Pameco Corp – ‘8-K’ for 7/22/00 – EX-2

On:  Wednesday, 7/26/00, at 3:52pm ET   ·   For:  7/22/00   ·   Accession #:  931763-0-1762   ·   File #:  1-12837

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         4     13K 
 2: EX-2        Agreement and Plan of Merger                           5     28K 
 3: EX-99       Press Release                                          2±     8K 

EX-2   —   Agreement and Plan of Merger
Exhibit Table of Contents

EX-2
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                                                                     EXHIBIT 2

EXHIBIT A 

AGREEMENT AND PLAN OF MERGER  

 THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of June 21, 2000,
is entered into between PAMECO CORPORATION, a Georgia corporation ("Pameco      
Georgia"), and PAMECO ACQUISITION CORPORATION, a Delaware corporation ("Pameco  
Delaware"). Pameco Georgia and Pameco Delaware are hereinafter sometimes        
collectively referred to as the "Constituent Corporations."                     

W I T N E S E T H:  

WHEREAS, Pameco Georgia is a corporation duly organized and existing under
the laws of the State of Georgia;                                               

 WHEREAS, Pameco Delaware is a corporation duly organized and existing under
the laws of the State of Delaware;                                              

WHEREAS, on the date of this Agreement, Pameco Georgia has authority to   
issue 65,000,000 shares of capital stock, consisting of: (i) 40,000,0000        
shares of Class A common stock, par value $0.01 per share, 7,383,261 of which   
shares are issued and outstanding; (ii) 20,000,000 shares of Class B common     
stock, par value $0.01 per share (collectively "Pameco Georgia Common Stock"),  
1,872,929 of which are issued and outstanding; and (iii) 5,000,000 shares of    
preferred stock, par value $1.00 per share ("Pameco Georgia Preferred Stock"),  
of which 600,000 shares of Pameco Georgia Preferred Stock have been designated  
as Series A Cumulative Pay-in-Kind Preferred Stock (the "Georgia Series A       
Preferred Stock") and 140,000 shares of Georgia Series A Preferred Stock are    
issued and outstanding;                                                         

WHEREAS, on the date of this Agreement, Pameco Delaware has authority to  
issue 25,000,000 shares of capital stock, consisting of: (i) 20,000,000 shares  
of common stock, par value $0.01 per share ("Pameco Delaware Common Stock"),    
of which 100 shares are issued and outstanding; (ii) 5,000,000 shares of        
preferred stock, par value $1.00 per share ("Pameco Delaware Preferred          
Stock"), of which 600,000 shares of Pameco Delaware Preferred Stock have been   
designated as Series A Cumulative Pay-in-Kind Preferred Stock (the "Delaware    
Series A Preferred Stock"), and none of which are issued and outstanding;       

WHEREAS, the respective Boards of Directors of Pameco Georgia and Pameco  
Delaware have determined that it is advisable and in the best interests of the  
Constituent Corporations that Pameco Georgia merge with and into Pameco         
Delaware upon the terms and subject to the conditions set forth in this         
Agreement for the purpose of effecting the change of the state of               
incorporation of Pameco Georgia from Georgia to Delaware (the "Merger");        

WHEREAS, the respective Boards of Directors of Pameco Georgia and Pameco  
Delaware have, by resolutions duly adopted, approved this Agreement;            

 WHEREAS, Pameco Georgia has approved this Agreement as the sole stockholder
of Pameco Delaware; and                                                         

WHEREAS, the stockholders of Pameco Georgia have approved this Agreement; 

WHEREAS, this merger is being done solely to effectuate a change of place 
of incorporation of Pameco Georgia and is intended to qualify as a              
reorganization under section 368(a)(1)(f) of the Internal Revenue Code of 1986  
as amended (the "Code").                                                        

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 NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Pameco Georgia and Pameco Delaware hereby agree as follows:       

 1.MERGER. Subject to the conditions of this Agreement, Pameco Georgia shall
be merged with and into Pameco Delaware, and Pameco Delaware shall be the       
surviving corporation in the Merger (hereinafter sometimes referred to as the   
"Surviving Corporation"). The Merger shall become effective upon the date and   
at the time of filing of an appropriate certificate or articles of merger,      
providing for the Merger, with the Secretary of State of the State of Georgia   
and with the Secretary of State of the State of Delaware, whichever later       
occurs (the "Effective Time").                                                  

 2.GOVERNING DOCUMENTS. The Certificate of Incorporation of Pameco Delaware,
as in effect immediately prior to the Effective Time, shall be the Certificate  
of Incorporation of the Surviving Corporation (the "Surviving Corporation       
Certificate of Incorporation") without change or amendment until thereafter     
amended in accordance with the provisions thereof and applicable laws, except   
that the Surviving Corporation Certificate of Incorporation shall be amended    
to change the name of Pameco Delaware to "Pameco Corporation." The Bylaws of    
Pameco Delaware, as in effect immediately prior to the Effective Time, shall    
be the Bylaws of the Surviving Corporation without change or amendment until    
thereafter amended in accordance with the provisions thereof, of the Surviving  
Corporation Certificate of Incorporation and applicable law.                    

3.SUCCESSION. At the Effective Time, the separate corporate existence of  
Pameco Georgia shall cease, and Pameco Delaware shall possess all the rights,   
privileges, powers and franchises of a public and private nature and be         
subject to all the restrictions, disabilities and duties of each of the         
Constituent Corporations; and all the rights, privileges, powers and            
franchises of each of the Constituent Corporations, and all property, real,     
personal and mixed, and all debts due to each of the Constituent Corporations   
on whatever account, including subscriptions for shares, and all other choses   
in action, shall be vested in the Surviving Corporation; and all property,      
rights, privileges, powers and franchises, and all and every other interest     
shall thereafter effectively be the property of the Surviving Corporation as    
they were of the respective Constituent Corporations, and the title to any      
real estate vested by deed or otherwise, in either of such Constituent          
Corporations shall not revert or be in any way impaired by reason of the        
Merger; but all rights of creditors and all liens upon any property of Pameco   
Georgia shall be preserved unimpaired. To the extent permitted by law, any      
claim existing or action or proceeding pending by or against either of the      
Constituent Corporations may be prosecuted as if the Merger had not taken       
place. All debts, liabilities and duties of the respective Constituent          
Corporations shall thenceforth attach to the Surviving Corporation and may be   
enforced against it to the same extent as if such debts, liabilities and        
duties had been incurred or contracted by it. All corporate acts, plans,        
policies, agreements, arrangements, approvals and authorizations of Pameco      
Georgia, its stockholders, Board of Directors and committees thereof, officers  
and agents which were valid and effective immediately prior to the Effective    
Time, shall be taken for all purposes as the acts, plans, policies,             
agreements, arrangements, approvals and authorizations of the Surviving         
Corporation and shall be as effective and binding thereon as the same were      
with respect to Pameco Georgia. The employees and agents of Pameco Georgia      
shall become the employees and agents of the Surviving Corporation and          
continue to be entitled to the same rights and benefits which they enjoyed as   
employees and agents of Pameco Georgia. The requirements of any plans or        
agreements of Pameco Georgia involving the issuance or purchase by Pameco       
Georgia of certain shares of its capital stock shall be satisfied by the        
issuance or purchase of a like number and same class of shares of the           
Surviving Corporation.                                                          

4.DIRECTORS AND OFFICERS. The directors and officers of Pameco Georgia on 
the Effective Time shall be and become the sole directors and officers,         
holding the same titles and positions, of the Surviving Corporation on the      
Effective Time, and after the Effective Time shall serve in accordance with     
the Bylaws of the Surviving Corporation.                                        

5.FURTHER ASSURANCES. From time to time, as and when required by the      
Surviving Corporation or by its successors or assigns, there shall be executed  
and delivered on behalf of Pameco Georgia such deeds and other instruments,     
and there shall be taken or caused to be taken by it all such further and       
other action, as shall be appropriate, advisable or necessary in order to       
vest, perfect or confirm, of record or otherwise, in the                        

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Surviving Corporation the title to and possession of all property, interests,   
assets, rights, privileges, immunities, powers, franchises and authority of     
Pameco Georgia, and otherwise to carry out the purposes of this Agreement, and  
the officers and directors of the Surviving Corporation are fully authorized    
in the name and on behalf of Pameco Georgia or otherwise, to take any and all   
such action and to execute and deliver any and all such deeds and other         
instruments.                                                                    

6.CANCELLATION AND CONVERSION OF SHARES. Each share of Pameco Delaware    
Common Stock issued and outstanding to Pameco Georgia shall be cancelled and    
retired for no consideration and resume the status of authorized and issued     
shares of Pameco Delaware Common Stock. At the Effective Time, by virtue of     
the Merger and without any action on the part of the holder thereof, (a) each   
three shares of Pameco Georgia Common Stock outstanding immediately prior to    
the Effective Time shall be changed and converted into and shall be one fully   
paid and non-assessable share of Pameco Delaware Common Stock (the "Reverse     
Stock Split"), and (b) each share of Georgia Series A Preferred Stock           
outstanding, immediately prior to the Effective Time shall be changed and       
converted into and shall be one fully paid and non-assessable share of          
Delaware Series A Preferred Stock (with the Reverse Stock Split, collectively   
the "Conversion"). All certificates of a single holder of Pameco Georgia        
Common Stock and Georgia Series A Preferred will be aggregated (respectively)   
for the purpose of the Conversion.                                              

7.NO FRACTIONAL SHARES. No fractional shares of Pameco Delaware Common    
Stock and Delaware Series A Preferred Stock shall be issued. In lieu of         
fractional shares, the former holders of Pameco Georgia Common affected by the  
Conversion pursuant to the Merger who would otherwise be entitled to            
fractional shares of Pameco Delaware Common Stock, shall receive, in lieu       
thereof, cash (without interest) in an amount equal to the product of (i) such  
fractional part of a share of Pameco Delaware Common Stock , multiplied by      
(ii) the closing price per share of Pameco Georgia Common Stock on the New      
York Stock Exchange ("NYSE") on the business day immediately prior to the       
Effective Time.                                                                 

8.CONDITIONS TO OBLIGATIONS. The obligations of each party to complete the
Merger are subject to the following conditions:                                 

   a)Pameco Georgia Shareholder Approval of the Merger. The Merger shall
have received the requisite approval of the shareholders of Pameco Georgia      
pursuant to the General Business Corporation Code of the State of Georgia.      

b)Pameco Georgia Shareholder Approval of the Surviving Corporation
Certificate of Incorporation. The Surviving Corporation Certificate of          
Incorporation shall have received the requisite approval of the shareholders    
of Pameco Georgia pursuant to the General Business Corporation Code of the      
State of Georgia and the General Corporation Law of the State of Delaware.      

   c)Pameco Georgia Shareholder Approval of the Reverse Stock Split. The
Reverse Stock Split shall have received the requisite approval of the           
shareholders of Pameco Georgia pursuant to the General Business Corporation     
Code of the State of Georgia and the General Corporation Law of the State of    
Delaware.                                                                       

 d)Approval from Government Agencies. All governmental approvals and
other actions required to effect the Merger and related transactions shall      
have been obtained, if any, without conditions or restrictions that the         
affected party reasonably considers unduly burdensome.                          

e)Approval from Fleet Capital Corporation. All approvals and other
actions required to effect the Merger and related transactions shall have been  
obtained from Fleet Capital Corporation, if any, without conditions or          
restrictions that the affected party reasonably considers unduly burdensome.    

   f)Limited Dissenters' Rights.  The holders of not more than 5% of the
outstanding shares of any class of capital stock of Pameco Georgia shall have   
properly sought and not withdrawn a request to invoke dissenters' rights under  
Section 14-2-1301, et seq. of the Georgia Business Corporation Code, which may  
be waived by Pameco Delaware in its sole discretion.                            

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9.STOCK CERTIFICATES. At and after the Effective Time, all of the         
outstanding certificates which, immediately prior to the Effective Time,        
represented shares of Pameco Georgia Common Stock and Georgia Series A          
Preferred Stock shall be deemed for all purposes to evidence ownership of, and  
to represent, respectively, shares of Pameco Delaware Common Stock, and         
Delaware Series A Preferred Stock into which the shares of Pameco Georgia       
Common Stock and Georgia Series A Preferred Stock, formerly represented by      
such certificates, have been converted as herein provided. The registered       
owner on the books and records of the Surviving Corporation or its transfer     
agents of any such outstanding stock certificate shall, until such certificate  
shall have been surrendered for transfer or otherwise accounted for to the      
Surviving Corporation or its transfer agents, have and be entitled to exercise  
any voting and other rights with respect to, and to receive any dividends and   
other distributions upon, the shares of Pameco Delaware Common Stock and        
Delaware Series A Preferred Stock evidenced by such outstanding certificate as  
above provided.                                                                 

10. OPTIONS AND WARRANTS.                                               

    a)Each option to purchase, or other award of shares of, Pameco Georgia
Common Stock outstanding immediately prior to the Effective Time, shall, by     
virtue of the Merger and without any action on the part of the holder thereof,  
shall cease to represent a right to acquire shares of Pameco Georgia Common     
Stock and shall be converted into and become an option to purchase, or award    
of, that number of shares of Pameco Delaware Common Stock determined by         
multiplying the number of shares of Pameco Georgia Common Stock granted under   
each option, or other award, by the ratio of one-third (1/3), at an exercise    
price for shares of Pameco Georgia Common Stock equal to the original exercise  
price to purchase shares of Pameco Georgia Common Stock multiplied by three     
(3), and upon the same terms and subject to the same conditions as set forth    
in each of the respective options or other awards, as in effect at the          
Effective Time.                                                                 

    b)Each warrant to purchase, or other award of shares of Georgia Series
A Preferred Stock outstanding immediately prior to the Effective Time, shall,   
by virtue of the Merger and without any action on the part of the holder        
thereof, be converted into and become a warrant to purchase, or award of, the   
same number of shares of Delaware Series A Preferred Stock at the same          
exercise price per share, and upon the same terms and subject to the same       
conditions as set forth in each of the respective options or other awards, as   
in effect at the Effective Time.                                                

c)The adjustment provided herein with respect to any option to    
purchase, or other award of shares of Pameco Georgia Common Stock ("Original    
Stock Options") which are "incentive stock options" (as defined in Section 422  
of the Code) shall be and are intended to be effected in a manner which is      
consistent with Section 424(a) of the Code. Pameco Delaware acknowledges and    
confirms that the option plans of Pameco Georgia under which the Original       
Stock Options were issued are assumed by Pameco Delaware, and the duration and  
other terms of the new option shall be the same as the Original Stock Option,   
except that all references to Pameco Georgia shall be deemed to be references   
to Pameco Delaware. As soon as practicable after the Effective Time, Pameco     
Delaware shall deliver to holders of Original Stock Options appropriate option  
agreements representing the right to acquire Pameco Delaware Common Stock on    
the terms and conditions set forth in this Section 10.                          

    d)Pameco Delaware shall take all corporate action necessary to reserve
for issuance a sufficient number of Pameco Delaware Common Stock for delivery   
upon exercise of options or warrants and/or upon the Conversion of Delaware     
Series A Preferred Stock in accordance with this Section 10. Pameco Delaware    
shall file a registration statement on Form S-8 (or any successor form) or      
another appropriate form, effective promptly after the Effective Time, with     
respect to Pameco Delaware Common Stock subject to the new options and shall    
use all reasonable efforts to maintain the effectiveness of such registration   
statement or registration statements (and maintain the current status of the    
prospectus or prospectuses contained therein) for so long as such options       
remain outstanding.                                                             

11. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time, Pameco      
Delaware acknowledges and confirms its assumption by operation of law all       
obligations under any and all employee benefit plans of Pameco Georgia in       
effect as of the Effective Time or with respect to which employee rights or     
accrued benefits are outstanding as of the Effective Time.                      

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12. AMENDMENT. Subject to applicable law, this Agreement may be amended,
modified or supplemented by written agreement of the parties hereto at any      
time prior to the Effective Time with respect to any of the terms contained     
herein; provided, however, that no such amendment, modification or supplement   
not adopted and approved by the stockholders of Pameco Georgia and Pameco       
Delaware shall affect the rights of either or both of such stockholders in a    
manner which is materially adverse to either or both of them.                   

13. TERMINATION. At any time prior to the Effective Time, this Agreement
may be terminated and the Merger may be abandoned by the Board of Directors of  
Pameco Georgia, notwithstanding approval of this Agreement by the sole          
stockholder of Pameco Delaware or by the stockholders of Pameco Georgia, or     
both, if, in the opinion of the Board of Directors of Pameco Georgia,           
circumstances arise which, in the opinion of such Board of Directors, make the  
Merger for any reason inadvisable.                                              

14. COUNTERPARTS; FACSIMILE. In order to facilitate the filing and      
recording of this Agreement, the same may be executed in two or more            
counterparts (including by facsimile signature), each of which shall be deemed  
to be an original and the same agreement.                                       

15. GOVERNING LAW. This Agreement shall be governed by and construed in 
accordance with the laws of the State of Delaware.                              

IN WITNESS WHEREOF, Pameco Georgia and Pameco Delaware have caused this   
Agreement to be signed by their respective duly authorized officers as of the   
date first above written.                                                       

                                  PAMECO ACQUISITION CORPORATION

                                   /s/ Robert J. Davis
                                         By: _________________________________

                               Robert J. Davis
                                         Name: _______________________________

                                       Chief Financial Officer
                                         Title: ______________________________

                      PAMECO CORPORATION

                                   /s/ Dixon R. Walker
                                         By: _________________________________

                               Dixon R. Walker
                                         Name: _______________________________

                                 President and CEO
                                         Title: ______________________________

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Dates Referenced Herein

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Filed on:		7/26/00							None on these Dates
For Period End:		7/22/00
		6/21/00		1
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