------------------------------
Name:
---------------------------------
Title:
---------------------------------
ATTESTED
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
AMERICAN METALS SERVICE, INC.,
a Delaware corporation
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ATTESTED
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
<PAGE>
EXHIBIT A TO APPENDIX A
CERTIFICATE OF INCORPORATION
OF
AMERICAN METALS SERVICE, INC.
(Pursuant to Section 101 and 102 of the
General Corporation Law of the State of Delaware)
The undersigned, in order to form a corporation pursuant to Sections 101
and 102 of the General Corporation Law of the State of Delaware, does hereby
certify as follows:
FIRST: The name of the corporation (the "Corporation") is American Metals
Service, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, New Castle County,
Wilmington, Delaware 19801. The name of the registered agent of the Corporation
in the State of Delaware at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation
shall have the authority to issue is 12,000,000 shares of common stock, par
value $0.01 per share. The holders of shares of Common Stock shall be entitled
to vote on all matters at all meetings of the stockholders of the Corporation,
and shall be entitled to one vote for each share of Common Stock entitled to
vote at any such meeting.
FIFTH: The name and mailing address of the sole incorporator is as follows:
NAME ADDRESS
---- -------
Guy P. Lander c/o Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022-2585
SIXTH: In furtherance and not in limitation of the powers conferred by law,
subject to any limitations contained elsewhere in this Certificate of
Incorporation, By-laws of the Corporation may be adopted, amended or repealed by
<PAGE>
the Board of Directors of the Corporation, provided that any By-laws adopted by
the Board of Directors may be amended or repealed by the stockholders entitled
to vote thereon.
SEVENTH: Election of directors need not be by written ballot.
EIGHTH: No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that nothing in this Article EIGHTH shall
eliminate or limit the liability of any director (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. Neither the amendment nor repeal of this
Article EIGHTH, nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article EIGHTH, shall eliminate or reduce
the effect of this Article EIGHTH in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article EIGHTH, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
NINTH: The Corporation shall, to the fullest extent permitted by the
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may by amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all expenses, liabilities, or other matters referred to in or
covered by said section, and the indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
TENTH: The number of directors of the Corporation shall be fixed as
provided by the By-laws of the Corporation and may be increased or decreased
from time to time in such a manner as may be prescribed by the By-laws.
IN WITNESS WHEREOF, I have hereunto signed my name and affirm, under
penalty of perjury, that this Certificate is my act and deed and that the facts
stated herein are true this ______ day of _________ 1999.
-----------------------------
Guy P. Lander
Sole Incorporator
<PAGE>
EXHIBIT B TO APPENDIX A
BY-LAWS OF
AMERICAN METALS SERVICE, INC.
(a Delaware corporation)
ARTICLE I
-----------
Meetings of Stockholders
------------------------
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders of
AMERICAN METALS SERVICE, INC. (the "Corporation") for the election of directors
and for the transaction of such other business as may properly come before the
meeting shall be held on such date and at such time as may be fixed by the Board
of Directors (the "Board") or if no date and time are so fixed, on the second
Tuesday, in May of each year, if not a legal holiday, and if a holiday, then on
the next succeeding day not a legal holiday, at the office of the Corporation or
at such other place and at such hour as shall be designated by the Board, or, if
no such time be fixed, then at 10:00 o'clock in the forenoon.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board or by
the holder or holders on the date of the call of not less than 25% of the issued
and outstanding shares of capital stock entitled to vote at such special
meeting.
SECTION 3. NOTICE OF MEETINGS. Notice of the place, date and hour of each
annual and special meeting of the stockholders and the purpose or purposes
thereof shall be given personally or by mail in a postage prepaid envelope, not
less than ten or more than 60 days before the date of such meeting, to each
stockholder entitled to vote at such meeting, and, if mailed, it shall be
directed to such stockholder at his address as it appears on the record of
stockholders, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address. Any such
notice for any meeting other than the annual meeting shall indicate that it is
being issued at the direction of the Board. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, prior to the conclusion
of such meeting, protest the lack of notice thereof, or who shall, either before
or after the meeting, submit a signed waiver of notice, in person or by proxy.
Unless the Board shall fix a new record date for an adjourned meeting, notice of
such adjourned meeting need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting at which the
adjournment is taken.
SECTION 4. QUORUM. At all meetings of the stockholders, the holders of the
majority of the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote shall be present in person or by proxy to
constitute a quorum for the transaction of business. In the absence of a quorum,
the holders of a majority of the shares of the capital stock present in person
or by proxy and entitled to vote may adjourn the meeting from time to time. At
any such adjourned meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as originally called.
The stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
<PAGE>
SECTION 5. ORGANIZATION. At each meeting of the stockholders, the Chairman
of the Board, or, if none or in the Chairman's absence, the Chief Executive
Officer, or, if none or in the absence of the Chief Executive Officer, the Vice
Chairman of the Board, or, if none or in the absence of the Vice Chairman of the
Board, the President, or, if none or in the President's absence any Vice
President of the Corporation, shall act as chairman of the meeting or, if no one
of the foregoing officers is present, a chairman shall be chosen at the meeting
by the stockholders entitled to vote who are present in person or by proxy. The
Secretary, or in his absence or inability to act, the person whom the chairman
of the meeting shall appoint secretary of the meeting, shall act as secretary of
the meeting and keep the minutes thereof.
SECTION 6. ORDER OF BUSINESS. The order of business at all meetings of the
stockholders shall be as determined by the chairman of the meeting.
SECTION 7. VOTING. Except as otherwise provided by statute or the
Certificate of Incorporation, each holder of record of shares of stock of the
Corporation having voting power shall be entitled at each meeting of the
stockholders to one vote for every share of such stock standing in his name on
the record of stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 5 of
Article V of these By-laws as the record date for the
determination of the stockholders who shall be entitled to notice
of and to vote at such meeting; or
(b) if such record date shall not have been so fixed, then at the
close of business on the day next preceding the day on which
notice thereof shall be given.
Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed by such
stockholder or his attorney-in-fact. Any such proxy shall be delivered to the
secretary of such meeting at or prior to the time designated in the order of
business for so delivering such proxies. Except as otherwise required by statute
or by the Certificate of Incorporation, any corporate action to be taken by vote
of the stockholders shall require the vote of a majority of the votes cast at a
meeting of the holders of the capital stock of the Corporation entitled to vote
thereon. Unless required by statute, or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by ballot. On a
vote by ballot, each ballot shall be signed by the stockholder voting or by his
proxy, if there be such proxy, and shall state the number of shares voted.
SECTION 8. LIST OF STOCKHOLDERS. A list of stockholders as of the record
date, certified by the Secretary of the Corporation or by the transfer agent for
the Corporation, shall be produced at any meeting of the stockholders upon the
request of any stockholder made at or prior to such meeting.
<PAGE>
SECTION 9. INSPECTORS. The Board may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting shall appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the chairman
of the meeting or any stockholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, request or matter determined by them
and shall execute a certificate of any fact found by them. No director or
candidate for the office of director shall act as an inspector of an election of
directors. Inspectors need not be stockholders.
SECTION 10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Any action required
or permitted to be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders, if any, who
have not consented in writing.
ARTICLE II
----------
Board of Directors
-------------------
SECTION 1. GENERAL POWERS. The business, property and affairs of the
Corporation shall be managed by or under the direction of the Board. The Board
may exercise all such authority and powers of the Corporation and do all such
lawful acts and things as are not by statute or the Certificate of Incorporation
directed or required to be exercised or done by the stockholders.
SECTION 2. NUMBER, INCREASE OR DECREASE THERETO AND TERM OF OFFICE. The
Board shall consist of one or more directors as may be fixed from time to time
by action of the Board, which number may be increased and decreased as provided
in this Section 2 of this Article II, one of whom may be selected by the Board
to be its Chairman. Directors need not be stockholders.
<PAGE>
The Board, by the vote of a majority of the entire Board, may increase the
number of directors and may elect directors to fill the vacancies created by any
such increase in the number of directors until their successors are duly elected
and qualified. The Board, by the vote of a majority of the entire Board, may
decrease the number of directors, but any such decrease shall not affect the
term of office of any director. Vacancies occurring by reason of any such
increase or decrease shall be filled in accordance with Section 13 of this
Article II.
SECTION 3. PLACE OF MEETING. Meetings of the Board shall be held at the
principal office of the Corporation in the State of New Jersey or at such other
place, within or without such state, as the Board may from time to time
determine or as shall be specified in the notice of any such meeting.
SECTION 4. ANNUAL MEETING. The Board shall meet for the purpose of
organization, the election of officers and the transaction of other business, as
soon as practicable after each annual meeting of the stockholders, on the same
day and at the same place where such annual meeting shall be held. Notice of
such meeting need not be given. Such meeting may be held at any other time or
place (within or without the State of Delaware) which shall be specified in a
notice thereof given as hereinafter provided in Section 7 of this Article II.
SECTION 5. REGULAR MEETING. Regular meetings of the Board shall be held at
such times and places as the Board shall from time to time fix. If any day fixed
for a regular meeting shall be a legal holiday at the place where the meeting is
to be held, then the meeting which would otherwise be held on that day shall be
held at the same hour on the next succeeding business day. Notice of regular
meetings of the Board need not be given except as otherwise required by statute
or these By-laws.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board may be called by
the Chairman of the Board, the Chief Executive Officer or by a majority of the
entire Board.
SECTION 7. NOTICE OF MEETINGS. Notice of each special meeting of the Board
(and of each regular meeting for which notice shall be required) shall be given
by the Secretary as hereinafter provided in this Section 7, in which notice
shall be stated the time and place of the meeting. Except as otherwise required
by these By-laws, such notice need not state the purposes of such meeting.
Notice of each such meeting shall be mailed, postage prepaid, to each director,
addressed to him at his residence or usual place of business, by first class
mail, at least two days before the day on which such meeting is to be held, or
shall be sent addressed to him at such place by facsimile telegraph, telex,
cable or wireless, or be delivered to him personally or by telephone, at least
24 hours before the time at which such meeting is to be held. A written waiver
of notice, signed by the director entitled to notice, whether before or after
the time stated therein shall be deemed equivalent to notice. Notice of any such
meeting need not be given to, any director who shall, either before or after the
meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
SECTION 8. QUORUM AND MANNER OF ACTING. Except as hereinafter provided, a
majority of the entire Board shall be present in person or by means of a
conference telephone or similar communications equipment which allows all
<PAGE>
persons participating in the meeting to hear each other at the same time at any
meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting; and, except as otherwise required by statute or the
Certificate of Incorporation, the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum at any meeting of the Board, a majority of the directors
present thereat may adjourn such meeting to another time and place. Notice of
the time and place of any such adjourned meeting shall be given to the directors
who were not present at the time of the adjournment and, unless such time and
place were announced at the meeting at which the adjournment was taken, to the
other directors. At any adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called. The directors shall act only as a Board and the individual
directors shall have no power as such.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the Board at a meeting may be taken without a meeting if all members of
the Board consent in writing to the adoption of the resolutions authorizing such
action. The resolutions and written consents thereto shall be filed with the
minutes of the Board.
SECTION 10. TELEPHONIC PARTICIPATION. One or more members of the Board may
participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
SECTION 11. ORGANIZATION. At each meeting of the Board, the Chairman or, in
his absence, the Vice Chairman or, in his absence, the Chief Executive officer
or, in his absence, the President or, in his absence, another director chosen by
a majority of the directors present shall act as chairman of the meeting and
preside thereat. The Secretary (or, in his absence, any person who shall be an
Assistant Secretary, if any of them shall be present at such meeting, or in the
absence of an Assistant Secretary, such person as shall be appointed by the
Chairman) shall act as secretary of the meeting and keep the minutes thereof.
SECTION 12. RESIGNATIONS. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Board, the Chief
Executive Officer, the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 13. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. If there are no directors in office, then a special
meeting of stockholders for the election of directors may be called and held in
the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute less
than a majority of the whole Board (as constituted immediately prior-to any such
<PAGE>
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office, in the manner provided by statute. When one or more directors shall
resign from the Board, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each director so chosen shall hold
office until their successors shall be elected and qualified.
SECTION 14. REMOVAL OF DIRECTORS. Except as otherwise provided in the
Certificate of Incorporation or in these By-laws, any director may be removed,
either with or without cause, at any time, by the affirmative vote of the
holders of record of a majority of the issued and outstanding stock entitled to
vote for the election of directors of the Corporation given at a special meeting
of the stockholders called and held for the purpose; and the vacancy in the
Board caused by such removal may be filled by such stockholders at such meeting,
or, if the stockholders shall fail to fill such vacancy, as in these By-laws
provided.
SECTION 15. COMPENSATION. The Board shall have authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity.
ARTICLE III
-----------
Executive and Other Committees
------------------------------
SECTION 1. COMMITTEES. The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
two or more of the directors of the Corporation. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee, to
the extent provided in the resolution shall have and may exercise the powers of
the Board in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any
member of such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board to act
at the meeting in the place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and shall report such
minutes to the Board when required. All such proceedings shall be subject to
revision or alteration by the Board; provided, however, that third parties shall
not be prejudiced by such revision or alteration.
SECTION 2. GENERAL. A majority of any committee may determine its action
and fix the time and place of its meetings, unless the Board shall otherwise
provide. Notice of such meeting shall be given to each member of the committee
in the manner provided for in Article II, Section 7. The Board shall have any
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such committee. Nothing herein shall be deemed to prevent the Board
from appointing one or more committees consisting in whole or in part of persons
who are not directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
<PAGE>
SECTION 3. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by any committee at a meeting may be taken without a meeting if all of the
members of the committee consent in writing to the adoption of the resolutions
authorizing such action. The resolutions and written consents thereto shall be
filed with the minutes of the committee.
SECTION 4. TELEPHONE PARTICIPATION. One or more members of a committee may
participate in a meeting by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
ARTICLE IV
------------
Officers
--------
SECTION 1. NUMBER AND QUALIFICATIONS. The officers of the Corporation shall
include a Chairman of the Board, who shall be chosen from among the directors,
and a President and a Secretary, and may include a Vice Chairman of the Board,
who shall be chosen from among the directors, and one or more Executive Vice
Presidents, one or more Vice Presidents, a Chief Executive Officer, a Chief
Financial Officer and a Treasurer. Any two or more offices may be held by the
same person, except that no person shall hold at one time the offices of
President and Secretary; provided that when all of the issued and outstanding
stock of the Corporation is held by one person, such person may hold all or any
combination of offices. Such officers shall be elected from time to time by the
Board, each to hold office until the meeting of the Board following the next
annual meeting of the stockholders, or until his successor shall have been duly
elected and shall have qualified or until his death, or until he shall have
resigned, or have been removed, as hereinafter provided in these By-laws. The
Chairman of the Board or the President shall have the power to appoint such
other officers (including one or more Assistant Treasurers and one or more
Assistant Secretaries) and such agents, as may be necessary or desirable for the
business of the Corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as may be prescribed by the
Board or by the appointing authority.
SECTION 2. RESIGNATIONS. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Board, the Chairman of
the Board, the Chief Executive Officer, the Vice Chairman of the Board, the
President or the Secretary. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3. REMOVAL. Any officer or agent of the corporation may be removed,
either with or without cause, at any time, by the Board at any meeting of the
Board or, except in the case of an officer or agent elected or appointed by the
Board, by the Chairman of the Board or the President.
SECTION 4. VACANCIES. A vacancy in any office, whether arising from death,
resignation, removal or any other cause, may be filled for the unexpired portion
of the term of the office which shall be vacant, in the manner prescribed in
these By-laws for the regular election or appointment to such office.
<PAGE>
SECTION 5. CHIEF EXECUTIVE OFFICER. The Board of Directors may from time to
time, by a majority vote of the whole Board of Directors, designate either the
Chairman of the Board or the President as the Chief Executive Officer of the
Corporation. The Chief Executive Officer shall have general and active
supervision over the business and affairs of the Corporation, subject, however,
to the control of the Board. He shall see that all orders and resolutions of the
Board are carried into effect. He may sign, with the Chief Financial Officer,
the Treasurer, or the Secretary or Assistant Secretary, certificates of stock of
the Corporation. He may sign, execute and deliver in the name of the
Corporation, all deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in cases where the signing, execution or
delivery thereof shall be expressly delegated by the Board or by these By-laws
to some other officer or agent of the Corporation or where any of them shall be
required by law or otherwise to be signed, executed or delivered.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the stockholders and of the Board, at which he is present,
and shall perform such other duties as from time to time may be prescribed by
the Board of Directors.
SECTION 7. THE PRESIDENT. The President may sign, with the Chief Financial
Officer, the Treasurer or the Secretary or an Assistant Treasurer or Assistant
Secretary, certificates of stock of the Corporation and in general, he shall
perform all duties incident to the office of President and such other duties as
from time to time may be assigned to him by the Board.
SECTION 8. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board shall
perform such duties as from time to time may be prescribed by the Board of
Directors or the Chairman of the Board.
SECTION 9. THE VICE PRESIDENTS. Each Executive Vice President and each
other Vice President shall have such powers and perform such duties as the
Board, the Chief Executive Officer or the President may from time to time
prescribe and shall perform such other duties as may be prescribed by the
By-laws. Any Executive Vice President or other Vice President may sign, with the
Chief Financial Officer or the Treasurer or the Assistant Treasurer or the
Secretary or an Assistant Secretary, certificates of stock of the Corporation.
At the request of the Chief Executive Officer or the President, or in case of
either officer's disability or other inability to act, the Board of Directors
may, by a majority vote of the entire Board, designate any one of the Executive
Vice Presidents or other Vice Presidents to perform the duties of the Chief
Executive Officer or the President for such time and subject to such conditions
and limitations as the Board may determine.
SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall:
(a) have charge and custody of, and be responsible for, all the funds
and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation;
<PAGE>
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositories as may be designated by the
Board or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor;
(f) render to the Board, whenever the Board may require, an account
of the financial condition of the corporation;
(g) have active control of and shall be responsible for all matters
pertaining to the accounts of the Corporation and its
subsidiaries, including: the supervision of the auditing of all
payrolls and vouchers of the Corporation and its subsidiaries and
the direction of the manner of certifying the same; the
supervision of the manner of keeping all vouchers for payments by
the Corporation and its subsidiaries, and all other documents
relating to such payments; the receiving, auditing and
consolidation of all operating and financial statements of the
Corporation, its various departments, divisions and subsidiaries;
the supervision of the books of account of the Corporation and
its subsidiaries, their arrangement and classification; and the
supervision of the account and auditing practices of the
Corporation and its subsidiaries; and
(h) shall perform such other duties as from time to time may be
assigned to him by the Chief Executive Officer or the Board.
SECTION 11. TREASURER. The Treasurer shall in general have all duties
incident to the position of Treasurer and such other duties as may be assigned
by the Board or the President.
SECTION 12. SECRETARY. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board and of the
stockholders, and, if requested, of the committees of the Board;
(b) see that all notices are duly given in accordance with the
provisions of the By-laws and as required by law;
(c) be custodian of the seal of the Corporation and affix and attest
the seal to all documents to be executed on behalf of the
Corporation under its seal;
<PAGE>
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him by the Board.
SECTION 13. ASSISTANT OFFICERS. Any assistant officer shall have such
powers and duties of the officer such assistant officer assists as such officer
or the Board shall from time to time prescribe.
SECTION 14. OFFICERS' BONDS OR OTHER SECURITY. If required by the Board,
any officer of the Corporation shall give a bond or other security for the
faithful performance of his duties, in such amount and with such surety or
sureties as the Board may require.
SECTION 15. COMPENSATION. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board; provided, however, that the Board may delegate to the Chairman of
the Board, the Chief Executive Officer or the President the power to fix the
compensation of officers and agents appointed by him. An officer of the
Corporation shall not be prevented from receiving compensation by reason of the
fact that he is also a director of the Corporation, but any such officer who
shall also be a director (except in the event that there is only one director of
the Corporation) shall not have any vote in the determination of the amount of
compensation paid to him.
ARTICLE V
---------
Shares, Etc.
------------
SECTION 1. STOCK CERTIFICATES. Each owner of stock of the Corporation shall
be entitled to have a certificate, in such form as shall be approved by the
Board, certifying the number of shares of stock of the Corporation owned by him.
The certificates representing shares of stock shall be signed in the name of the
Corporation by the Chairman or the Vice Chairman of the Board, or the President
or any Executive Vice President, Senior Vice President or other Vice President
and by the Treasurer or the Assistant Treasurer or the Secretary or an Assistant
Secretary and sealed with the seal of the Corporation (which seal may be a
facsimile, engraved or printed). In case any officer who shall have signed such
certificates shall have ceased to be such officer before such certificates shall
be issued, they may nevertheless be issued by the Corporation with the same
effect as if such officer were still in office at the date of their issue.
SECTION 2. BOOKS OF ACCOUNT AND RECORD OF STOCKHOLDERS. There shall be kept
correct and complete books and records of account of all the business and
transactions of the Corporation. The stock record books and the blank stock
certificate books shall be kept by the Secretary or by any other officer or
agent designated by the Board of Directors.
<PAGE>
SECTION 3. TRANSFERS OF SHARES. Transfers of shares of stock of the
Corporation shall be made on the stock records of the Corporation only upon
authorization by the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and on surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a duly executed
stock transfer power and the payment of all taxes thereon. The person in whose
name shares of stock shall stand on the record of stockholders of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation. Whenever any transfers of shares shall be made for collateral
security and not absolutely and written notice thereof shall be given to the
Secretary or to such transfer agent or transfer clerk, such fact shall be stated
in the entry of the transfer.
SECTION 4. REGULATIONS. The Board may make such additional rules and
regulations, not inconsistent with these By-laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation. It may appoint, or authorize any officer or officers
to appoint, one or more transfer agents or one or more transfer clerks and one
or more registrars and may require all certificates for shares of stock to bear
the signature or signatures of any of them.
SECTION 5. FIXING OF RECORD DATE. The Board may fix, in advance, a date not
more than sixty nor less than ten days before the date then fixed for the
holding of any meeting of the stockholders or before the last day on which the
consent or dissent of the stockholders may be effectively expressed for any
purpose without a meeting, as the time as of which the stockholders entitled to
notice of and to vote at such meeting or whose consent or dissent is required or
may be expressed for any purpose, as the case may be, shall be determined, and
all persons who were stockholders of record of voting stock at such time, and no
others, shall be entitled to notice of and to vote at such meeting or to express
their consent or dissent, as the case may be. The Board may fix, in advance, a
date not more than sixty nor less than ten days preceding the date fixed for the
payment of any dividend or the making of any distribution or the allotment of
rights to subscribe for securities of the Corporation, or for the delivery of
evidence of rights or evidences of interest arising out of any change,
conversion or exchange of capital stock or other securities, as the record date
for the determination of the stockholders entitled to receive any such dividend,
distribution, allotment, rights or interests, and in such case only the
stockholders of record at the time so fixed shall be entitled to receive such
dividend, distribution, allotment, rights or interests.
SECTION 6. LOST, DESTROYED OR MUTILATED CERTIFICATE. The holder of any
certificate representing shares of stock of the Corporation shall immediately
notify the Corporation of any loss, destruction or mutilation of such
certificate, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it which the owner thereof shall
allege to have been lost or destroyed or which shall have been mutilated, and
the Board may, in its discretion, require such owner or his legal representative
to give to the Corporation a bond in such sum, limited or unlimited, and in such
form and with such surety or sureties as the Board in its absolute discretion
shall determine, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such
certificate, or the issuance of such new certificate. Anything herein to the
contrary notwithstanding, the Board, in its absolute discretion, may refuse to
issue any such new certificate, except pursuant to legal proceedings under the
laws of the State of Delaware.
<PAGE>
ARTICLE VI
----------
Contracts, Checks, Drafts, Bank Accounts, Etc.
----------------------------------------------
SECTION 1. EXECUTION OF CONTRACTS. Except as otherwise required by statute,
the Certificate of Incorporation or these By-laws, any contract or other
instrument may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers (including any assistant officer) of the
Corporation as the Board may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Unless
authorized by the Board or expressly permitted by these By-laws, no officer or
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it pecuniarily
liable for any purpose or to any amount, except in the ordinary course of
business and within the scope of his authority as set forth in these By-laws.
SECTION 2. LOANS. Unless the Board shall otherwise determine, the Chairman
of the Board, the Chief Executive Officer, the Vice Chairman of the Board, the
President, the Chief Financial Officer or any Executive Vice President may
effect loans and advances at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual, and
for such loans and advances may make, execute and deliver promissory notes,
bonds or other certificates or evidences of indebtedness of the Corporation, but
no officer or officers shall mortgage, pledge, hypothecate or transfer any
securities or other property of the Corporation other than in connection with
the purchase of chattels for use in the Corporation's operations, except when
authorized by the Board.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidence of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation by such persons and in such manner
as shall from time to time be authorized by the Board.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may from time to time
designate or as may be designated by any officer or officers of the Corporation
to whom such power of designation may from time to time be delegated by the
Board. For the purpose of deposit and for the purpose of collection for the
account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be endorsed,
assigned and delivered by any officer or agent of the Corporation.
SECTION 5. GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time to
time authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may designate or
as may be designated by any officer or officers of the Corporation to whom such
power of designation may from time to time be delegated by the Board. The Board
may make such special rules and regulations with respect to such bank accounts,
not inconsistent with the provisions of these By-laws, as it may deem expedient.
<PAGE>
ARTICLE VII
-----------
Offices
-------
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be as specified in the Certificate of Incorporation.
SECTION 2. OTHER OFFICES. The Corporation may also have such offices, both
within or without the State of Delaware, as the Board may from time to time
determine or the business of the Corporation may require.
ARTICLE VIII
------------
Fiscal Year
-----------
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board. Unless otherwise fixed by the Board, the fiscal year of
the Corporation shall end on August 31 of each calendar year.
ARTICLE IX
----------
Seal
----
The seal of the Corporation shall be circular in form, shall bear the name
of the Corporation and shall include the words and numbers "Corporate Seal",
"Delaware" and the year of incorporation.
<PAGE>
ARTICLE X
---------
Indemnification
---------------
Any person made or threatened to be made a party to or involved in any
action, suit or proceeding, whether civil or criminal, administrative or
investigative (hereinafter, "Proceeding") by reason of the fact that he, his
testator or intestate, is or was a director, officer or employee of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended (but in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) against all expense, loss
and liability (including, without limitation, judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees), actually and
necessarily incurred or suffered by him in connection with the defense of or as
a result of such Proceeding, or in connection with any appeal therein. The
Corporation shall have the power to purchase and maintain insurance for the
indemnification of such directors, officers and employees to the full extent
permitted under the laws of the State of Delaware from time to time in effect.
Such right of indemnification shall not be deemed exclusive of any other rights
of indemnification to which such director, officer or employee may be entitled.
The right to indemnification conferred in this By-Law shall be a contract right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such Proceeding in advance of its final disposition; provided,
however, that if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
services was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a Proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this By-Law or
otherwise.
ARTICLE XI
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Amendment
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The By-laws may be amended, repealed or altered by vote of the holders of a
majority of the shares of stock at the time entitled to vote in the election of
directors, except as otherwise provided in the Certificate of Incorporation. The
By-laws may also be amended, repealed or altered by the Board, but any By-law
adopted by the Board may be amended, repealed or altered by the stockholders
entitled to vote thereon as herein provided.
APPENDIX B
607.1301 DISSENTER'S RIGHTS; DEFINITIONS.--The following definitions apply
to ss. 607.1302 and 607.132:
(1) "Corporation" means the issuer of the shares held by a dissenting
shareholder before the corporate action or the surviving or acquiring
corporation by merger or share exchange of that issuer.
(2) "Fair value", with respect to a dissenter's shares, means the value of
the shares as of the close of business on the day prior to the
shareholders' authorization date, excluding any appreciation or
depreciation in anticipation of the corporate action unless exclusion
would be inequitable.
(3) "Shareholders' authorization date" means the date on which the
shareholders' vote authorizing the proposed action was taken, the date
on which the corporation received written consents without a meeting
from the requisite number of shareholders in order to authorize the
action, or, in the case of a merger pursuant to s.607.1104, the day
prior to the date on which a copy of the plan of merger was mailed to
each shareholder of record of the subsidiary corporation.
II
607.1302 RIGHT OF SHAREHOLDERS TO DISSENT.--(1) Any shareholder of a
corporation has the right to dissent from, and obtain payment of the fair value
of his or her shares in the event of, any of the following corporate actions:
(a) Consummation of a plan of merger to which the corporation is a
party:
1. If the shareholder is entitled to vote on the merger, or
2. If the corporation is a subsidiary that is merged with its parent
under s.607.1104, and the shareholders would have been entitled to
vote on action taken, except for the applicability of s. 607.1104;
(b) Consummation of a sale or exchange of all, or substantially all,
of the property of the corporation, other than in the usual and
regular course of business, if the shareholder is entitled to
vote on the sale or exchange pursuant to s. 607.1202, including a
sale in dissolution but not including a sale pursuant to court
order or a sale for cash pursuant to a plan by which all or
substantially all of the net proceeds of the sale will be
distributed to the shareholders within one year after the date of
sale;
(c) As provided in s. 607.0902(11), the approval of a control-share
acquisition;
(d) Consummation of a plan of share exchange to which the corporation
is a party as the corporation the shares of which will be
acquired, if the shareholder is entitled to vote on the plan;
<PAGE>
(e) Any amendment of the articles of incorporation if the shareholder
is entitled to vote on the amendment and if such amendment would
adversely affect such shareholder by:
1. Altering or abolishing any preemptive rights attached to any of his or
her shares;
2. Altering or abolishing the voting rights pertaining to any of his or
her shares, except as such rights may be affected by the voting rights
of new shares then being authorized of any existing or new class or
series of shares;
3. Effecting an exchange, cancellation, or reclassification of any of his
or her shares, when such exchange, cancellation, or reclassification
would alter or abolish the shareholder's voting rights or alter his or
her percentage of equity in the corporation, or effecting a reduction
or cancellation of accrued dividends or other arrearages in respect to
such shares;
4. Reducing the stated redemption price of any the shareholder's
redeemable shares, altering or abolishing any provision relating to
any sinking fund for the redemption or purchase of any of his or her
shares, or making any of his shares subject to redemption when they
are not otherwise redeemable;
5. Making noncumulative, in whole or in part, dividends of any of the
shareholder's preferred shares which had theretofore been cumulative;
6. Reducing the stated dividend preference of any of the shareholder's
preferred shares; or
7. Reducing any stated preferential amount payable on any of the
shareholder's preferred shares upon voluntary or involuntary
liquidation; or
(f) Any corporation action taken, to the extent the articles of
incorporation provide that a voting or nonvoting shareholder is
entitled to dissent and obtain payment for his or her shares.
(2) A shareholder dissenting from any amendment specified in paragraph
(1)(e) has the right to dissent only as to those of his or her shares
which are adversely affected by the amendment.
(3) A shareholder may dissent as to less than all the shares registered in
his or her name. In that event, the shareholder's rights shall be
determined as if the shares as to which he or she has dissented and
his or her other shares were registered in the names of different
shareholders.
(4) Unless the articles of incorporation otherwise provide, this section
does not apply with respect to a plan of merger or share exchange or a
proposed sale or exchange of property, to the holders of shares of any
class or series which, on the record date fixed to determine the
shareholders entitled to vote at the meeting of shareholders at which
such action is to be acted upon or to consent to any such action
without a meeting, were either registered on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc., or held of record by not fewer than 2,000 shareholders.
<PAGE>
(5) A shareholder entitled to dissent and obtain payment for his or her
shares under this section may not challenge the corporate action
creating his or her entitlement unless the action is unlawful or
fraudulent with respect to the shareholder or the corporation.
III
607.1320 PROCEDURE FOR EXERCISE OF DISSENTERS' RIGHTS.--(1)(a) If a
proposed corporate action creating dissenters' rights under s. 607.1302 is
submitted to a vote at a shareholders' meeting, the meeting notice shall state
that shareholders are or may be entitled to assert dissenters' rights and be
accompanied by a copy of ss. 607.1301, 607.1302, and 607.1320. A shareholder who
wishes to assert dissenters' rights shall:
1. Deliver to the corporation before the vote is taken written notice of
the shareholder's intent to demand payment for his or her shares if
the proposed action is effectuated, and
2. Not vote his or her shares in favor of the proposed action. A proxy or
vote against the proposed action does not constitute such a notice of
intent to demand payment.
(b) If proposed corporate action creating dissenters' rights under s.
607.1302 is effectuated by written consent without a meeting, the
corporation shall deliver a copy of ss. 607.1301, 607.1302, and
607.1320 to each shareholder simultaneously with any request for
the shareholder's written consent or, if such a request is not
made, within 10 days after the date the corporation received
written consents without a meeting from the requisite number of
shareholders necessary to authorize the action.
(2) Within 10 days after the shareholders' authorization date, the
corporation shall give written notice of such authorization or consent
or adoption of the plan of merger, as the case may be, to each
shareholder who filed a notice of intent to demand payment for his of
her shares pursuant to paragraph (1)(a) or, in the case of action
authorized by written consent, to each shareholder, excepting any who
voted for, or consented in writing to, the proposed action.
(3) Within 20 days after the giving of notice to him or her, any
shareholder who elects to dissent shall file with the corporation a
notice of such election, stating the shareholder's name and address,
the number, classes, and series of shares as to which he or she
dissents, and a demand for payment of the fair value of his or her
shares. Any shareholder failing to file such election to dissent
within the period set forth shall be bound by the terms of the
proposed corporate action. Any shareholder filing an election to
dissent shall deposit his or her certificates for certificated shares
with the corporation simultaneously with the filing of the election to
dissent. The corporation may restrict the transfer of uncertificated
shares from the date the shareholder's election to dissent is filed
with the corporation.
<PAGE>
(4) Upon filing a notice of election to dissent, the shareholder shall
thereafter be entitled only to payment as provided in this section and
shall not be entitled to vote or to exercise any other rights of a
shareholder. A notice of election may be withdrawn in writing by the
shareholder at any time before an offer is made by the corporation, as
provided in subsection (5), to pay for his or her shares. After such
offer, no such notice of election may be withdrawn unless the
corporation consents thereto. However, the right of such shareholder
to be paid the fair value of his or her shares shall cease, and the
shareholder shall be reinstated to have all of his or her rights as a
shareholder as of the filing of his or her notice of election,
including any intervening preemptive rights and the right to payment
of any intervening dividend or other distribution or, if any such
rights have expired or any such dividend or distribution other than in
cash has been completed, in lieu thereof, at the election of the
corporation, the fair value thereof in cash as determined by the board
as of the time of such expiration or completion, but without prejudice
otherwise to any corporate proceedings that may have been taken in the
interim, if:
(a) Such demand is withdrawn as provided in this section;
(b) The proposed corporate action is abandoned or rescinded or
the shareholders revoke the authority to effect such action;
(c) No demand or petition for the determination of fair value by
a court has been made or filed within the time provided in
this section; or
(d) A court of competent jurisdiction determines that such
shareholder is not entitled to the relief provided by this
section.
(5) Within 10 days after the expiration of the period in which
shareholders may file their notices of election to dissent, or within
10 days after such corporate action is effected, whichever is later
(but in no case later than 90 days from the shareholders'
authorization date), the corporation shall make a written offer to
each dissenting shareholder who has made demand as provided in this
section to pay an amount the corporation estimates to be the fair
value for such shares. If the corporate action has not been
consummated before the expiration of the 90-day period after the
shareholders' authorization date, the offer may be made conditional
upon the consummation of such action. Such notice and offer shall be
accompanied by:
(a) A balance sheet of the corporation, the shares of which the
dissenting shareholder holds, as of the latest available
date and not more than 12 months prior to the making of such
offer; and
(b) A profit and loss statement of such corporation for the
12-month period ended on the date of such balance sheet or,
if the corporation was not in existence throughout such
12-month period, for the portion thereof during which it was
in existence.
(6) If within 30 days after the making of such offer any shareholder
accepts the same, payment for his or her shares shall be made within
90 days after the making of such offer or the consummation of the
proposed action, whichever is later. Upon payment of the agreed value,
the dissenting shareholder shall cease to have any interest in such
shares.
<PAGE>
(7) If the corporation fails to make such offer within the period
specified therefor in subsection (5) or if it makes the offer and any
dissenting shareholder or shareholders fail to accept the same within
the period of 30 days thereafter, then the corporation, within 30 days
after receipt of written demand from any dissenting shareholder given
within 60 days after the date on which such corporate action was
effected, shall, or at its election of any time within such period of
60 days may, file an action in any court of competent jurisdiction in
the county in this state where the registered office of the
corporation is located requesting that the fair value of such shares
be determined. The court shall also determine whether each dissenting
shareholder, as to whom the corporation requests the court to make
such determination, is entitled to receive payment for his or her
shares. If the corporation fails to institute the proceeding as herein
provided, any dissenting shareholder may do so in the name of the
corporation. All dissenting shareholders (whether or not residents of
this state), other than shareholders who have agreed with the
corporation as to the value of their shares, shall be made parties to
the proceeding as an action against their shares. The corporation
shall serve a copy of the initial pleading in such proceeding upon
each dissenting shareholder who is a resident of this state in the
manner provided by law for the service of a summons and complaint and
upon each nonresident dissenting shareholder either by registered or
certified mail and publication or in such other manner as is permitted
by law. The jurisdiction of the court is plenary and exclusive. All
shareholders who are proper parties to the proceeding are entitled to
judgment against the corporation for the amount of the fair value of
their shares. The court may, if it so elects, appoint one or more
persons as appraisers to receive evidence and recommend a decision on
the question of fair value. The appraisers shall have such power and
authority as is specified in the order of their appointment or an
amendment thereof. The corporation shall pay each dissenting
shareholder the amount found to be due him or her 10 days after final
determination of the proceedings. Upon payment of the judgment, the
dissenting shareholder shall cease to have any interest in such
shares.
(8) The judgment may, at the discretion of the court, include a fair rate
of interest, to be determined by the court.
(9) The costs and expenses of any such proceeding shall be determined by
the court and shall be assessed against the corporation, but all or
any part of such costs and expenses may be apportioned and assessed as
the court deems equitable against any or all of the dissenting
shareholders who are parties to the proceeding, to whom the
corporation has made an offer to pay for the shares, if the court
finds that the action of such shareholders in failing to accept such
offer was arbitrary, vexatious, or not in good faith. Such expenses
shall include reasonable compensation for, and reasonable expenses of,
the appraisers, but shall exclude the fees and expenses of counsel
for, and experts employed by, any party. If the fair value of the
shares, as determined, materially exceeds the amount which the
<PAGE>
corporation offered to pay therefor or if no offer was made, the court
in its discretion may award to any shareholder who is a party to the
proceeding such sum as the court determines to be reasonable
compensation to any attorney or expert employed by the shareholder in
the proceeding.
(10) Shares acquired by a corporation pursuant to payment of the agreed
value thereof or pursuant to payment of the judgment entered therefor,
as provided in this section, may be held and disposed of by such
corporation as authorized but unissued shares of the corporation,
except that, in the case of a merger, they may be held and disposed of
as the plan of merger otherwise provides. The shares of the surviving
corporation into which the shares of such dissenting shareholders
would have been converted had they assented to the merger shall have
the status of authorized but unissued shares of the surviving
corporation.
AMERICAN METALS SERVICE, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
ANNUAL MEETING OF SHAREHOLDERS, JUNE 29, 1999
The undersigned hereby appoints Paul O. Koether and John W. Galuchie, Jr.
or either of them, as proxies with full power of substitution to vote all shares
of common stock, par value $.01 per share, of American Metals Service, Inc.
which the undersigned is entitled to vote, with all powers the undersigned would
possess if personally present, at the Annual Meeting of Shareholders of American
Metals Service, Inc. to be held on Tuesday, June 29, 1999, and at any
adjournment(s), postponement(s) or continuation(s) thereof. The proxies are
instructed as indicated below. In their discretion, the proxies are authorized
to vote upon such other business as may properly come before the Annual Meeting
and any adjournment(s), postponement(s) or continuation(s) thereof.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED
HEREON BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THE SHARES
REPRESENTED BY THIS PROXY WILL BE VOTED "FOR" EACH OF THE PERSONS NAMED HEREON
AS DIRECTORS, "FOR" ITEMS 2, 3, 4 AND 5 WITH RESPECT TO SUCH OTHER MATTERS AS
MAY PROPERLY COME BEFORE THE MEETING AS THE PROXYHOLDERS DEEM ADVISABLE. BY
MARKING, SIGNING, DATING AND RETURNING THIS PROXY, THE UNDERSIGNED HEREBY
REVOKES ALL PRIOR PROXIES.
A proxy submitted which either gives no direction or which "abstains" on
all issues, will be counted for the purpose of determining whether a quorum is
present at the Annual Meeting.
(to be continued and signed on the other side)
<PAGE>
ITEM 1. To elect the nominees whose names appear at right as directors for
a term of one year or until their successors are duly elected and qualified:
FOR all nominees listed to right (except as marked to the contrary below)
WITHHOLD AUTHORITY to vote for all nominees listed to right
NOMINEES: Paul O. Koether
Mark W. Jaindl
John W. Galuchie, Jr.
Thomas K. Van Herwarde
For, except vote withheld from the following nominee(s):
- - --------------------------------------------------
For Against Abstain
ITEM 2. Proposal to approve an increase of the
authorized shares from 6,000,000 to
12,000,000. __ __ __
ITEM 3. Proposal to approve the form of
Agreement and Plan of Merger
to reincorporate in Delaware. __ __ __
ITEM 4. Proposal to change the Company's
name to Golf Rounds.com, Inc. __ __ __
ITEM 5. In their discretion, the proxies are
authorized to vote upon such other
business as may properly come
before the meeting. __ __ __
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE
ENCLOSED ENVELOPE.
Signature
-------------------------------- Date ---------, 1999
Signature and title or authority
Signature
-------------------------------- Date ---------, 1999
Signature if held jointly
IMPORTANT: Signature(s) should agree with name(s) as printed on this proxy.
When shares are held by Joint Tenants, both should sign. When signing as
attorney, executor, administrator, trustee or guardian, please give full title
as such. If a corporation, please sign in full corporate name by President or
other authorized officer. If a partnership, please sign in partnership name by
authorized person.
