Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-8 Form S-8 Registration Statement HTML 62K
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 59K
3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 51K
4: EX-4.3 Instrument Defining the Rights of Security Holders HTML 51K
5: EX-4.4 Instrument Defining the Rights of Security Holders HTML 14K
6: EX-4.5 Instrument Defining the Rights of Security Holders HTML 29K
7: EX-4.6 Instrument Defining the Rights of Security Holders HTML 15K
8: EX-4.7 Instrument Defining the Rights of Security Holders HTML 12K
9: EX-4.8 Instrument Defining the Rights of Security Holders HTML 14K
10: EX-4.9 Instrument Defining the Rights of Security Holders HTML 76K
11: EX-5.1 Opinion re: Legality HTML 15K
12: EX-23.1 Consent of Experts or Counsel HTML 8K
EX-4.2 — Instrument Defining the Rights of Security Holders
The
undersigned, duly authorized officers of their respective corporations, pursuant
to §
10-2A-143 of the Alabama Business Corporation Act and §5.04
of
the Texas Business Corporation Act, hereby execute the following Articles of
Merger on behalf of their respective corporations:
I.
Names of Corporations
The
names
of the corporations proposing to merge are Skylink America Incorporated, an
Alabama corporation ("Skylink")
and SKAI
Inc., a subsidiary of Skylink and a Texas corporation ("SKAI").
II.
Agreement of Merger
Skylink
shall be merged into SKAI, and SKAI shall be the surviving corporation, in
accordance with the provisions of the Agreement and Plan of Merger (the
"Agreement"), attached hereto as Exhibit "A" and by this reference incorporated
herein. The "Effective Date" of the Agreement shall be the date on which the
Secretary of State of Alabama and the Secretary of State of Texas issue a
Certificate of Merger evidencing the merger of Skylink into SKAI. As of
the Effective Date of the Agreement, the name of the surviving corporation
shall
be changed to Skylink America Incorporated.
III.
Approval of Agreement
A. On
September
28, 1989, the date on which the shareholders of Skylink approved the Agreement,
there were 4,048,78l shares of Skylink's common stock issued and outstanding
and
entitled to vote on the Agreement. Of those shares, 3,121,737 voted "FOR" and
2,459 voted "AGAINST" the Agreement.
B. On
September
28, 1989, the date on which the sole shareholder of SKAI approved the Agreement,
there were 100 shares of SKAI’s common stock issued and outstanding and entitled
to vote on the Agreement. Of those shares, 100 voted "FOR" and 0 voted "AGAINST"
the Agreement.
Before
me, the undersigned authority in and for said county and state, personally
appeared Edward R. McMurphy and R. Clark Sledge who being by me first duly
sworn, did depose and say that they are the President and Secretary,
respectively, of Skylink America Incorporated and that the foregoing
statements in this Articles of Merger are true, full and correct.
Before
me, the undersigned authority in and for said county and state, personally
appeared Edward R. McMurphy and R. Clark Sledge who being by me first duly
sworn, did depose and say that they are the President and Secretary,
respectively, of SKAI Inc. and that the foregoing statements in this
Articles of Merger are true, full and correct.
Subscribed
and sworn to before me on the 28th day of September, 1989.
IN
WITNESS WHEREOF, I hereunto subscribe my name and attach to the seal of my
office.
/s/Jane
S. Wagner
Notary
Public
[SEAL]
EXHIBIT
"A"
AGREEMENT
AND PLAN
OF
MERGER
AGREEMENT
AND PLAN OF MERGER dated as of August 25, 1989, by and between SKYLINK AMERICA
INCORPORATED, an Alabama corporation (herein called the "Alabama Company"),
and
SKAI INC., a Texas corporation duly (herein called the "Texas Company"), said
companies being herein sometimes referred to as the "Constituent Companies."
WITNESSETH:
WHEREAS,
the Alabama Company is a corporation duly organized and existing under the
laws
of the State of Alabama, having been organized thereunder on April 29, 1983.
The
Texas Company is a corporation duly organized and existing under the laws of
the
State of Texas, having been incorporated thereunder on August 23, 1989.
WHEREAS,
the authorized capital of the Alabama Company consists of 10,000,000 shares
of
Common Stock, par value $.01 per share, of which 4,211,230 shares are now issued
and outstanding. The authorized capitalization of the Texas Company consists
of
10,000,000 shares of Common Stock, par value $.01 per share, of which 100 shares
are now issued, outstanding and owned by the Alabama Company.
WHEREAS,
the Board of Directors of the Alabama Company and the Board of Directors of
the
Texas Company deem it to be for the benefit and advantage of each of the
companies and their respective stockholders that the companies merge under
and
pursuant to the provisions of Section 10-2A-146 of the Alabama Business
Corporation Act and Section 5.07 of the Texas Business Corporation Act, and
the
Board of Directors of each of the Constituent Companies, by resolution duly
adopted, has approved this Agreement and Plan of Merger (sometimes herein called
the "Agreement") and a majority of the Directors of each has duly authorized
the
execution of the same and each of the Boards of Directors has directed that
the
Agreement be submitted to a vote of the respective stockholders of the Alabama
Company and the Texas Company entitled to vote thereon (namely, all of the
stockholders of each) at stockholders meetings called separately for the
purpose, among others, of considering approval of the Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements
hereinafter set forth, the parties hereto agree that in accordance with the
provisions of Section 10-2A-146 of the Alabama Business Corporation Act and
Section 5.07 of the Texas Business Corporation Act, the Alabama Company shall
be
merged with and into the Texas Company, and that the terms and conditions of
such merger and the mode of carrying it into effect are, and shall be, as herein
set forth.
A-1
ARTICLE
I
Except
as
herein specifically set forth, the corporate existence of the Texas Company,
with all its purposes, powers and objects, shall continue in effect and
unimpaired by the merger, and the corporate identity and existence, with all
the
purposes, powers, and objects of the Alabama Company, shall be merged into
the
Texas Company and the Texas Company, as the company surviving the merger, shall
be fully vested therewith. The separate existence and corporate organization
of
the Alabama Company shall cease as soon as the merger shall become effective
as
herein provided, and thereupon the Alabama Company and the Texas Company shall
be a single company, to wit, the Texas Company (hereinafter sometimes referred
to as the "Surviving Company"). This Agreement shall continue in effect and
the
merger shall become effective only if the Agreement is adopted by the
stockholders of the Constituent Companies as provided in Article Xhereof.
Upon such adoption, that fact shall be certified upon the Agreement by the
Secretary or Assistant Secretary of each of the Constituent Companies, under
the
seal thereon. Thereupon, under Section 5.04 of the Texas Business Corporation
Act, Articles of Merger shall be filed in the office of the Secretary of State
of Texas, and under Section 10-2A-143 of the Alabama Business Corporation Act,
Articles of Merger shall be filed with the Secretary of State of Alabama. The
merger shall become effective on the date on which a Certificate of Merger
is
issued by the Secretary of State of Texas and the Secretary of State of
Alabama.
ARTICLE
II
Upon
the
effective date of the merger, the Articles of Incorporation of the Texas Company
shall be the Articles of Incorporation of the Surviving Company; except that
upon effectiveness of the merger, the name of the Surviving Company shall be
changed to "Skylink America Incorporated." Such Articles of Incorporation are
made a part of this Agreement with the same force and effect as if set forth
in
full.
ARTICLE
III
Upon
the
effective date of the merger, the Bylaws of the Texas Company shall be the
Bylaws of the Surviving Company until the same shall thereafter be altered,
amended, or repealed in accordance with the law, the Articles of Incorporation,
and such Bylaws.
ARTICLE
IV
On
the
effective date of the merger, the Surviving Company shall continue in existence
and, without further transfer, succeed to and possess all of the rights,
privileges, and purposes of each of the Constituent Companies; and all of the
property, real and personal, including subscriptions to shares, causes
of
action and every other asset of each of the Constituent Companies, shall vest
in
the Surviving Company without further act or deed; and the Surviving Company
shall be liable for all of the liabilities, obligations and penalties of each
of
the Constituent Companies. No liability or obligation due or to become due,
claim or demand for any cause existing against either Constituent Company,
or
any stockholder, officer, director or employee thereof, shall be released or
impaired by such merger. No action or proceeding, whether civil or criminal,
then pending by or against either Constituent Company or any stockholder,
officer, director or employee thereof shall abate or be discontinued by such
merger, but may be enforced, prosecuted, defended, settled or compromised as
if
such merger had not occurred and the Surviving Company may be substituted in
any
action or proceeding in place of either Constituent Company.
A-2
If
at any
time the Surviving Company shall consider or be advised that any further
assignments, conveyances or assurances in law are necessary or desirable to
vest, perfect or confirm of record in the Surviving Company the title to any
property or rights of the Constituent Companies, or otherwise to carry out
the
provisions hereof, the proper officers and directors of the Constituent
Companies, as of the effective date of the merger, shall execute and deliver
any
and all proper deeds, assignments and assurances in law, and do all things
necessary or proper to vest, perfect or confirm title to such property or rights
in the Surviving Company, and otherwise to carry out the provisions hereof.
ARTICLE
V
The
number
of shares of stock which the Surviving Company shall have authority to issue
shall be 10,000,000 shares of Common Stock, par value $.01 per share, and
1,000,000 shares of Preferred Stock, par value $.01 per share.
ARTICLE
VI
Upon
the
effective date of the merger, each issued and outstanding share of Common Stock
of the Alabama Company, $.01 par value, shall be and become converted into
one
fully paid and nonassessable share of Common Stock, $.01 par value, of the
Surviving Company. Outstanding certificates representing shares of Common Stock
of the Alabama Company shall thenceforth represent the same number of shares
of
Common Stock of the Surviving Company, and the holder thereof shall be entitled
to precisely the same rights he would enjoy if he held certificates issued
by
the Surviving Company. Upon the surrender of any such certificate to the
Surviving Company at the office of its transfer agent, the transferee or other
holder of the certificates surrendered shall receive in exchange therefor a
certificate or certificates of the Surviving Company. Upon the effective date
of
the merger, each outstanding option or right to purchase or otherwise acquire
shares of Common Stock of the
Upon
the
consummation of the merger, the shares of Common Stock, par value $.01 per
share, of the Texas Company which shall be outstanding immediately prior to
the
effective date of the merger, shall be cancelled and retired.
ARTICLE
VIII
The
officers and directors of the Alabama Company immediately prior to the effective
date of the merger shall serve as the officers and directors of the Surviving
Company, until their successors shall have been elected and shall qualify or
as
otherwise provided in the Bylaws of the Surviving Company.
If,
on or
after the effective date of the merger, a vacancy shall exist in the Board
of
Directors of the Surviving Company, or in any of the offices specified above,
such vacancy may be filled in the manner provided in the Bylaws of the Surviving
Company.
ARTICLE
IX
All
corporate acts, plans, policies, approvals and authorizations of the Alabama
Company, its stockholders, Board of Directors, committees elected or appointed
by the Board of Directors, officers and agents, which were valid and effective
immediately prior to the effective date of the merger, shall be taken for all
purposes as the acts, plans, policies, approvals and authorizations of the
Surviving Company and shall be as effective and binding thereon as they were
on
the Alabama Company. Without limiting the foregoing, all stock option, stock
purchase and profit sharing plans of the Alabama Company, all as amended and
in
effect immediately prior to the merger becoming effective, and any and all
outstanding options and rights thereunder, shall be continued by the Surviving
Company, which shall be substituted for the Alabama Company. Such merger shall
not, in itself, effect any other change in such plans, options or rights. The
employees of the Alabama Company shall become the employees of the Surviving
Company and continue to be entitled to the same rights and benefits they enjoyed
as employees of the Alabama Company. It is intended that the transaction
described herein qualifies as a reorganization within the definition of Clause
(F)of
Section 368(a)(1)of
the
Internal Revenue Code of 1986, as amended.
This
Agreement shall be submitted to the stockholders of each of the Constituent
Companies as provided by the applicable laws of the States of Alabama and Texas.
There shall be required for the adoption of this Agreement by (1) the Alabama
Company, the affirmative vote of the holders of at least two-thirds of the
capital stock outstanding; and by (2) the Texas Company, the affirmative vote
of
the holders of at least a majority of the capital stock outstanding.
ARTICLE
XI
The
Surviving Company hereby agrees that it may be served with process in the State
of Alabama in any proceeding for enforcement of any obligation of the Alabama
Company as well as for enforcement of any obligation resulting from the merger,
including any proceeding for the enforcement of the rights of a dissenting
stockholder of the Alabama Company against the Surviving Company, and hereby
irrevocably appoints the Secretary of State of the State of Alabama as its
agent
to accept service of process in any such suit or other proceeding. The address
to which a copy of such process shall be mailed by the Secretary of State of
the
State of Alabama is Skylink America Incorporated, 2415 West Northwest Highway,
Suite 103, Dallas, Texas75220, Attention: Edward R. McMurphy,
President.
ARTICLE
XII
The
Texas
Company shall promptly pay to the dissenting stockholders of the Alabama Company
the amount, if any,
to
which they shall be entitled under the provisions of the Alabama Business
Corporation Act with respect to the rights of dissenting stockholders, provided
the Agreement is approved by the stockholders of the Constituent Companies
and
further provided the Agreement and merger are not terminated and abandoned
prior
to the merger becoming effective.
ARTICLE
XIII
This
Agreement and the merger may be terminated and abandoned by resolution of the
Board of Directors of the Alabama Company prior to the merger becoming effective
and whether
before
or after approval by the shareholders of the Alabama Company. In the event
of
the termination and the abandonment of this Agreement and the merger pursuant
to
the foregoing provision of this ARTICLE XIII, this Agreement shall become void
and of no further effect without any liability on the part of either of the
Constituent Companies or its stockholders or the directors or officers in
respect thereto.
This
Agreement
and Plan
of Merger may be executed in counterparts, each of which when so executed shall
be deemed to be an original, and such counterparts shall together constitute
but
one and the same instrument.
IN
WITNESS WHEREOF, each party to this Agreement and Plan of Merger, pursuant
to
authority duly given by its respective Board of Directors, has caused these
presents to be executed on its behalf by its President and Chief Executive
Officer, and its corporate seal to be hereunto affixed and attested to by its
Secretary as of the day and year first hereinabove written.
