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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
NQL INC.
(A DELAWARE CORPORATION)
AND
ALPHA MICROSYSTEMS
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 18, 2000 (this
"Agreement") is between NQL Inc., a Delaware corporation ("NQL"), and Alpha
Microsystems, a California corporation ("AMS"). NQL and AMS are sometimes
referred to herein as the "Constituent Corporations."
R E C I T A L S:
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A. NQL is a corporation duly organized and existing under the laws
of the State of Delaware and has a total authorized capital stock of 45,000,000
shares. The number of shares of Preferred Stock authorized to be issued is
5,000,000, par value $.001, of which 2,500 shares have been designated as Class
A1 Cumulative, Redeemable and Exchangeable Preferred Stock, 5,500 shares have
been designated as Class A2 Cumulative, Redeemable and Exchangeable Preferred
Stock, 7,000 shares have been designated as Class B1 Cumulative, Redeemable and
Exchangeable Preferred Stock, 5,000 shares have been designated as Class C1
Cumulative, Redeemable and Exchangeable Preferred Stock, 17,500 shares have been
designated as Class D Cumulative, Redeemable and Exchangeable Preferred Stock,
12,000 shares have been designated as Class E Cumulative, Redeemable and
Exchangeable Preferred Stock and 100 shares have been designated as Voting
Preferred Stock. No shares of Preferred Stock were outstanding as of the date
hereof and prior to giving effect to the transactions contemplated hereby. The
number of shares of Common Stock authorized to be issued is 40,000,000, par
value $.001. As of the date hereof, and before giving effect to the transactions
contemplated hereby, 1,000 shares of Common Stock were issued and outstanding,
all of which were held by AMS.
B. AMS is a corporation duly organized and existing under the laws
of the State of California and has an authorized capital stock of 45,000,000
shares. The number of shares of Preferred Stock authorized to be issued is
5,000,000, no par value, of which 2,500 shares have been designated as Class A1
Cumulative, Redeemable and Exchangeable Preferred Stock, 5,500 shares have been
designated as Class A2 Cumulative, Redeemable and Exchangeable Preferred Stock,
7,000 shares have been designated as Class B1 Cumulative, Redeemable and
Exchangeable Preferred Stock, 5,000 shares have been designated as Class C1
Cumulative, Redeemable and Exchangeable Preferred Stock, 17,500 shares have been
designated as Class D Cumulative, Redeemable and Exchangeable Preferred Stock,
12,000 shares have been designated as Class E Cumulative, Redeemable and
Exchangeable Preferred Stock and 100 shares have been designated as Voting
Preferred Stock. Of these designated shares of Preferred Stock, 2,500 shares of
Class A1 Cumulative, Redeemable and Exchangeable Preferred Stock, 5,500 shares
of Class A2 Cumulative, Redeemable and Exchangeable Preferred Stock, 7,000
shares of Class B1 Cumulative, Redeemable and Exchangeable Preferred Stock,
5,000 shares of Class C1 Cumulative, Redeemable and Exchangeable Preferred
Stock, 391 shares of Class E Cumulative, Redeemable and Exchangeable Preferred
Stock and one share of Voting Preferred Stock are presently outstanding. The
number of shares of Common Stock authorized to be issued is 40,000,000, no par
value, of which 14,143,129 are presently outstanding.
C. The Board of Directors of AMS has determined that, for the
purpose of effecting the reincorporation of AMS in the State of Delaware, it is
advisable and in the best interests of AMS that AMS merge with and into NQL upon
the terms and conditions herein provided.
D. The respective Boards of Directors of NQL and AMS have approved
this Agreement and have directed that this Agreement be submitted to a vote of
their respective stockholders and executed by the undersigned officers.
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E. NQL is a wholly-owned subsidiary of AMS.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, NQL and AMS 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 General Corporation Law of the State of
California, AMS shall be merged with and into NQL (the "Merger"), the separate
existence of AMS shall cease and NQL shall be, and is herein sometimes referred
to as, the "Surviving Corporation," and the name of the Surviving Corporation
shall be NQL Inc., a Delaware corporation.
1.2 FILING AND EFFECTIVENESS. The Merger shall not become effective
until the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the stockholders of AMS and the sole stockholder of NQL in
accordance with the requirements of the Delaware General Corporation Law
and the General Corporation Law of the State of California;
(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 meeting the requirements of the Delaware
General Corporation Law shall have been filed with the Secretary of
State of the State of Delaware; and
(d) An executed counterpart of this Agreement, a Certificate
of Merger or any other document filed with the Secretary of State of the
State of Delaware pursuant to section (c) above, shall have been filed
with the Secretary of State of the State of California.
The date and time when the Merger shall become effective as aforesaid,
is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of AMS shall cease and NQL, 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 the Merger, (ii) shall be subject to all actions previously
taken by its and AMS's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of AMS
in the manner more fully set forth in Section 259 of the General
Corporation Law of the State of Delaware, (iv) shall continue to be
subject to all of the debts, liabilities and obligations of NQL as
constituted immediately prior to the Effective Date of the Merger, and
(v) shall succeed, without other transfer, to all of the debts,
liabilities and obligations of AMS in the same manner as if NQL had
itself incurred them, all as more fully provided under the applicable
provisions of the General Corporation Law of the State of Delaware and
the General Corporation Law of the State of California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
NQL as in effect immediately prior to the Effective Date of the 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.
2.2 BYLAWS. The Bylaws of NQL as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
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2.3 DIRECTORS AND OFFICERS. The directors and officers of NQL
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 AMS COMMON SHARES AND PREFERRED SHARES. Upon the Effective Date
of the Merger, (a) each share of AMS Common Stock, no par value, issued and
outstanding immediately prior thereto shall by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such share or any
other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Common Stock, par value $.001 per share, of the Surviving
Corporation, (b) each share of AMS Class A1 Cumulative, Redeemable and
Exchangeable Preferred Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Class A1 Cumulative, Redeemable and Exchangeable Preferred Stock of the
Surviving Corporation, (c) each share of AMS Class A2 Cumulative, Redeemable and
Exchangeable Preferred Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Class A2 Cumulative, Redeemable and Exchangeable Preferred Stock of the
Surviving Corporation, (d) each share of AMS Class B1 Cumulative, Redeemable and
Exchangeable Preferred Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Class B1 Cumulative, Redeemable and Exchangeable Preferred Stock of the
Surviving Corporation, (e) each share of AMS Class C1 Cumulative, Redeemable and
Exchangeable Preferred Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Class C1 Cumulative, Redeemable and Exchangeable Preferred Stock of the
Surviving Corporation, (f) each share of AMS Class D Cumulative, Redeemable and
Exchangeable Preferred Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Class D Cumulative, Redeemable and Exchangeable Preferred Stock of the Surviving
Corporation, (g) each share of AMS Class E Cumulative, Redeemable and
Exchangeable Preferred Stock, no par value, issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Class E Cumulative, Redeemable and Exchangeable Preferred Stock of the Surviving
Corporation, and (h) each share of AMS Voting Preferred Stock, no par value,
issued and outstanding immediately prior thereto shall by virtue of the Merger
and without any action by the Constituent Corporations, the holder of such share
or any other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Voting Preferred Stock of the Surviving Corporation.
3.2 AMS OPTIONS AND STOCK PURCHASE RIGHTS. Upon the Effective Date of
the Merger, the Surviving Corporation shall assume and continue the stock option
plans (including the 1993 Employee Stock Option Plan, the Employee Stock
Purchase Plan, and the 1998 Stock Option and Award Plan) and all other employee
benefit plans of AMS. Each outstanding and unexercised option, warrant or other
right to purchase AMS Common Stock shall become an option, warrant or right to
purchase the Surviving Corporation's Common Stock on the basis of one (1) share
of the Surviving Corporation's Common Stock for each share of AMS 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 per share applicable to any such AMS option, warrant or stock
purchase right at the Effective Date of the Merger. There are no options or
purchase rights for Preferred Stock of AMS.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options and stock purchase rights
equal to the number of shares of AMS Common Stock so reserved immediately prior
to the Effective Date of the Merger.
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3.3 NQL COMMON STOCK. Upon the Effective Date of the Merger, each
share of Common Stock, par value $.001 per share, of NQL issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by NQL, the holder of such shares or any other person, be canceled and returned
to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of AMS Common
Stock and AMS Preferred Stock may be asked to surrender the same for
cancellation to an exchange agent, whose name will be delivered to such holders
prior to any requested exchange (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 or
applicable class of Preferred Stock, as the case may be, into which the
surrendered shares were converted as herein provided. Until so surrendered, each
outstanding certificate theretofore representing shares of AMS Common Stock or
AMS Preferred Stock, as the case may be, shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's Common Stock or
Preferred Stock, as the case may be, into which shares of AMS Common Stock and
AMS Preferred 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 Common Stock and
Preferred Stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock and Preferred 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
AMS so converted and given in exchange therefore, unless otherwise determined by
the Board of Directors of the Surviving Corporation in compliance with
applicable laws, or other such additional legends as agreed upon by the holder
and the Surviving Corporation.
If any certificate for shares of NQL 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 comply with applicable
securities laws and that the person requesting such transfer pay to the Exchange
Agent any transfer or other taxes payable by reason of 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 NQL that such tax
has been paid or is not payable.
IV. GENERAL
4.1 COVENANTS OF NQL. NQL covenants and agrees that it will, on or
before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the
State of California.
4.1.2 File any and all documents with the California Franchise
Tax Board necessary for the assumption by NQL of all of the franchise
tax liabilities of AMS.
4.1.3 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
NQL or by its successors or assigns, there shall be executed and delivered on
behalf of AMS such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other actions as shall be appropriate
or necessary in order to vest or perfect in or conform of record or otherwise by
NQL the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of AMS and otherwise to
carry out the
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purposes of this Agreement, and the officers and directors of NQL are fully
authorized in the name and on behalf of AMS or otherwise to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either AMS or of NQL, or of both,
notwithstanding the approval of this Agreement by the shareholders of AMS.
4.4 AMENDMENT. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretary of State of the
State of Delaware, provided that an amendment made subsequent to the adoption of
this Agreement by the stockholder or shareholders 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 (3)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock or any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is 9 East Loockerman Street, Dover,
Delaware 19901. The name of its registered agent at such address is National
Registered Agents, Inc.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at 2722 South
Fairview Street, Santa Ana, CA 92704, and copies thereof will be furnished to
any stockholder or shareholder of either Constituent Corporation, upon request
and without cost.
4.7 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
General Corporation Law of the State of California.
4.8 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 and all of which together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Boards of Directors of NQL Inc., a Delaware corporation, and
Alpha Microsystems, a California corporation, is hereby executed on behalf of
each of such two corporations and attested by their respective officers
thereunto duly authorized.
NQL INC.,
a Delaware corporation
By: /s/ DOUGLAS J. TULLIO
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Douglas J. Tullio
President and Chief Executive Officer
ATTEST:
/s/ ROBERT O. RIISKA
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Robert O. Riiska
Secretary
ALPHA MICROSYSTEMS,
a California corporation
By: /s/ DOUGLAS J. TULLIO
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Douglas J. Tullio
President and Chief Executive Officer
ATTEST:
/s/ ROBERT O. RIISKA
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Robert O. Riiska
Secretary
[COUNTERPART SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER]
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