PLAN AND AGREEMENT OF MERGER
OF
ATSI COMMUNICATIONS, INC.
(a Delaware corporation)
AND
ATSI MERGER CORPORATION
(a Nevada corporation)
PLAN AND AGREEMENT OF MERGER entered into on March 24, 2004, by ATSI
Communications, Inc., a Delaware corporation ("ATSI"), and ATSI Merger
Corporation, a Nevada corporation ("Merger Corporation").
WHEREAS, ATSI is a business corporation of the State of Delaware; and
WHEREAS, Merger Corporation is a business corporation of the State of
Nevada; and
WHEREAS, the Delaware General Corporation Law permits a merger of a
business corporation of the State of Delaware with and into a business
corporation of another jurisdiction; and
WHEREAS, the Nevada Revised Statutes permit the merger of a business
corporation of another jurisdiction with and into a business corporation of the
State of Nevada; and
WHEREAS, ATSI and Merger Corporation and the respective Boards of Directors
thereof declare it advisable and to the advantage, welfare, and best interests
of said corporations and their respective stockholders to merge ATSI with and
into Merger Corporation pursuant to the provisions of the Delaware General
Corporation Law and pursuant to the provisions of the Nevada Revised Statutes
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly entered into by ATSI and
approved by a resolution adopted by its Board of Directors and being thereunto
duly entered into by Merger Corporation and approved by a resolution adopted by
its Board of Directors, the Merger and the terms and conditions thereof and the
mode of carrying the same into effect, are hereby determined and agreed upon as
hereinafter in this Plan and Agreement of Merger set forth.
1. ATSI shall, pursuant to the provisions of the Delaware General
Corporation Law and to the provisions of the Nevada Revised Statutes, be merged
with and into Merger Corporation, which shall be the surviving corporation from
and after the effective time of the Merger and which is sometimes hereinafter
referred to as the "surviving corporation," and which shall continue to exist as
said surviving corporation under its present name pursuant to the provisions of
the Nevada Revised Statutes. The separate existence of ATSI, which is sometimes
hereinafter referred to as the
"terminating corporation," shall cease at said effective time in accordance with
the provisions of the Delaware General Corporation Law.
2. The name of the surviving corporation shall be changed to ATSI
Communications, Inc. The surviving corporation shall designate a series of
preferred stock (the "Series H Convertible Preferred Stock") having preferences,
limitations, and relative rights as set forth in Schedule A attached hereto. As
amended, the present Articles of Incorporation of the surviving corporation will
be the Articles of Incorporation of the surviving corporation and will continue
in full force and effect until changed, altered, or amended as therein provided
and in the manner prescribed by the provisions of the Nevada Revised Statutes.
3. The present bylaws of the surviving corporation will be the bylaws of
said surviving corporation and will continue in full force and effect until
changed, altered, or amended as therein provided and in the manner prescribed by
the provisions of the Nevada Revised Statutes.
4. The directors and officers in office of the surviving corporation at
the effective time of the Merger shall be the members of the Board of Directors
and the officers of the surviving corporation, all of whom shall hold their
directorships and offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the bylaws of the surviving corporation.
5. Each issued share of the common stock of the terminating corporation
shall, from and after the effective time of the Merger, be converted into one
one-hundredth (.01) share of the common stock of the surviving corporation and
one-tenth (.1) share of the Series H Convertible Preferred Stock of the
surviving corporation. The surviving corporation shall not issue any
certificate or script representing a fractional share of common stock or
preferred stock. Any fractional shares that would otherwise be issuable will be
rounded up to the next full share. Pursuant to the laws of the State of Nevada,
each share of the terminating corporation shall be tendered to the surviving
corporation for exchange into shares of the surviving corporation within 60 days
after the effective time of the Merger. Upon receipt of such shares of the
terminating corporation, the surviving corporation shall issue a certificate for
the whole shares of the common stock and a certificate for the whole shares of
the preferred stock of the surviving corporation that are issuable in exchange
for the shares of the terminating corporation. The shares of the surviving
corporation that are outstanding immediately prior to the effective time of the
Merger shall be cancelled and deemed not outstanding as of the effective time of
the Merger.
6. Each issued share of the preferred stock of the terminating
corporation shall, from and after the effective time of the Merger, be converted
into one share of the preferred stock of the surviving corporation, having
substantially similar powers, designations, preferences and relative,
participating, optional and other rights as the preferred shares of the
terminating corporation. Pursuant to the laws of the State of Nevada, each
share of the preferred stock of the terminating corporation shall be tendered to
the surviving corporation for exchange into shares of the preferred stock of the
surviving corporation within 60 days after the effective time of the Merger.
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7. The surviving corporation may xxx in any court with jurisdiction to
cause any stockholder of the terminating corporation to tender certificates
representing shares owned by such stockholder to be tendered to the surviving
corporation for exchange. Stockholders of the terminating corporation shall
have no rights to notices, distributions or voting with respect to the surviving
corporation unless the certificates representing shares of the terminating
corporation are tendered to the surviving corporation for exchange.
8. Except to the extent otherwise provided in the terms of outstanding
options, warrants or other rights to purchase, or securities convertible into or
exchangeable for common stock of the terminating corporation (other than shares
of the preferred stock of the terminating corporation), each outstanding option,
warrant or other right to purchase, and each outstanding security convertible
into or exchangeable for common stock shall be converted into an option, warrant
or other right to purchase, or security convertible into or exchangeable for
common stock of the surviving corporation on the basis of one one-hundredth
(.01) share of the common stock of the surviving corporation and one-tenth (.1)
share of the Series H Convertible Preferred Stock of the surviving corporation
for each share of common stock of the terminating corporation. The exercise
price or conversion ratio set forth in such option, warrant or other right to
purchase, or security convertible into or exchangeable for common stock of the
surviving corporation shall be ratably adjusted so that the total exercise or
conversion price shall be the same as under the option, warrant, or other right
to purchase, or security convertible into or exchangeable for common stock of
the terminating corporation.
9. In the event that this Plan and Agreement of Merger shall have been
fully approved and adopted upon behalf of the terminating corporation in
accordance with the provisions of the Delaware General Corporation Law and upon
behalf of the surviving corporation in accordance with the provisions of the
Nevada Revised Statutes, the said corporations agree that they will cause to be
executed and filed and recorded any document or documents prescribed by the laws
of the State of Delaware and by the laws of the State of Nevada, and that they
will cause to be performed all necessary acts within the State of Delaware and
the State of Nevada and elsewhere to effectuate the Merger herein provided for.
10. The Board of Directors and the proper officers of the terminating
corporation and of the surviving corporation are hereby authorized, empowered,
and directed to do any and all acts and things, and to make, execute, deliver,
file, and record any and all instruments, papers, and documents which shall be
or become necessary, proper, or convenient to carry out or put into effect any
of the provisions of this Plan and Agreement of Merger or of the Merger herein
provided for.
11. The effective time of this Plan and Agreement of Merger, and the time
at which the Merger herein agreed shall become effective in the State of
Delaware and the State of Nevada, shall be on the last to occur of:
(a) the approval of this Plan and Agreement of Merger by the stockholders
of the terminating corporation in accordance with the Delaware General
Corporation Law;
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or
(b) the date this Plan and Agreement of Merger, or Articles of Merger
meeting the requirements of the Nevada Revised Statutes, is filed with
the Secretary of State of the State of Nevada; or
(c) May 24, 2004.
12. Notwithstanding the full approval and adoption of this Plan and
Agreement of Merger, the said Plan and Agreement of Merger may be terminated at
any time prior to the filing thereof with the Secretary of State of the State of
Nevada.
13. Notwithstanding the full approval and adoption of this Plan and
Agreement of Merger, the said Plan and Agreement of Merger may be amended at any
time and from time to time prior to the filing thereof with the Secretary of
State of the State of Delaware and at any time and from time to time prior to
the filing of any requisite Merger documents with the Secretary of State of the
State of Nevada except that, without the approval of the stockholders of ATSI
and the stockholders of Merger Corporation, no such amendment may (a) change the
rate of exchange for any shares of ATSI or the types or amounts of consideration
that will be distributed to the holders of the shares of stock of ATSI; (b)
change any term of the Articles of Incorporation of the surviving corporation;
or (c) adversely affect any of the rights of the stockholders of ATSI or Merger
Corporation.
IN WITNESS WHEREOF, this Plan and Agreement of Merger is hereby executed
upon behalf of each of the constituent corporation parties thereto.
Dated: March 24, 2004 ATSI COMMUNICATIONS, INC.
/s/ Xxxxxx X. Xxxxx
By:
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
ATSI MERGER CORPORATION
/s/ Xxxxxx X. Xxxxx
By:
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
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