AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated March 2, 1998 (the
"Agreement"), between EIF Holdings, Inc., a Hawaii corporation
("EIF Holdings"), and U S Industrial Services, Inc., a Delaware
corporation ("US Industrial") (EIF Holdings and US Industrial are
sometimes referred to herein collectively as the "Constituent
Corporations").
W I T N E S S E T H:
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WHEREAS, US Industrial was incorporated in the State of
Delaware on January 9, 1998, and is the wholly-owned subsidiary
of EIF Holdings; and
WHEREAS, the Board of Directors of EIF Holdings believes
that it is in the best interest of EIF Holdings to reincorporate
in the State of Delaware by merging with and into US Industrial
pursuant to this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual agreements and undertakings herein given and other
good and valuable consideration, the parties hereto agree, in
accordance with the applicable provisions of the statutes of
Hawaii and Delaware, respectively, which permit such merger, EIF
Holdings shall be, and hereby is, merged with and into US
Industrial, at the Effective Time (as herein defined), and that
the terms and conditions of the merger hereby agreed to (the
"Merger") shall be as hereinafter set forth:
ARTICLE ONE
Principal Terms of Merger
Section 1.01. Merger. At the Effective Time (as herein
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defined), EIF Holdings shall merge with and into US Industrial
provided that this Agreement has not been terminated pursuant to
Section 4.02 herein.
Section 1.02. Effective Time of Merger. The Merger shall
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become effective as of the completion of all filing requirements
specified in Sections 4.03 and 4.04 of this Agreement, and such
date and time is hereinafter referred to as the "Effective Time."
ARTICLE TWO
Certificate of Incorporation, By-Laws and Directors
Section 2.01. Certificate of Incorporation. The
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Certificate of Incorporation of US Industrial in effect at the
Effective Time of the Merger shall be the Certificate of
Incorporation of US Industrial, to remain unchanged until amended
as provided by law.
Section 2.02. By-Laws. The By-Laws of US Industrial in
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effect at the Effective Time of the Merger shall be the By-Laws
of US Industrial, to remain unchanged until amended as provided
by law.
Section 2.03. Directors. EIF Holdings, in its capacity as
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sole shareholder of US Industrial, shall elect as directors of US
Industrial those individuals elected by the shareholders of EIF
Holdings prior to the Effective Time of the Merger, and such
persons shall serve as directors of US Industrial until the next
annual meeting of the stockholders of US Industrial.
ARTICLE THREE
Exchange and Cancellation of Shares
At the Effective Time of the Merger, all issued and
outstanding shares of EIF Holdings common stock, no par value
(the "Old Common Stock") shall be canceled and the corporate
existence of the said corporation shall cease. Shares of US
Industrial's common stock, par value $.01 per share (the "New
Common Stock") shall be issued to the shareholders of EIF
Holdings as a result of the Merger as herein provided.
Section 3.01. The Surviving Corporation Common Stock. Each
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share of Old Common Stock which is outstanding prior to the
Effective Time of the Merger shall be converted into one issued
and outstanding share of New Common Stock and, from and after the
Effective Time of the Merger, the holders of all of said issued
and outstanding shares of Old Common Stock shall automatically be
and become holders of shares of New Common Stock upon the basis
above specified, whether or not certificates representing said
shares are then issued and delivered.
Section 3.02. Cancellation of Old Common Stock. After the
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Effective Time of the Merger, each holder of record of any
outstanding certificate or certificates theretofore representing
shares of Old Common Stock may surrender the same to American
Stock Transfer & Trust Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and such holder shall be entitled upon such
surrender to receive in exchange therefor a certificate or
certificates representing an equal number of shares of New Common
Stock. Until so surrendered, each outstanding certificate which,
prior to the Effective Time of the Merger, represented one or
more shares of Old Common Stock shall be deemed for all corporate
purposes to evidence ownership of an equal number of shares of
New Common Stock. Upon the surrender of a certificate or
certificates representing shares of Old Common Stock, a proper
officer of US Industrial shall cancel said certificate or
certificates.
ARTICLE FOUR
Adoption and Termination
Section 4.01. Submission to Vote of Shareholders. This
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Agreement shall be submitted to the shareholders of EIF Holdings,
as provided by applicable law, and shall take effect, and be
deemed to be the Agreement and Plan of Merger of the Constituent
Corporations, upon the approval or adoption thereof by said
shareholders of EIF Holdings in accordance with the requirements
of the laws of the State of Hawaii.
Section 4.02. Termination of Agreement. Anything herein or
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elsewhere to the contrary notwithstanding, this Agreement may be
abandoned by EIF Holdings by an appropriate resolution of its
Board of Directors at any time prior to the Effective Time of the
Merger if such Board of Directors believes that the Merger is not
in the best interests of EIF Holdings or in the event that the
shareholders who hold more than two (2%) percent of the
outstanding and issued shares of Old Common Stock dissent from
the Merger and seek appraisal rights pursuant to Sections 415-80
and 415-81 of the Hawaii Business Corporation Act.
Section 4.03. Filing of Articles of Merger in the State of
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Hawaii. As soon as practicable after the requisite shareholders
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approval referenced in Section 4.01 herein, Articles of Merger to
effectuate the terms of this Agreement shall be executed and
acknowledged by US Industrial and thereafter delivered to the
Commissioner of Securities of the Department of Commerce and
Consumer Affairs of the State of Hawaii for filing and recording
in accordance with applicable law, unless this Agreement has been
terminated pursuant to Section 4.02 herein.
Section 4.04. Filing of Certificates of Merger in the State
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of Delaware. As soon as practicable after the requisite
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shareholder approval referenced in Section 4.01 herein, a
Certificate of Merger to effectuate the terms of this Agreement
shall be executed by each of the Constituent Corporations and
thereafter delivered to the Secretary of the State of Delaware
for filing and recording in accordance with applicable law,
unless this Agreement has been terminated pursuant to Section
4.02 herein.
ARTICLE FIVE
Effect of Merger
Section 5.01. Effect of Merger. At the Effective Time of
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the Merger, the Constituent Corporations shall be a single
corporation, which shall be US Industrial, and the separate
existence of EIF Holdings shall cease except to the extent
provided by the laws of the States of Hawaii and Delaware. US
Industrial shall thereupon and thereafter possess all the rights,
privileges, immunities and franchises, of both a public and
private nature, of each of the Constituent Corporations; and all
property, real, personal and mixed, and all debts due on whatever
account, including subscriptions to shares, and all other choses
in action, and all and every other interest of, or belonging to,
or due to each of the Constituent Corporations, shall be taken
and deemed to be vested in US Industrial without further act or
deed; and the title to all real estate, or any interest therein,
vested in either of the Constituent Corporations shall not revert
or be in any way impaired by reason of the Merger. US Industrial
shall thenceforth be responsible and liable for all of the
liabilities and obligations of each of the Constituent
Corporations and any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may
be prosecuted to judgment as if the Merger had not taken place,
or the Surviving Corporation may be substituted in its place, and
neither the rights of creditors nor any liens upon the property
of either of the Constituent Corporations shall be impaired by
the Merger. US Industrial shall assume any stock option or
similar employee benefits plan of EIF Holdings, and all
contractual rights of EIF Holdings for the issuance of shares of
the Old Common Stock, and such issuances or reserves for
issuances shall be of shares of New Common Stock on an as-
converted basis as set forth in Section 3.01 hereof.
Section 5.02. Business Combinations With American Eco. US
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Industrial hereby acknowledges that American Eco Corporation, an
Ontario corporation ("American Eco"), beneficially owns 8,800,000
shares of Old Common Stock at the date of this Agreement and
further recognizes that, as a result of such stock ownership,
American Eco could be deemed to be an Interested Stockholder (as
that term is defined under Section 203 of the General Corporation
Law of the State of Delaware) of US Industrial after the
consummation of the Merger. US Industrial hereby represents and
warrants to EIF Holdings that the Board of Directors of US
Industrial has considered the stock ownership that American Eco
will have in US Industrial at the Effective Time of the Merger in
approving this Agreement. US Industrial further acknowledges
that, as a result of its assumption of all of EIF Holdings'
obligations pursuant to this Agreement and the consummation of
the Merger, American Eco will consummate a certain stock purchase
agreement pursuant to which American Eco will purchase 10,000,000
shares of New Common Stock. US Industrial hereby represents and
warrants to EIF Holdings that the Board of Directors of US
Industrial has approved such stock purchase.
ARTICLE SIX
Post Merger Undertakings
Section 6.01 Service of Process. US Industrial hereby
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agrees that it may be served with process within the State of
Hawaii in any proceeding for the enforcement of any obligation of
EIF Holdings and in any proceeding for the enforcement of the
rights of any dissenting shareholder of EIF Holdings.
Section 6.02 Appointment of Agent for Service of Process.
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US Industrial shall appoint a resident of Hawaii as its duly
appointed agent to accept service of process delivered pursuant
to Section 6.01 herein. Such agency shall be deemed to be given
with an interest and shall be irrevocable.
Section 6.03 Payments to Dissenting Shareholders. US
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Industrial shall promptly pay to any shareholders of EIF Holdings
who dissent from the Merger the amount, if any, to which such
dissenting shareholders shall be entitled with respect to the
Merger pursuant to applicable law.
ARTICLE SEVEN
Miscellaneous
Section 7.01 Further Actions. Each of the Constituent
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Corporations shall take or cause to be taken all action, or do,
or cause to be done, all things necessary, proper or advisable
under the laws of the States of Hawaii and Delaware to consummate
and make effective the Merger following approval of the Merger by
the shareholders of EIF Holdings in accordance with the laws of
said States.
Section 7.02. Amendments. At any time prior to the
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Effective Time of the Merger (notwithstanding any shareholder
approval), if authorized by their respective Board of Directors,
the parties hereto may, by written agreement, amend or supplement
any of the provisions of this Agreement. Any written instrument
or agreement referred to in this section shall be validly and
sufficiently authorized for the purposes of this Agreement if
signed on behalf of each of the Constituent Corporations by a
person authorized to sign this Agreement.
Section 7.03. Counterparts. This Agreement may be
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executed in any number of counterparts, each of which shall be
deemed to be an original instrument, but all such counterparts
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Constituent Corporations,
pursuant to the approval and authority duly given by resolutions
adopted by their respective Board of Directors have caused this
Agreement and Plan of Merger to be executed by an authorized
officer of each party hereto, and the corporate seal affixed on
the date above first written.
U S INDUSTRIAL SERVICES, INC.
(a Delaware corporation)
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary and Treasurer
EIF HOLDINGS, INC.
(a Hawaii corporation)
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary and Treasurer