EXHIBIT 2.2
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of June 16, 2005, is entered into between ALPHA SPACECOM, INC., a
Colorado corporation (the "Company"), and ALPHA SPACECOM, INC., a Nevada
corporation and a wholly owned subsidiary of the Company ("ASC-NV"). The Company
and ASC-NV may hereinafter also be referred to individually as a "party" and
collectively as the "parties."
RECITALS
WHEREAS, the respective board of directors of each of the Company and ASC-NV
deems it advisable, upon the terms and subject to the conditions herein stated,
that the Company be merged with and into ASC-NV, and that ASC-NV be the
surviving corporation (the "Reincorporation Merger"); and
WHEREAS, the Company has submitted this Agreement for approval to the holders of
shares of Common Stock of the Company ("Colorado Common Stock").
NOW, THEREFORE, in consideration of the premises and of the agreements of the
parties hereto contained herein, the parties agree as follows:
ARTICLE I
THE REINCORPORATION MERGER; EFFECTIVE TIME
Section 1.1. The Reincorporation Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.2), the Company shall be merged with and into ASC-NV whereupon the
separate existence of the Company shall cease. ASC-NV shall be the surviving
corporation (sometimes hereinafter referred to as the "Surviving Corporation")
in the Reincorporation Merger and shall continue to be governed by the laws of
the State of Nevada. The Reincorporation Merger shall have the effects specified
in the Revised Statutes of the State of Nevada, as amended (the "NRS") and in
the Colorado Business Corporation Act, as amended (the "CBCA") and the Surviving
Corporation shall succeed, without other transfer, to all of the assets and
property (whether real, personal or mixed), rights, privileges, franchises,
immunities and powers of the Company, and shall assume and be subject to all of
the duties, liabilities, obligations and restrictions of every kind and
description of the Company, including, without limitation, all outstanding
indebtedness of the Company.
Section 1.2. Effective Time. Provided that the condition set forth in Section
5.1 has been fulfilled or waived in accordance with this Agreement and that this
Agreement has not been terminated or abandoned pursuant to Section 6.1, on the
date of the closing of the Reincorporation Merger, the Company and ASC-NV shall
cause Articles of Merger
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to be executed and filed with the Secretary of State of Colorado (the "Colorado
Articles of Merger") and Articles of Merger to be executed and filed with the
Secretary of State of Nevada (the "Nevada Articles of Merger"). The
Reincorporation Merger shall become effective upon the date and time specified
in the Colorado Articles of Merger and the Nevada Articles of Merger (the
"Effective Time").
ARTICLE II
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
Section 2.1. The Articles of Incorporation. The Articles of Incorporation of
ASC-NV in effect at the Effective Time shall be the Articles of Incorporation of
the Surviving Corporation, until amended in accordance with the provisions
provided therein or applicable law.
Section 2.2. The Bylaws. The bylaws of ASC-NV in effect at the Effective Time
shall be the bylaws of the Surviving Corporation, until amended in accordance
with the provisions provided therein or applicable law.
ARTICLE III
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION
Section 3.1. Officers. The officers of the Company at the Effective Time shall,
from and after the Effective Time, be the officers of the Surviving Corporation,
until their successors have been duly elected or appointed and qualified or
until their earlier death, resignation or removal.
Section 3.2. Directors. The directors of the board of directors of the Company
at the Effective Time shall, from and after the Effective Time, be the directors
of the Surviving Corporation, until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal.
ARTICLE IV
EFFECT OF MERGER ON CAPITAL STOCK
Section 4.1. Effect of Merger on Capital Stock. At the Effective Time, as a
result of the Reincorporation Merger and without any action on the part of the
Company, ASC-NV or the shareholders of the Company:
(a) Each share of Colorado Common Stock, other than shares ("Dissenting
Shares") that are owned by shareholders ("Dissenting Shareholders") exercising
dissenters' rights pursuant to Article 113 of the CBCA, issued and outstanding
immediately prior to the Effective Time shall be converted (without the
surrender of stock or any other action) into one fully paid and non-assessable
share of Common Stock,
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par value $0.001, of ASC-NV ("ASC-NV Common Stock"), with the same rights,
powers and privileges as the shares so converted and all shares of Colorado
Common Stock shall be cancelled and retired and shall cease to exist.
(b) Each option, warrant, purchase right, unit or other security of the
Company issued and outstanding immediately prior to the Effective Time shall be
converted into and shall be an identical security of ASC-NV.
Section 4.2. Certificates. At and after the Effective Time, all of the
outstanding Certificates which immediately prior thereto represented shares of
Colorado Common Stock (other than Dissenting Shares) or options, warrants,
purchase rights, units or other securities of the Company shall be deemed for
all purposes to evidence ownership of and to represent the shares of the
respective Nevada Common Stock, or options, warrants, purchase rights, units or
other securities of ASC-NV, as the case may be, into which the shares of
Colorado Common Stock or options, warrants, purchase rights, units or other
securities of the Company represented by such Certificates have been converted
as herein provided and shall be so registered on the books and records of the
Surviving Corporation or its transfer agent. The registered owner of any such
outstanding Certificates shall, until such Certificates shall have been
surrendered for transfer or otherwise accounted for to the Surviving Corporation
or its transfer agent, 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 Nevada Common Stock or options, warrants, purchase rights,
units or other securities of ASC-NV, as the case may be, evidenced by such
outstanding Certificates, as above provided.
Section 4.3 Dissenters' Rights. No Dissenting Shareholder shall be entitled to
shares of Nevada Common Stock under this Article IV unless and until the holder
thereof shall have failed to perfect or shall have effectively withdrawn or lost
such holder's right to dissent from the Reincorporation Merger under the CBCA,
and any Dissenting Shareholder shall be entitled to receive only the payment
provided by Article 113 of the CBCA with respect to Dissenting Shares owned by
such Dissenting Shareholder. If any person or entity who otherwise would be
deemed a Dissenting Shareholder shall have failed to properly perfect or shall
have effectively withdrawn or lost the right to dissent with respect to any
shares which would be Dissenting Shares but for that failure to perfect or
withdrawal or loss of the right to dissent, such Dissenting Shares shall
thereupon be treated as though such Dissenting Shares had been converted into
shares of Nevada Common Stock pursuant to Section 4.1 hereof.
ARTICLE V
CONDITION PRECEDENT
Section 5.1. Condition to Each Party's Obligation to Effect the Reincorporation
Merger. The respective obligation of each party hereto to effect the
Reincorporation Merger is subject to receipt prior to the Effective Time of the
requisite approval of this Agreement and the transactions contemplated hereby by
a majority of the holders of
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Colorado Common Stock pursuant to the CBCA and the Articles of Incorporation of
the Company.
ARTICLE VI
TERMINATION
Section 6.1. Termination. This Agreement may be terminated, and the
Reincorporation Merger may be abandoned, at any time prior to the Effective
Time, whether before or after approval of this Agreement by the shareholders of
the Company, if the board of directors of the Company determines for any reason,
in its sole judgment and discretion, that the consummation of the
Reincorporation Merger would be inadvisable or not in the best interests of the
Company and its shareholders. In the event of the termination and abandonment of
this Agreement, this Agreement shall become null and void and have no effect,
without any liability on the part of either the Company or ASC-NV, or any of
their respective shareholders, directors or officers.
ARTICLE VII
MISCELLANEOUS AND GENERAL
Section 7.1. Modification or Amendment. Subject to the provisions of applicable
law, at any time prior to the Effective Time, the parties hereto may modify or
amend this Agreement; provided, however, that an amendment made subsequent to
the approval of this Agreement by the holders of Colorado Common Stock shall not
(i) alter or change the amount or kind of shares and/or rights to be received in
exchange for or on conversion of all or any of the shares or any class or series
thereof of such corporation, (ii) alter or change any provision of the Articles
of incorporation of the Surviving Corporation to be effected by the
Reincorporation Merger, or (iii) alter or change any of the terms or conditions
of this Agreement if such alteration or change would adversely affect the
holders of any class or series of capital stock of any of the parties hereto.
Section 7.2. Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
Section 7.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEVADA WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
Section 7.4. Entire Agreement. This Agreement constitutes the entire agreement
and supercedes all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof.
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Section 7.5. No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
Section 7.6. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is determined by any court or other authority of competent
jurisdiction to be invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision, and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section 7.7. Headings. The headings therein are for convenience of reference
only, do not constitute part of this Agreement and shall not be deemed to limit
or otherwise affect any of the provisions hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly authorized officers of the parties hereto as of the date first written
above.
ALPHA SPACECOM, INC.,
a Colorado corporation
By: s/ Xxxxxxx Xx
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Name: Xxxxxxx Xx
Title: CEO & President
ALPHA SPACECOM, INC.,
a Nevada corporation
By: s/Xxxxxxx Xx
Name: Xxxxxxx Xx
Title: CEO & President
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