EXHIBIT 3(vi)
AGREEMENT AND PLAN OF MERGER OF ATN. INC., A UTAH CORPORATION, AND
AMERICAN TELEMEDIA NETWORK, INC., A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of June 25, 1987 (the "Agreement")
is between ATN, Inc., a Utah corporation ("ATN Utah") and American Telemedia
Network, Inc., a Delaware corporation ("ATN Delaware"). ATN Utah and ATN
Delaware are sometimes referred to herein as the "Constituent Corporations."
RECITALS:
A. ATN Utah is a a corporation duly organized and existing under the laws of
the State of Utah and has an authorized capital of 30,000,000 shares,
comprising 10,000,000 shares of undesignated Preferred Stock, having no par
value, issuable in one or more series, of which no shares are issued and
outstanding, and 20,000,000 shares of Common Stock, having no par value,
6,911,917 shares of which are issued and outstanding.
B. ATN Delaware is a corporation duly organized and existing under the laws of
the State of Delaware and has an authorized capital of 30,000,000 shares, of
which 10,000,000 shares are undesignated Preferred Stock, $.01 par value,
issuable in one or more series, of which no shares are issued and
outstanding, and 20,000,000 shares of Common Stock, having no par value, 100
shares of which are issued and outstanding and are held by ATN Utah.
C. The Board of Directors of ATN Utah has determined that, for the purpose of
effecting the reincorporation of ATN Utah in the State of Delaware, it is
advisable that ATN Utah merge with and into ATN Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of ATN Utah and ATN Delaware have
approved this Agreement and the Boards of Directors of ATN Utah and ATN
Delaware have directed that this Agreement be submitted to a vote of their
shareholders. NOW THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, ATN hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I
MERGER
1.1 MERGER
In accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the Utah Business Corporation Act, ATN Utah shall be merged
with and into ATN Delaware (the "Merger") and ATN Delaware shall be, and is
herein sometimes referred to as, the "Surviving Corporation," and the name of
the Surviving Corporation shall be "American Telemedia Network, Inc."
1.2 FILING AND EFFECTIVENESS
The Merger shall become effective when the following actions shall have been
completed:
a) This Agreement and the Merger shall have been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the Utah Business
Corporation Act;
b) All of the conditions precedent to the consummation of the Merger specified
in this Agreement shall have been satisfied or duly waived by the party
entitled to satisfaction thereof;
c) An executed Certificate of Merger or an executed counterpart of this
Agreement shall have been filed with the Secretary of State of the State of
Delaware; and
d) An executed Certificate of Merger meeting the requirements of the Utah
Business Corporation Act shall have been filed with the Division of
Corporations and Commercial Code of the State of Utah. The date and time
when the Merger shall become effective, as aforesaid, is herein called the
"Effective Date of Merger."
1.3 - CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of ATN Delaware as in effect immediately prior
to the Effective Date of Merger shall continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
1.4 - BY-LAWS
The By-Laws of ATN Delaware as in effect immediately prior to the Effective Date
of Merger shall continue in full force and effect as the By-Laws of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
1.5 - DIRECTORS AND OFFICERS
The directors and officers of ATN Delaware immediately prior to the Effective
Date of Merger shall be the directors and officers of the Surviving Corporation
until their successors shall have been elected and qualified or until otherwise
provided by law, the Certificate of Incorporation of the Surviving Corporation,
by or the By-Laws of the Surviving Corporation.
1.6 - EFFECT OF MERGER
Upon the Effective Date of Merger, the separate existence of ATN Utah shall
cease and ATN Delaware, as the Surviving Corporation, (i) shall continue to
possess all of its assets, rights, powers and property as constituted
immediately prior to the Effective Date of Merger, shall be subject to all
actions previously taken by the ATN Utah Board of Directors and shall succeed,
without other transfer, to all of the assets, rights, powers and property of ATN
Utah in the manner of and as more fully set forth in Section 259 of the Delaware
General Corporation Law, and (ii) shall continue to be subject to all of its
debts, liabilities and obligations as constituted immediately prior to the
Effective Date of Merger and shall succeed, without other transfer, to all of
the debts, liabilities and obligations of ATN Utah in the same manner as if ATN
Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the Utah
Business Corporation Act.
II
MANNER OF CONVERSION OF STOCK
2.1 - ATN UTAH COMMON STOCK
Upon the Effective Date of Merger, each share of Common Stock, without par
value, of ATN Utah issued and outstanding immediately prior thereto shall, by
virtue of the Merger and without any action by the holder of such shares or any
other person, be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.01 par value, of ATN Delaware, the
Surviving Corporation.
2.2 - OPTIONS, WARRANTS, STOCK PURCHASE RIGHTS, AND OTHER CONVERTIBLE SECURITIES
Upon the Effective date of Merger, the Surviving Corporation shall assume and
continue the 1985 Incentive and Non-Qualified Stock Option Plan of ATN Utah. In
addition, each outstanding and unexercised option, warrant, and right to
purchase ATN Utah's Common Stock shall become an option, warrant, and right to
purchase the Surviving Corporations Common Stock on the basis of one share of
the Surviving Corporation's Common Stock for each share of ATN Utah's Common
Stock issuable pursuant to any such option, warrant, or stock purchase right, on
the same terms and conditions and at an exercise price per share equal to the
exercise price applicable to any such ATN Utah option, warrant, or right at the
Effective Date of Merger.
A number of shares of the Surviving Corporation's Common Stock shall be reserved
for issuance upon the exercise of options, warrants, and stock purchase rights
equal to the number of shares of ATN Utah Common Stock so reserved immediately
prior to the Effective Date of Merger.
2.3 - ATN DELAWARE COMMON STOCK
Upon the Effective Date of Merger, each share of Common Stock, $.01 par value,
of ATN Delaware issued and outstanding immediately prior thereto shall, by
virtue of the Merger and without any action by the holder of such shares or any
other person, be cancelled and returned to the status of authorized but unissued
shares.
2.4 - EXCHANGE OF CERTIFICATES
After the Effective Date of Merger, each holder of an outstanding certificate
representing shares of ATN Utah Common Stock may at such shareholder's option
surrender the same for cancellation to the American Stock Transfer Company, as
exchange agent (the "Exchange Agent"), and each such holder shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares of the Surviving Corporation's Common Stock into which the
surrendered shares were converted as herein provided. Until so surrendered, each
outstanding certificate theretofore representing shares of ATN Utah Common Stock
shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock into which such shares of ATN Utah Common
Stock were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation or
the Exchange Agent of any such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or the Exchange Agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
dividends and other distributions upon the shares of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of ATN Utah so converted and
given in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of ATN Delaware stock is to be issued in a name
other than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that the certificate so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of the issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of ATN Delaware that such tax has been paid or is not payable.
III
GENERAL
3.3 - COVENANTS OF ATN DELAWARE
ATN Delaware covenants and agrees that it will, on or before the Effective Date
of Merger:
a) Qualify to do business as a foreign corporation in the State of Utah and in
connection therewith establish a registered office and a registered agent as
required by the Utah Business Corporation Act.
b) File any and all documents with the tax authority of the State of Utah
necessary to the assumption by ATN Delaware of all the Utah state tax
liabilities of ATN Utah.
c) Take such other actions as may be required by the Utah Business Corporation
Act.
3.2 - ABANDONMENT
At any time before the Effective Date of Merger, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either ATN Utah or ATN Delaware or both, notwithstanding
the approval of this Agreement by the shareholders of ATN Utah or the
shareholders of ATN Delaware.
3.3 - AMENDMENT
The Boards of Directors of the Constituent Corporations may amend this Agreement
at any time prior to the filing of this Agreement (or a certificate in lieu
thereof) with the Secretary of State of the State of Delaware, provided that an
amendment made subsequent to the adoption of the agreement by the stockholders
of either Constituent Corporation 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 Constituent Corporation, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Corporation to be effected by the
merger or consolidation, or (3) alter or change any of the terms and condition
of this Agreement if such alteration or change would adversely affect the
holders of any class or series thereof of such Constituent Corporation.
3.4 - REGISTERED OFFICE
The registered office of the Surviving Corporation in the State of Delaware is
located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, and The Corporation Trust Company is the registered agent of the
Surviving Corporation at such address.
3.5 - AGREEMENT
Executed copies of this Agreement will be on file at the principal place of
business of the Surviving Corporation at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx, Xxxx
00000, and copies thereof will be furnished to any shareholder of each
Constituent Corporation upon request and without cost.
3.6 - GOVERNING LAW
This Agreement shall in all respects be construed, interpreted and enforced in
accordance with and governed by the laws of the State of Delaware, and, so far
as applicable, the merger provisions of the Utah Business Corporation Act.
3.7 - COUNTERPARTS
In order to facilitate the filing and recording of this Agreement, the same may
be executed in any number of counterparts, each of which shall be deemed to be
an original.
IN WITNESS WHEREOF, this Agreement, having first been approved by resolution of
the Boards of Directors of ATN Utah and ATN Delaware, is hereby executed on
behalf of each of such two corporations and attested by their respective
officers thereunto duly authorized.
AMERICAN TELEMEDIA NETWORK, INC. ATN, INC.,
a Delaware corporation A Utah corporation
By /s/ Xxxxx X Xxxxxxxxx By /s/ Xxxx X Xxxx
Xxxxx X Xxxxxxxxx, Xxxx X Xxxx
PRESIDENT CHAIRMAN OF THE BOARD OF DIRECTORS
ATTEST:
/s/ R Xxxxxx Xxxxxx
R Xxxxxx Xxxxxx
SECRETARY