UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
FILED BY THE REGISTRANT [X]
FILED BY PARTY OTHER THAN THE REGISTRANT [ ]
CHECK THE APPROPRIATE BOX:
[ ] Preliminary Proxy Statement
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14a-6(e)(2))
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240.14a-12
ATNG, INC.
(Name of Registrant as Specified In Its Charter)
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ATNG, INC.
1549 LEROY STREET, SUITE D-200
FENTON, MICHIGAN 48430
PROXY STATEMENT
AS AT AUGUST 8, 2003
ATNG, INC.
1549 LEROY STREET, SUITE D-200
FENTON, MICHIGAN 48430
August 8, 2003
To Our Shareholders:
You are cordially invited to attend a special meeting of the
shareholders of ATNG, Inc. to be held at 1549 Leroy Street, Suite D-200, Fenton,
Michigan 48430 on September 6, 2003 at 9:00 a.m., Fenton, Michigan time.
Change of Domicile. The board of directors will submit a proposal to
change the state of incorporation of ATNG, Inc. from Texas to Nevada. If
approved by at least two-thirds of the votes cast by holders of our common stock
represented in person or by proxy at the meeting, the change of domicile will
result in a change in our jurisdiction of incorporation from the State of Texas
to the State of Nevada and will also result in the adoption of new articles of
incorporation and bylaws for ATNG, which will govern us under Nevada law. If
approved by the shareholders and subject to requisite regulatory approval, it is
anticipated that the change of domicile will become effective on or about
September 6, 2003, or as soon as practicable after the meeting.
The change of domicile is intended, among other things, to enable us to
take advantage of a more favorable tax structure in Nevada and the requirement
in Nevada for a majority vote of shareholders on important shareholder actions
instead of the two-thirds required by Texas.
Our board of directors has reserved the right to terminate or abandon
the change of domicile at any time prior to its effectiveness, notwithstanding
shareholder approval, if the board determines for any reason that the
consummation of the change of domicile would be inadvisable or not in the best
interests of ATNG or our shareholders.
For a summary of the principal income tax consequences of the change of
domicile to United States shareholders and ATNG, see "Federal Income Tax
Considerations" contained in the accompanying proxy statement.
If the change of domicile is completed, our shareholders will be
required to surrender their current certificates representing common stock in
exchange for certificates representing the appropriate number of shares of ATNG
as a Nevada corporation. Appropriate transmittal forms will be sent to the
shareholders for these purposes.
The proxy statement provides a detailed description of the change of
domicile and other information to assist you in considering the matters on which
to be voted. We urge you to review this information carefully and, if you
require assistance, to consult with your financial, tax or other professional
advisers.
For the reasons set forth in the proxy statement, your board of
directors unanimously believes that the proposed change of domicile is in the
best interests of ATNG and all of its shareholders. We, therefore, strongly urge
you to vote FOR the change of domicile.
Whether or not you plan to attend the meeting, we ask that you indicate
the manner in which you wish your shares to be voted and sign and return your
proxy as promptly as possible in the enclosed envelope so that your vote may be
recorded. You may vote your shares in person if you attend the meeting, even if
you send in your proxy.
We appreciate your continued interest in ATNG, Inc.
Very truly yours,
/s/ Robert C. Simpson, Ph. D.
Robert C. Simpson, Ph. D.
President
ATNG, INC.
1549 LEROY STREET, SUITE D-200
FENTON, MICHIGAN 48430
NOTICE OF SPECIAL MEETING OF THE SHAREHOLDERS
TO BE HELD ON SEPTEMBER 6, 2003
To the Shareholders of ATNG, Inc.:
Notice is hereby given that a special meeting of the shareholders of
ATNG, Inc. will be held at 1549 Leroy Street, Suite D-200, Fenton, Michigan
48430 on September 6, 2003 at 9:00 a.m., Fenton, Michigan time, for the
following purposes:
1. To consider and pass, with or without variation, a special
resolution, subject to requisite regulatory approval, (a)
authorizing ATNG, Inc. to change its domicile to a corporation
existing under the laws of the State of Nevada in accordance
with the Nevada Revised Statutes, and (b) approving the
adoption of new articles of incorporation and bylaws to govern
ATNG. Copies of the newly proposed articles of incorporation
and bylaws, which are attached to the proxy statement
accompanying this notice, will be effective upon the filing of
Articles of Merger with the Secretary of State of Nevada.
2. To transact such other business as may properly come before
the meeting or any adjournment or postponement thereof.
Only shareholders of record at the close of business on July 8, 2003
are entitled to notice of and to vote at the meeting and any adjournment or
postponement thereof. A list of such shareholders will be available for
inspection for at least 10 days prior to the meeting during normal business
hours at our offices.
Shareholders are cordially invited to attend the meeting in person.
Those who do not plan to attend and who wish their shares voted are requested to
sign, date, and mail promptly the enclosed proxy, for which a return envelope is
provided.
By Order of the Board of Directors,
/s/ Robert C. Simpson, Ph. D.
Robert C. Simpson, Ph. D.
President
PROXY STATEMENT
This proxy statement is furnished in connection with the solicitation
of proxies by the board of directors of ATNG, Inc., a Texas corporation, to be
voted at a special meeting of shareholders to be held at 1549 Leroy Street,
Suite D-200, Fenton, Michigan 48430 on September 6, 2003 at 9:00 a.m., Fenton,
Michigan time, and at any and all adjournments thereof. The information
contained in this proxy statement is given as of July 8, 2003. The individual
named in the accompanying form of proxy is our president and our only director.
A shareholder wishing to appoint some other person (who needs not be a
shareholder of ATNG, Inc.) to represent him at the meeting has the right to do
so, either by inserting such person's name in the blank space provided in the
form of proxy or by completing another form of proxy.
Our principal executive office and mailing address is 1549 Leroy
Street, Suite D-200, Fenton, Michigan 48430.
Solicitation of proxies by mail is expected to commence on August 18,
2003, and the cost thereof will be borne by ATNG, Inc. In addition to
solicitation by mail, certain of our directors, officers and regular employees
may, without extra compensation, solicit proxies by telephone, telegraph and
personal interview. Arrangements will be made with some of our record
shareholders, which are brokerage houses, custodians, nominees and other
fiduciaries, to send proxy materials to their principals, and they will be
reimbursed by us for postage and clerical expenses. We reserve the right, if
deemed desirable or necessary, to retain a proxy solicitation firm or other
third parties to deliver solicitation material to such brokerage houses,
custodians, nominees and other fiduciaries for distribution by them to their
principals and to assist us in collecting or soliciting proxies from them. The
cost of these services, exclusive of out-of-pocket costs, is not expected to
exceed $12,000.
We will only deliver one proxy statement to multiple shareholders
sharing an address, unless we have received contrary instructions from one or
more of the shareholders. We will promptly deliver a separate copy of this proxy
statement and future shareholder communication documents to any shareholder at a
shared address to which a single copy of this proxy statement was delivered, or
deliver a single copy of this proxy statement and future shareholder
communication documents to any shareholder or holders sharing an address to
which multiple copies are now delivered, upon written request to us at our
principal executive office.
Shareholders may also address future requests regarding delivery of
proxy statements and/or annual reports by contacting us at the address listed
above.
Shares represented by properly executed proxies will be voted as
specified. If no specifications have been given in a proxy, the shares
represented thereby will be voted FOR the change of domicile, and, in the
discretion of the persons named in the proxy, on any other business that may
properly come before the meeting. A form of proxy will not be valid unless it is
completed and delivered to Corporate Stock Transfer, 3200 Cherry Creek Drive
South, Suite 430, Denver, Colorado 80209, not less than 48 hours (excluding
Saturdays and holidays) before the meeting at which the person named therein
purports to vote in respect thereof.
REVOCABILITY
Proxies may be revoked at any time before the commencement of the
meeting by delivering to the chairman of the meeting a written revocation or a
duly executed proxy bearing a later date. For a period of at least 10 days prior
to the meeting, a complete list of shareholders entitled to vote at the meeting
will be available for inspection by shareholders of record during ordinary
business hours for proper purposes at our principal executive office.
DISSENTERS' RIGHT OF APPRAISAL
Texas law provides for a right of a shareholder to dissent to the
proposed merger and obtain appraisal of or payment for such shareholder's
shares. See "Change of Domicile - Dissent Rights of Our Shareholders."
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VOTING SECURITIES
Shareholders of record at the close of business on July 8, 2003, are
entitled to notice of and to vote at the meeting and at any adjournments
thereof. On the record date, our authorized capital stock consisted of
100,000,000 shares of common stock, par value $0.0001 per share. Each share of
our common stock is entitled to one vote, of which there were 80,666,856 shares
issued and outstanding on the record date, fully paid and non-assessable.
The quorum for the transaction of business at the meeting consists of
shareholders present in person, or represented by proxy holding not less than a
majority of the issued and outstanding shares of our common stock. If sufficient
shares are not represented in person or by proxy at the meeting to constitute a
quorum, the meeting may be postponed or adjourned in order to permit further
solicitations of proxies by us. Proxies given pursuant to this solicitation and
not revoked will be voted at any postponement or adjournment of the meeting in
the manner set forth above.
Under the Texas Business Corporation Act, two-thirds of the holders of
our common stock will be required to approve the change of domicile.
Under Texas law, abstentions are treated as present and entitled to
vote and thus will be counted in determining whether a quorum is present and
will have the effect of a vote against a matter. A broker non-vote (i.e., shares
held by brokers or nominees as to which instructions have not been received from
the beneficial owners or persons entitled to vote and the broker or nominee does
not have discretionary power to vote on a particular matter) is counted for
purposes of determining the existence of a quorum but will have no effect on the
proposed change of domicile.
CHANGE OF DOMICILE
PLAN OF MERGER
We are proposing to change our state of incorporation from Texas to
Nevada by means of a merger permitted under the corporate statutes of both
states. The merger will be between ATNG, Inc., a Texas corporation, and ATNG of
Nevada, Inc., a Nevada corporation, organized by us for the specific purpose of
the change of domicile. A copy of the special resolution authorizing the change
of domicile to be voted on by our shareholders is attached as ATTACHMENT A. The
merger will be consummated pursuant to a Plan of Merger, a copy of which is
attached as ATTACHMENT B. Copies of the articles of incorporation and bylaws,
which will serve as our articles of incorporation and bylaws following the
change of domicile are attached to the Plan of Merger. The Plan of Merger
provides that ATNG, Inc. will merge into ATNG of Nevada, Inc. Following the
merger, ATNG of Nevada, Inc. will be the surviving entity and will change its
name to ATNG Inc.
ATNG of Nevada, Inc. is a newly formed corporation with one share of
common stock issued and outstanding held by Robert C. Simpson, Ph.D., our sole
officer and director and controlling shareholder, with only minimal capital and
no other assets or liabilities. The terms of the merger provide that the
currently issued one share of the common stock of ATNG of Nevada, Inc. held by
Dr. Simpson will be cancelled. As a result, following the merger, our current
shareholders will be the only shareholders of the newly merged corporations.
The change of domicile will not interrupt the existence of ATNG. Each
share of our common stock will remain issued and outstanding as a share of the
common stock of ATNG after the change of domicile from Texas to Nevada. For a
summary of certain of the rights of shareholders of ATNG before and after the
change of domicile, see "Change of Domicile - Effect of the Change of Domicile
on Shareholder Rights."
Officers and Directors. Our board of directors currently consists of
one member, Robert C. Simpson, Ph. D. Upon the change of domicile, our board of
directors will consist of the same individual who is currently the sole director
of ATNG and who is named as the director in the articles of incorporation filed
pursuant to our change of domicile into Nevada. Additionally, immediately
following the change of domicile, our only officer will be Dr. Simpson, as
president, chief executive officer, chief financial officer, and secretary. See
"Management - Executive Officers and Directors" for more information concerning
Dr. Simpson.
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Exchange of Share Certificates. As soon as practicable on or after the
change of domicile, our shareholders of record immediately prior to the change
of domicile will be sent detailed instructions concerning the procedures to be
followed for submission of certificates representing our common stock to our
transfer agent, together with a form of transmittal letter to be sent to the
transfer agent at the time such certificates are submitted.
After the change of domicile, the transfer agent will deliver to any
holder who has previously submitted a duly completed and execute transmittal
letter and a certificate representing the common stock, a certificate issued by
us representing an equal number of shares of our common stock as a Nevada
corporation into which such shares of the common stock were converted.
After the change of domicile but before a certificate representing
common stock is surrendered, certificates representing common stock will
represent the number of shares of our common stock as a Nevada corporation into
which such common stock were converted pursuant to the terms of the change of
domicile. Our transfer agent will deliver certificates representing the
appropriate amount and type of our capital stock in accordance with the
shareholder's instructions for transfer or exchange.
Failure by a shareholder to return appropriate transmittal letters or
to surrender certificates representing common stock will not affect such
person's rights as a shareholder, as such shareholder's certificates
representing common stock following the change of domicile will represent the
number of shares of our common stock as a Texas corporation into which such
common stock were converted pursuant to the terms of the change of domicile, and
will present no material consequences to us.
CONDITIONS TO THE CHANGE OF DOMICILE; SHAREHOLDER APPROVALS
Change of Domicile. The change of domicile is subject to, among other
things:
o The approval by our shareholders of the special resolution authorizing
the change of domicile (a copy of which is attached as ATTACHMENT A) by
the affirmative vote of at least two-thirds of our common stock voting
in person or by proxy at the meeting or any adjournments thereof, and
o The filing of the Articles of Merger with the Secretary of State of
Nevada.
Notwithstanding the requisite shareholder approvals of the change of
domicile, our board of directors has reserved the right to terminate or abandon
the change of domicile without further shareholder approval if the board
determines that the consummation of the change of domicile would be inadvisable
or not in our best interests or our shareholders, or if all of the respective
conditions to consummation of the change of domicile have not occurred within a
reasonable period of time.
FILING OF ARTICLES OF MERGER
The change of domicile is subject to filing of Articles of Merger with
the Secretary of State of Nevada pursuant to the Nevada Revised Statutes. If the
special resolution is passed by the requisite number of holders of the shares of
our common stock, we intend to file the Articles of Merger.
Under the Nevada Revised Statutes, when the merger takes effect:
o Every other entity that is a constituent entity (in our case, ATNG,
Inc., a Texas corporation) merges into the surviving entity (ATNG of
Nevada, Inc.) and the separate existence of every entity except the
surviving entity ceases;
o The title to all real estate and other property owned by each merging
constituent entity is vested in the surviving entity without reversion
or impairment;
o The surviving entity has all of the liabilities of each other
constituent entity;
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o A proceeding pending against any constituent entity may be continued as
if the merger had not occurred or the surviving entity may be
substituted in the proceeding for the entity whose existence has
ceased;
o The articles of incorporation of the surviving entity are amended to
the extent provided in the plan of merger; and
o The shareholders' interests of each constituent entity that are to be
converted into shareholders' interests, obligations or other securities
of the surviving or any other entity or into cash or other property are
converted, and the former holders of the shareholders' interests are
entitled only to the rights provided in the Articles of Merger or any
created pursuant to Chapters 92A.300 to 92A.500, inclusive, of the
Nevada Revised Statutes dealing with dissenter's rights.
Resales of Our Common Stock. Pursuant to Rule 145 under the Securities
Act of 1933, the merger of ATNG from a Texas corporation into a Nevada
corporation and the exchange of our shares of common stock in the Texas
corporation into the shares of the common stock of the Nevada corporation is
exempt from registration under the Securities Act, since the sole purpose of the
transaction is a change of our domicile within the United States. The effect of
the exemption is that the shares of our common stock issuable in the change of
domicile may be resold by the former shareholders without restriction to the
same extent that such shares may have been sold before the change of domicile.
Accounting for the Transaction. Upon consummation of the change of
domicile, the historical financial statements of the Texas company will become
the historical financial statements of the Nevada company. Total shareholders'
equity will be unchanged as a result of the change of domicile.
PRINCIPAL REASONS FOR THE CHANGE OF DOMICILE
We have chosen to change our state of incorporation in order to take
advantage of several features of Nevada corporate law which are expected to help
us reduce our taxes and to facilitate our corporate actions. A comparison of
Nevada and Texas law follows:
o In Nevada, corporations incorporated in Nevada do not pay a franchise
tax or a corporate income tax. Although Texas does not have corporate
income tax per se, Texas does impose on Texas corporations a franchise
tax equal to 4.5 percent of taxable income or 0.25 of one percent of
the corporation's capital.
o Under Nevada law, important actions such as amendments to articles of
incorporations and mergers require the vote of a majority of the
shareholders. Under Texas law, such actions require the approval of
two-thirds of the shareholders. We feel that it is in our best interest
to simplify our shareholder voting requirements in order to allow us to
make it easier for the passage of important shareholder resolutions.
o Under Nevada law, unless otherwise provided in the articles of
incorporation, a corporation that desires to change the number of
shares of a class or series, if any, of its authorized stock by
increasing or decreasing the number of authorized shares of the class
or series and correspondingly increasing or decreasing the number of
issued and outstanding shares of the same class or series held by each
shareholder of record at the effective date and time of the change,
may, except as otherwise provided in subsections 2 and 3 of Chapter
78.207 of the Nevada Revised Statutes, do so by a resolution adopted by
the board of directors, without obtaining the approval of the
shareholders. The resolution may also provide for a change of the par
value, if any, of the same class or series of the shares increased or
decreased. After the effective date and time of the change, the
corporation may issue its stock in accordance therewith.
The third bullet point above is especially important to us, inasmuch as
we will be able to change our authorized shares to more efficiently meet our
current needs. Presently, we need to go to the time and expense of having a
shareholders' meeting in order to change our authorized shares. Because we are a
micro-cap company, we must be able to quickly deal with situations calling for
us to modify our capital structure.
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EFFECT OF CHANGE OF DOMICILE ON SHAREHOLDER RIGHTS
On the effective date of the merger resulting in our change of
domicile, ATNG will be deemed incorporated under the Nevada Revised Statutes.
Consequently, we will be governed by the articles of incorporation and bylaws
filed with the Articles of Merger. The following summary describes the material
consequences of the change of domicile to our shareholders, in addition to the
differences in state law described above in "Change of Domicile - Principal
Reasons for the Change of Domicile." This summary does not purport to be
exhaustive and is qualified in its entirety by reference to our current articles
of incorporation and bylaws, and the proposed new articles of incorporation and
bylaws. The text of the proposed articles of incorporation and bylaws are
included in this proxy statement as attachments to the Plan of Merger described
in ATTACHMENT B. A copy of our current articles of incorporation, bylaws, the
Texas Business Corporation Act, and the Revised Nevada Statutes will be
available for reference by the shareholders of ATNG or their legal advisers at
our registered office.
Capital Structure. Under our proposed articles of incorporation, the
total number of shares of capital stock that ATNG will have the authority to
issue is 950 million, consisting of 900 million shares of common stock, par
value $0.001 per share, and 50,000,000 shares of preferred stock, par value
$0.001 per share. Under our current articles of incorporation, ATNG presently
has the authority to issue only 100 million shares of common stock, par value
$0.0001 per share. We currently have no authority to issue any preferred stock.
Common Stock. Currently, the holders of our common stock are entitled
to one vote for each share held of record on all matters submitted to a vote of
our shareholders, including the election of directors. Following the change of
domicile, the holders of our common stock will have the same voting rights.
Also, our shareholders do not have and will not have cumulative voting rights.
Subject to preferences that may be applicable to any then outstanding series of
our preferred stock, holders of our common stock are entitled to receive ratably
such dividends, if any, as may be declared by our board of directors out of
legally available funds. In the event of the liquidation, dissolution, or
winding up of ATNG, the holders of our common stock will be entitled to share
ratably in the net assets legally available for distribution to our shareholders
after the payment of all our debts and other liabilities, subject to the prior
rights of any series of our preferred stock then outstanding. The holders of our
common stock have no preemptive or conversion rights or other subscription
rights and there are no redemption or sinking fund provisions applicable to our
common stock.
Preferred Stock. Following the change of domicile, in accordance with
the Nevada Revised Statutes, our board of directors will have the authority to
fix the number of shares of preferred stock and the designations, preferences,
powers and relative, participating, optional or other special rights and the
qualifications or restrictions on such rights. The preferences, powers, rights
and restrictions of different series of our preferred stock may vary with
respect to dividend rates, amounts payable on liquidation, voting rights,
conversion rights, redemption provisions, sinking fund provisions, purchase
funds, and other matters. The holders of our preferred stock will have no
preemptive or cumulative voting rights.
Authorizing an additional 800 million shares of common stock and the
authorizing of series of preferred stock would give the board of directors the
express authority, without further action of the shareholders, to issue common
stock or preferred stock from time to time as the board deems necessary. The
board of directors believes it is necessary to have the ability to issue such
additional shares of common stock or preferred stock for general corporate
purposes. Potential uses of the additional authorized shares may include equity
financings, issuance of options, acquisition transactions, stock dividends or
distributions, without further action by the shareholders, unless such action
were specifically required by applicable law or rules of any stock exchange or
similar system on which our securities may then be listed.
Following the change of domicile, our board of directors will file with
the State of Nevada a Certificate of Designation Establishing Series of
Preferred Stock, a copy of which is attached as ATTACHMENT C. The certificate
will establish three series of preferred stock, and will describe the powers,
preferences and rights, and the qualifications, limitations and restrictions of
our preferred stock. However, there will be important differences in each series
of our preferred stock, which are described as follows:
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o Series A will be composed of 20,000,000 shares, with every share
thereof being convertible into 10 shares of our common stock. The
Series A preferred stock will have no voting rights prior to conversion
into our common stock.
o Series B will be composed of 10,000,000 shares, with no conversion
rights into shares of our common stock. The Series B preferred stock
will have one vote per share on all matters submitted to a vote of the
holders of our common stock, including, without limitation, the
election of directors.
o Series C will be composed of 20,000,000 shares, with no conversion
rights into shares of our common stock. Each share of Series C
preferred stock will have voting rights equal to 100 votes per share of
our common stock on all matters submitted to a vote of the holders of
our common stock, including, without limitation, the election of
directors.
Following the change of domicile, we have no plans to issue any
additional shares of common stock. However, we do plan to issue 5,000,000 shares
of our Series C preferred stock to Robert C. Simpson, Ph.D., our sole officer
and director and controlling shareholder. We also plan to issue 1,000,000 shares
of our Series A preferred stock to each of Dr. Simpson and E. Robert Gates, one
of our controlling shareholders. The consideration for the issuance of the
shares of our preferred stock will be the exchange by Dr. Simpson of 10,000,000
shares of our common stock, and the exchange by Mr. Gates of 8,000,000 shares of
our common stock.
The proposed increase in the authorized number of shares of common
stock and the authorization of preferred stock could have a number of effects on
our shareholders depending upon the exact nature and circumstances of any actual
issuance of authorized but unissued shares. The increase could have an
anti-takeover effect, in that the additional shares could be issued (within the
limits imposed by applicable law) in one or more transactions that could make a
change in control or takeover of ATNG more difficult. For example, additional
shares could be issued by us so as to dilute the stock ownership or voting
rights of persons seeking to obtain control of ATNG.
The proposed change in our capital structure is not being made by us in
response to any known accumulation of shares of threatened takeover. Similarly,
the issuance of additional shares to certain persons allied with our management
could have the effect of making it more difficult to remove our current
management by diluting the stock ownership or voting rights of persons seeking
to cause such removal. In addition, an issuance of additional shares by us could
have an effect on the potential realizable value of a shareholder's investment.
In the absence of a proportionate increase in our earnings and book
value, an increase in the aggregate number of our outstanding shares caused by
the issuance of additional shares of our common stock would dilute the earnings
per share and book value per share of all outstanding shares of our common
stock. If such factors were reflected in the price per share of common stock,
the potential realizable value of a shareholder's investment could be adversely
affected.
Shareholder Consent in Lieu of Meeting. Under both the Texas Business
Corporation Act and the Nevada Revised Statutes, shareholder action may be taken
without a meeting if shareholders holding the requisite voting power execute a
consent. Texas law grants this power only if a corporation's articles of
incorporation contain a provision authorizing such conduct. Our current articles
of incorporation do not grant this power. However, Nevada law provides for less
than unanimous consent, even if the articles do not contain the power. Even so,
our proposed articles of incorporation provide that our shareholders may take
action if shareholders holding the requisite voting power execute a consent in
lieu of a meeting.
CERTAIN PROVISIONS OF OUR PROPOSED ARTICLES OF INCORPORATION AND BYLAWS
General. Provisions of our articles of incorporation and bylaws concern
matters of corporate governance and the rights of our shareholders, such as the
ability of our board of directors to issue shares of our common and preferred
stock and to set the voting rights, preferences, and other terms of our
preferred stock without further shareholder action. These provisions could also
delay or frustrate the removal of incumbent directors or the assumption of
control of our board of directors by our shareholders, and may be deemed to
discourage takeover attempts, mergers, tender offers, or proxy contests not
first approved by our board of directors, which some shareholders may deem to be
in their best interests.
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Board of Directors. The business and affairs of ATNG will continue to
be managed under the direction of our board of directors, which currently
consists of one member. The number of members on our board of directors is fixed
by, and may be increased or decreased from time to time by, the affirmative vote
of a majority of the members at any time constituting our board of directors.
Newly created directorships resulting from any increase in the number
of directors and any vacancies on our board of directors resulting from death,
resignation, disqualification, removal or other causes shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the board of directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term for which the new directorship was created or the vacancy occurred
and until the director's successor shall have been elected and qualified or
until his earlier death, resignation, or removal. No decrease in the number of
directors constituting the board of directors shall shorten the term of any
incumbent director. Our board of directors may not have less than one member.
There is no limit on the maximum size of our board.
Whenever the holders of any class or series of our capital stock are
entitled to elect one or more directors under any resolution or resolutions of
our board of directors designating a series of our preferred stock, vacancies
and newly created directorships of a class or series may be filled by a majority
of the directors then in office elected by the applicable class or series, by a
sole remaining director so elected, or by the written consent, or the
affirmative vote of a majority of the outstanding shares of the class or series
entitled to elect the directors.
Any director may be removed from office only by the affirmative vote of
the holders of a majority of the combined voting power of our then outstanding
shares of capital stock entitled to vote at a meeting of shareholders called for
that purpose, voting together as a single class.
Meetings of Shareholders. Our articles of incorporation will provide
that a special meeting of our shareholders may only be called by:
o Our president;
o The holders of at least 10 percent of the outstanding shares of our
capital stock entitled to vote at the proposed special meeting; or
o Our board of directors by means of a duly adopted resolution.
Special shareholder meetings may not be called by any other person or
in any other manner. Our bylaws provide that only those matters set forth in the
notice of the special meeting may be considered or acted upon at the special
meeting. Our articles of incorporation do not permit our shareholders to take an
action by written consent unless the action to be taken and the taking of that
action by written consent have been approved in advance by our board of
directors.
Limitation of Liability. Our articles of incorporation will provide
that any director or officer shall not be personally liable to ATNG or its
shareholders for damages as a result of any act or failure to act in his
capacity as a director or officer, unless
o It is proven that his act or failure to act constituted a breach of his
fiduciary duties and involved intentional misconduct, fraud, or a
knowing violation of law, or
o Such person is a director liable under Section 78.300 of the Nevada
Revised Statutes for the payment of an improper distribution by ATNG to
its shareholders.
Indemnification. Our articles of incorporation will provide that ATNG
shall indemnify anyone who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, except an action by ATNG or in
its right, by reason of the fact that he is or was a director, officer,
employee, or agent of ATNG, or is or was serving at ATNG's request as a
director, officer employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses,
7
including attorneys' fees, judgments fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or
proceeding if:
o The liability did not result from any act or failure to act which
constituted a breach of that person's fiduciary duties in his capacity
as a director or officer, and involved intentional misconduct, fraud,
or a knowing violation of law; or
o The person acted in good faith and in a manner which he reasonably
believed to be in, or not opposed to, our best interests, and with
respect to any criminal action or proceeding, he had no reasonable
cause to believe his conduct was unlawful.
Further, our articles of incorporation will permit ATNG to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by ATNG or in its right, to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee, or agent of ATNG, or is or was serving at our
request as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses,
including amounts paid in settlement and attorneys' fees actually and reasonably
incurred by him in connection with defense or settlement of the action or suit,
if:
o The liability did not result from any act or failure to act which
constituted a breach of that person's fiduciary duties in his capacity
as a director or officer, and involved intentional misconduct, fraud or
a knowing violation of law; or
o The person acted in good faith and in a manner which he reasonably
believed to be in, or not opposed to, our best interests.
However, ATNG will be prohibited from indemnifying any person with
respect to any action, suit, or proceeding by a court of competent jurisdiction,
if he has been finally adjudged to be liable to ATNG, unless, and only to the
extent that, the court of competent jurisdiction determines upon application
that the person is fairly and reasonably entitled to indemnification in view of
all the circumstances of the case.
Our bylaws will contain similar indemnification and limitation of
liability provisions. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers, or persons
controlling ATNG under the indemnification provisions, or otherwise, ATNG is
aware that, in the opinion of the SEC, the indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Permitted Combinations. Our articles of incorporation will expressly
provide that we will not be governed by Nevada Revised Statutes 78.411 to
78.444, inclusive, which means that we not subject to the restrictions contained
in the NRS applicable to mergers and other forms of combinations with holders of
10 percent or more of our stock.
Amendment of Bylaws. Under our articles of incorporation, our bylaws
may be amended by our board of directors or by the affirmative vote of the
holders of at least a majority of the combined voting power of the outstanding
shares of our capital stock then outstanding and entitled to vote, voting
together as a single class.
DISSENT RIGHTS OF OUR SHAREHOLDERS
Under Texas law, our shareholders are entitled, after complying with
certain requirements of Texas law, to dissent to the approval of the merger,
pursuant to Article 5.11 of the Texas Business Corporation Act, and to be paid
the "fair value" of their shares of ATNG common stock in cash by complying with
the procedures set forth in Articles 5.12 and 5.13 of the Texas Business
Corporation Act. Set forth below is a summary of the procedures relating to the
exercise of dissenters' rights by our shareholders. This summary does not
purport to be a complete statement of the provisions of Articles 5.11, 5.12 and
5.13 of the Texas Business Corporation Act and is qualified in its entirety by
reference to such provisions, which are attached as ATTACHMENT D to this proxy
statement.
Within 10 days after the effective date of the merger, we will deliver
a written dissenters' notice to each of our shareholders of record. The
dissenters' notice must:
8
o Notify the shareholder of the effective date of the merger; and
o Be accompanied by a copy of Articles 5.11, 5.12, and 5.13 of the Texas
Business Corporation Act.
Any ATNG shareholder who did not consent to the merger can exercise his
dissenters' rights by making written demand on us, within 20 days after the
mailing of the dissenters' notice, for payment of the fair value of his shares
of our common stock. The shareholder's demand must state:
o The number of shares of ATNG common stock owned by the dissenting
shareholder; and
o The fair value of the shares, as of the date of the consent approving
the merger, as estimated by the shareholder.
Any shareholder failing to make demand within the 20-day period will be
bound by the merger and will lose his right to be paid the fair value of his
shares. Within 20 days after receipt of a demand for payment, we will deliver or
mail to the shareholder a written notice that shall either:
o Set out that we accept the amount claimed by the shareholder and agree
to pay that amount within 90 days after the action was effected,
provided the shareholder has surrendered the certificates representing
the shareholder's shares of ATNG common stock; or
o Contain our estimate of the fair value of the shares, together with an
offer to pay our estimate within 90 days after the action was effected,
upon receipt of notice within 60 days after that date from the
shareholder that the shareholder agrees to accept our estimate,
provided the shareholder has surrendered the certificates representing
the shareholder's shares of ATNG common stock.
If we are unable to agree upon the fair value of any shareholder's
shares of ATNG common stock within 60 days of the date the merger was effected,
either party may, within 60 days of the expiration of such 60 day period, file a
petition in any court of competent jurisdiction asking for a finding and
determination of the fair value of the shareholder's shares of ATNG common
stock. Upon the filing of a petition by an ATNG shareholder, we are required to
file, within 10 days of service, a list containing the names and addresses of
all of ATNG's shareholders who have demanded payment and with whom agreements as
to the value of their shares have not been reached. If we file a petition, we
must file the applicable shareholder list at the same time as the petition. If
necessary, we shall, within 90 days of the court's determination of fair value
and upon surrender of the applicable certificates representing the ATNG common
stock, pay the applicable shareholders the fair value of their respective
shares.
VOTE REQUIRED
The special resolution relating to the change of domicile will not be
effective unless passed at the meeting by at least two-thirds of the votes cast
by the holders of our common stock as a group. Unless individual shareholders
specify otherwise, each returned proxy will be voted for the change of domicile.
ATTACHMENT A to this proxy statement contains the text of the special
resolution with respect to the change of domicile to be submitted to the
shareholders at the meeting.
Our board of directors recommends that shareholders vote FOR the change
of domicile, and, unless a shareholder gives instructions on the proxy card to
the contrary or a broker non-vote is indicated on the proxy card, the appointee
named thereon intends so to vote.
9
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth information concerning the directors and
executive officers of ATNG, Inc. as of the date of this proxy statement:
NAME AGE POSITION DIRECTOR SINCE
---- --- -------- --------------
Robert C. Simpson, Ph.D. 61 Chairman, President, April 2003
Chief Executive Officer,
Chief Financial Officer,
and Secretary
Our executive officers are elected annually by our board of directors.
There are no family relationships among our directors and executive officers.
See "Certain Provisions of Our Articles of Incorporation and Bylaws" for the
manner of election and term of office of our directors.
We may employ additional management personnel as our board or directors
deems necessary. ATNG has not identified or reached an agreement or
understanding with any other individuals to serve in management positions. We do
not anticipate any difficulty in employing qualified staff.
A description of the business experience during the past several years
for each of the directors and executive officers of ATNG is set forth below.
Robert C. Simpson, Ph.D. was our chief executive officer from 1996
through 2001. Since 2001, he has been president of Pathobiotek, Inc. Since 1990,
he has been president of R. Simpson Associates, Inc., a management consulting
firm with clients including General Electric, Ford, RWD Technologies Inc. and
Symbol Technologies Inc. He was a manager at General Motors from 1978 until 1990
in manufacturing engineering, projects for advanced technologies and
organizational development.
FEDERAL TAX CONSEQUENCES
The following is a discussion of certain federal income tax
considerations that may be relevant to holders of our common stock who receive
the common stock of ATNG of Nevada as a result of the proposed change of
domicile. No state, local, or foreign tax consequences are addressed herein.
This discussion does not address the state, local, federal or foreign
income tax consequences of the change of domicile that may be relevant to
particular shareholders, such as dealers in securities, or our shareholders who
exercise dissenters' rights. In view of the varying nature of such tax
considerations, each shareholder is urged to consult his own tax adviser as to
the specific tax consequences of the proposed change of domicile, including the
applicability of federal, state, local, or foreign tax laws. Subject to the
limitations, qualifications and exceptions described herein, and assuming the
change of domicile qualifies as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended, the following federal
income tax consequences generally should result:
o No gain or loss should be recognized by the shareholders of ATNG upon
conversion of their common stock into common stock of the Nevada
company pursuant to the change of domicile;
o The aggregate tax basis of the common stock received by each
shareholder of ATNG in the change of domicile should be equal to the
aggregate tax basis of our common stock converted in exchange therefor;
o The holding period of our common stock received by each shareholder of
ATNG in the change of domicile should include the period during which
the shareholder held his common stock converted therefor, provided such
common stock is held by the shareholder as a capital asset on the
effective date of the change of domicile; and
o ATNG should not recognize gain or loss for federal income tax purposes
as a result of the change of domicile.
10
ATNG has not requested a ruling from the Internal Revenue Service with
respect to the federal income tax consequences of the change of domicile under
the Code. We expect to receive an opinion from our legal counsel, Glast,
Phillips & Murray, P.C., substantially to the effect that the change of domicile
should qualify as a reorganization within the meaning of Section 368(a) of the
Code. The tax opinion will neither bind the IRS nor preclude it from asserting a
contrary position, and will be subject to certain assumptions and
qualifications, including representations made by us. We believe the change of
domicile will constitute a tax-free reorganization under Section 368(a) of the
Code, inasmuch as Section 368(a)(1)(F) of the Code defines a reorganization as a
mere change in identity, form, or place of organization of our corporation.
PRINCIPAL SHAREHOLDERS
The following table presents information regarding the beneficial
ownership of all shares of our common stock as of the record date by:
o Each person who beneficially owns more than five percent of the
outstanding shares of our common stock;
o Each of our directors;
o Each of our named executive officers; and
o All directors and officers as a group.
SHARES BENEFICIALLY
OWNED (2)
---------------------
NAME AND ADDRESS OF BENEFICIAL OWNER (1) NUMBER PERCENT
- ---------------------------------------- ---------- -------
OFFICERS AND DIRECTORS:
- -----------------------
Robert C. Simpson, Ph. D................................. 10,400,000 12.8
All directors and officers as a group (one person)..... 10,400,000 12.8
FIVE PERCENT SHAREHOLDERS:
- --------------------------
E. Robert Gates.......................................... 10,022,217 12.42
Tag Chong (Teddy) Kim.................................... 9,258,100 11.48
Marsha S. Scheer......................................... 7,050,000 8.74
Charles M Scheer......................................... 11,048,990 13.70
Kenneth Friedenreich..................................... 7,000,000 8.68
- ----------
(1) Unless otherwise indicated, the address for each of these shareholders is
c/o ATNG, Inc., 1549 Leroy Street, Suite D-200, Fenton, Michigan 48430.
Also, unless otherwise indicated, each person named in the table above has
the sole voting and investment power with respect to his shares of our
common stock beneficially owned.
(2) Beneficial ownership is determined in accordance with the rules of the SEC.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
CHANGE OF CONTROL
On June 6, 2003, Robert C. Simpson acquired 10,000,000 shares of our
common stock, which represented 12.40 percent of our issued and outstanding
common stock. Dr. Simpson had been elected to our board of directors on April 9,
2003.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires that our
directors, executive officers and persons who own more than 10 percent of a
registered class of our equity securities file with the Securities and Exchange
Commission initial reports of ownership and reports of changes in ownership of
our equity securities. Officers, directors and greater than 10 percent
shareholders are required by the SEC regulation to furnish us with copies of all
Section 16(a) forms they file.
11
Based solely on review of the copies of Forms 3, 4 and 5 and amendments
thereto furnished to us, we believe that, during the period from January 1, 2002
through December 31, 2002, all Section 16(a) filing requirements applicable to
our officers, directors and greater than 10 percent beneficial owners were met
in a timely manner.
FORM 10-KSB ANNUAL REPORT AND QUARTERLY REPORTS ON FORM 10-QSB
Our Annual Report on Form 10-KSB for the year ended December 31, 2002,
and Financial Information from our Quarterly Reports for the Periods Ended March
31, 2003 and June 30, 2003 are incorporated herein by reference.
EXHIBITS TO ANNUAL AND QUARTERLY REPORTS AND COPIES OF QUARTERLY REPORTS
WE HAVE FURNISHED OUR ANNUAL REPORT ON FORM 10-KSB FOR THE YEAR ENDED
DECEMBER 31, 2002, WHICH INCLUDED LISTS BRIEFLY DESCRIBING ALL THE EXHIBITS NOT
CONTAINED THEREIN. WE WILL FURNISH COPIES OF OUR QUARTERLY REPORTS FOR THE
PERIODS ENDED MARCH 31, 2003 AND JUNE 30, 2003, WHICH INCLUDED LISTS BRIEFLY
DESCRIBING ALL THE EXHIBITS NOT CONTAINED THEREIN. WE WILL FURNISH THE QUARTERLY
REPORTS AND ANY EXHIBIT TO THE FORM 10-KSB AND THE QUARTERLY REPORTS UPON THE
PAYMENT OF A SPECIFIED REASONABLE FEE WHICH FEE SHALL BE LIMITED TO OUR
REASONABLE EXPENSES IN FURNISHING ANY SUCH REPORT OR EXHIBIT. ANY REQUEST SHOULD
BE DIRECTED TO OUR CORPORATE SECRETARY AT 1549 LEROY STREET, SUITE D-200,
FENTON, MICHIGAN 48430, OR TELEPHONE (810) 714-2978.
OTHER MATTERS
Our board of directors is not aware of any matter to be presented for
action at the meeting other than the matters set forth in this proxy statement.
Should any other matter requiring a vote of the shareholders arise, the persons
named as proxies on the enclosed proxy card will vote the shares represented
thereby in accordance with their best judgment in the interest of ATNG, Inc.
Discretionary authority with respect to such other matters is granted by the
execution of the enclosed proxy card.
SHAREHOLDER PROPOSALS FOR 2004 ANNUAL MEETING OF SHAREHOLDERS
Proposals of shareholders intended to be presented at the 2004 Annual
Meeting of Shareholders must be received by us by January 31, 2004 to be
considered for inclusion in the proxy statement and form of proxy relating to
the 2004 meeting.
By Order of the Board of Directors,
/s/ Robert C. Simpson, Ph. D.
Robert C. Simpson, Ph. D.
President
12
ATNG, INC.
1549 LEROY STREET, SUITE D-200
FENTON, MICHIGAN 48430
PROXY
THIS PROXY IS SOLICITED BY THE MANAGEMENT OF ATNG, INC. (THE "COMPANY")
FOR A SPECIAL MEETING OF ITS SHAREHOLDERS (THE "MEETING") TO BE HELD ON
SEPTEMBER 6, 2003.
The undersigned hereby appoints Robert C. Simpson, Ph.D., or instead of
the foregoing, (insert name) _______________________________, as nominee of the
undersigned, with full power of substitution, to attend and vote on behalf of
the undersigned at the Meeting to be held at 1549 Leroy Street, Suite D-200
Fenton, Michigan on September 6, 2003 at 9:00 a.m., Fenton, Michigan time, and
at any adjournments thereof, and directs the nominee to vote or abstain from
voting the shares of the undersigned in the manner indicated below:
1. Vote FOR [ ] AGAINST [ ] the 2. Upon any other matter that
resolution to change our properly comes before the
jurisdiction of incorporation Meeting.
from the State of Texas to the
State of Nevada.
THE UNDERSIGNED HEREBY REVOKES ANY PRIOR PROXY OR PROXIES.
Dated _____________________________ , 2003.
___________________________________
Signature of Shareholder
___________________________________
Printed Name of Shareholder
A PROXY WILL NOT BE VALID UNLESS THE FORM OF PROXY IS DATED, DULY
EXECUTED AND DELIVERED TO THE OFFICE OF CORPORATE STOCK TRANSFER, 3200 CHERRY
CREEK DRIVE SOUTH, SUITE 430, DENVER, COLORADO 80209, NOT LESS THAN 48 HOURS
(EXCLUDING SATURDAYS AND HOLIDAYS) BEFORE THE MEETING AT WHICH THE PERSON NAMED
THEREIN PURPORTS TO VOTE IN RESPECT THEREOF.
Joint owners should each sign the proxy. When the proxy is signed by a
corporation either its common seal must be affixed to the proxy or it should be
signed by the corporation under the hand of an officer or attorney duly
authorized in writing, which authorization must accompany the proxy.
THE SHARES REPRESENTED BY THE PROXY WILL BE VOTED OR WITHHELD FROM
VOTING IN ACCORDANCE WITH THE INSTRUCTIONS OF THE STOCKHOLDER ON ANY BALLOT AND
WHERE A CHOICE WITH RESPECT TO ANY MATTER TO BE ACTED UPON IS SPECIFIED, THE
SHARES WILL BE VOTED ON ANY BALLOT IN ACCORDANCE WITH SUCH SPECIFICATION.
___________________________________
___________________________________
___________________________________
(Please advise the Company of any change of address)
ATTACHMENT A
SPECIAL RESOLUTION
ATTACHMENT B
PLAN OF MERGER
ATTACHMENT C
CERTIFICATE OF DESIGNATION ESTABLISHING SERIES OF PREFERRED STOCK
ATTACHMENT D
SECTIONS 5.11, 5.12, AND 5.13 OF THE TEXAS BUSINESS CORPORATION ACT
PLAN AND AGREEMENT OF MERGER
WHEREAS, it is in the best interests of the Company that it
change its state of incorporation from Texas to Nevada, and in
connection therewith that the Company merge with and into ATNG of
Nevada, Inc. as set out in the proposed Plan and Agreement of Merger
presented to this meeting;
NOW, THEREFORE, IT IS RESOLVED, that the appropriate officers
of the Company be, and they hereby are, authorized and directed to
execute the Plan and Agreement of Merger and to take whatever steps
which may be necessary and to effectuate the merger approved herein.
PLAN AND AGREEMENT OF MERGER
BETWEEN
ATNG, INC. (A TEXAS CORPORATION)
AND
ATNG OF NEVADA, INC. (A NEVADA CORPORATION)
ATNG, INC., a Texas corporation ("ATNG Texas") and ATNG OF NEVADA,
INC., a Nevada corporation ("ATNG Nevada"), hereby agree as follows:
1. PLAN ADOPTED. A plan of merger merging ATNG Texas with and into ATNG
Nevada (this "Plan of Merger"), pursuant to the provisions of Chapter 92A of the
Nevada Revised Statutes (the "NRS"), Article 5 of the Texas Business Corporation
Act (the "TBCA"), and Section 368(a)(1)(F) of the Internal Revenue Code of 1986,
as amended, is adopted as follows:
(a) ATNG Texas shall be merged with and into ATNG Nevada, to
exist and be governed by the laws of the State of Nevada.
(b) ATNG Nevada shall be the Surviving Corporation and its
name shall be changed to ATNG Inc. (the "Surviving Corporation").
(c) When this Plan of Merger shall become effective, the
separate existence of ATNG Texas shall cease and the Surviving Corporation shall
succeed, without other transfer, to all the rights and properties of ATNG Texas
and shall be subject to all the debts and liabilities of such corporation in the
same manner as if the Surviving Corporation had itself incurred them. All rights
of creditors and all liens upon the property of each constituent entity shall be
preserved unimpaired, limited in lien to the property affected by such liens
immediately prior to the merger (the "Merger").
(d) The Surviving Corporation will be responsible for the
payment of all fees and franchise taxes of the constituent entities payable to
the State of Nevada, if any.
(e) The Surviving Corporation will carry on business with the
assets of ATNG Texas, as well as the assets of ATNG Nevada.
(f) The Surviving Corporation will be responsible for the
payment of the fair value of shares, if any, required under Sections 5.11, 5.12,
and 5.13 of the TBCA.
(g) The stockholders of ATNG Texas will surrender all of their
shares in the manner hereinafter set forth.
(h) In exchange for the shares of ATNG Texas surrendered by
its stockholders, the Surviving Corporation will issue and transfer to such
stockholders on the basis hereinafter set forth, shares of its common stock.
(i) The stockholders of ATNG Nevada will keep their shares of
the Surviving Corporation.
2. EFFECTIVE DATE. The effective date of the Merger (the "Effective
Date") shall be the date of the filing of Articles of Merger for ATNG Texas and
ATNG Nevada in the States of Texas and Nevada.
3. SUBMISSION TO STOCKHOLDERS. This Plan of Merger shall be submitted
for approval separately to the stockholders of ATNG Texas and ATNG Nevada in the
manner provided by the laws of the States of Texas and Nevada.
1
4. MANNER OF EXCHANGE. On the Effective Date, the stockholders of ATNG
Texas shall surrender their stock certificates to ATNG Nevada in exchange for
shares of the Surviving Corporation to which they are entitled.
5. BASIS OF EXCHANGE. The holders of shares of the common stock, $0.001
par value per share, of ATNG Texas shall be entitled to receive, in exchange for
all the outstanding stock of ATNG Texas, an amount of stock so that after the
issuance thereof, such holders of ATNG Texas will hold all of the issued and
outstanding shares of the common stock of the Surviving Corporation, par value
$0.001 per share.
6. SHARES OF THE SURVIVING CORPORATION HELD BY THE CURRENT STOCKHOLDERS
OF ATNG NEVADA. The presently outstanding shares of the common stock of ATNG
Nevada will be cancelled.
7. DIRECTORS AND OFFICERS.
(a) The present Board of Directors of ATNG Texas shall serve
as the Board of Directors of the Surviving Corporation until the next annual
meeting or until such time as their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the
Surviving Corporation on the Effective Date, such vacancy may be filled by the
Board of Directors as provided in the Bylaws of the Surviving Corporation.
(c) All persons who, on the Effective Date, are executive or
administrative officers of ATNG Texas shall be officers of the Surviving
Corporation until the Board of Directors of the Surviving Corporation shall
otherwise determine. The Board of Directors of the Surviving Corporation may
elect or appoint such additional officers as it may deem necessary or
appropriate.
8. ARTICLES OF INCORPORATION. The Articles of Incorporation of ATNG
Nevada, existing on the Effective Date and reflecting the change of the
corporate name to ATNG Inc. and other provisions, a copy of which are attached
hereto as EXHIBIT A and incorporated herein for all purposes, shall continue in
full force as the Articles of Incorporation of the Surviving Corporation until
altered, amended, or repealed as provided therein or as provided by law.
9. BYLAWS. The Bylaws of ATNG Nevada existing on the Effective Date and
reflecting the change of the corporate name to ATNG Inc., a copy of which are
attached hereto as EXHIBIT B and incorporated herein for all purposes, shall
continue in full force as the Bylaws of the Surviving Corporation until altered,
amended, or repealed as provided therein or as provided by law.
(a) COPIES OF THE PLAN OF MERGER. A copy of this Plan of
Merger is on file at 1549 Leroy Street, Suite D-200, Fenton, Michigan 48430, the
principal offices of ATNG Texas, and 1549 Leroy Street, Suite D-200, Fenton,
Michigan 48430, the principal offices of ATNG Nevada. A copy of this Plan of
Merger will be furnished to any stockholder of ATNG Texas or ATNG Nevada, on
written request and without cost.
10. CONTRACTUAL CONSENTS NEEDED. The parties to this Plan of Merger
shall have obtained, at or prior to the Effective Date, all consents required
for the consummation of the transactions contemplated by this Plan of Merger
from any party to any contract, agreement, instrument, lease, license,
arrangement, or understanding to which any of them is a party, or to which any
of their respective businesses, properties, or assets are subject.
11. NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to ATNG Texas, addressed to Robert C. Simpson, Ph.D.
at 1549 Leroy Street, Suite D-200, Fenton, Michigan 48430, telecopier (810)
714-3524, and e-mail patho@chartermi.net; and if to ATNG Nevada, addressed to
Robert C. Simpson, Ph.D. at 1549 Leroy Street, Suite D-200, Fenton, Michigan
48430, telecopier (810) 714-3524, and e-mail patho@chartermi.net. Any party
hereto may change its address upon 10 days' written notice to any other party
hereto.
2
12. LEGAL CONSTRUCTION. In case any one or more of the provisions
contained in this Plan of Merger shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof, and this Plan of
Merger shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
13. BENEFIT. All the terms and provisions of this Plan of Merger shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their successors and permitted assigns.
14. LAW GOVERNING. This Plan of Merger shall be construed and governed
by the laws of the State of Nevada, and all obligations hereunder shall be
deemed performable in Fenton, Michigan.
15. PERFECTION OF TITLE. The parties hereto shall do all other acts and
things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Plan of Merger, and to carry out the intent
of this Plan of Merger.
16. CUMULATIVE RIGHTS. The rights and remedies of any party under this
Plan of Merger and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
17. WAIVER. No course of dealing on the part of any party hereto or its
agents, nor any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Plan of Merger or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
18. CONSTRUCTION. Whenever used herein, the singular number shall
include the plural, the plural number shall include the singular, and the
masculine gender shall include the feminine.
19. MULTIPLE COUNTERPARTS. This Plan of Merger may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan of Merger on
September ___, 2003.
ATNG, INC.
By
------------------------------------
Robert C. Simpson, Ph.D., President
ATNG OF NEVADA, INC.
By
------------------------------------
Robert C. Simpson, Ph.D., President
ATTACHMENTS:
- ------------
Exhibit A - Amended and Restated Articles of Incorporation of ATNG Inc.
Exhibit B - Amended Bylaws of ATNG Inc.
3
EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
ATNG INC.
A NEVADA CORPORATION
EXHIBIT B
AMENDED BYLAWS OF
ATNG INC.,
A NEVADA CORPORATION
CERTIFICATE OF DESIGNATION
ESTABLISHING SERIES A, B, AND C PREFERRED STOCK
OF ATNG INC.
To the Secretary of State of the State of Nevada:
Pursuant to the provisions of Section 78.1955 of the Nevada Revised
Statutes, the undersigned corporation submits the following statement for the
purpose of the establishment and designation of a series of shares of preferred
stock and fixing and determining the relative rights and preferences thereof:
A. The name of the corporation is ATNG INC. (the "Company").
B. The following resolutions fixing and determining the relative
rights and preferences of the Company's Series A, B, and C Preferred Stock were
duly adopted by the Board of Directors of the Company on September ___, 2003:
WHEREAS, the Company has the authority to issue 900,000,000 shares of
common stock, par value $0.001 per share (the "Common Stock") and 50,000,000
shares of preferred stock, par value $0.001 per share (the "Preferred Stock");
and
WHEREAS, the Company desires to designate series of the Preferred Stock to
be known as "Series A Preferred Stock," "Series B Preferred Stock," and "Series
C Preferred Stock;" and
WHEREAS, the Series A Preferred Stock will consist of 20,000,000 shares,
the Series B Preferred Stock will consist of 10,000,000 shares, and the Series C
Preferred Stock will consist of 20,000,000 shares;
NOW, THEREFORE, it is hereby resolved that the Company does hereby create
the Series A, B, and C Preferred Stock which shall be composed of 50,000,000
shares of the Preferred Stock, and which Series A, B, and C Preferred Stock
shall have the following relative rights and preferences:
1. DIVIDENDS. Except as provided herein, the holders of outstanding
shares of the Series A, B, and C Preferred Stock shall be entitled to receive
cash, stock, or other property, as dividends when, as, and if declared by the
Board of Directors of the Company. If shares of the Series A, B, and C Preferred
Stock or the Common Stock are to be issued as a dividend, any such shares shall
be issued at Market Value. "Market Value" for the Common Stock for the purposes
of this Certificate of Designation shall mean the average of the bid and ask
prices for the Common Stock for the five business days preceding the declaration
of a dividend by the Board of Directors. "Market Value" with respect to any
shares of the Series A, B, and C Preferred Stock shall be as determined by the
Board of Directors, whose decision shall be final and binding on all parties.
2. REDEMPTION RIGHTS. Subject to the applicable provisions of Nevada
law, the Company, at the option of its directors, and with the consent of a
majority of the stockholders of the Series A, B, and C Preferred Stock, may at
any time or from time to time redeem the whole or any part of the outstanding
Series A, B, and C Preferred Stock. Any such redemption shall be pro rata with
respect to all of the holders of the Series A, B, and C Preferred Stock. Upon
redemption, the Company shall pay for each share redeemed the amount of $0.001
per share, payable in cash, plus a premium to compensate the original
purchaser(s) for the investment risk and cost of capital equal to the greater of
(a) $0.25 per share, or (b) an amount per share equal to 50 percent of the
market capitalization of the Company on the date of notice of such redemption
divided by the number of the shares of the Series A, B, and C Preferred Stock
then issued and outstanding (the "Redemption Premium"), the redemption amount
and the Redemption Premium hereinafter being referred to as the "Redemption
Price." Such redemption shall be on an all-or-nothing basis.
At least 30 days previous notice by mail, postage prepaid, shall be
given to the holders of record of the Series A, B, and C Preferred Stock to be
redeemed, such notice to be addressed to each such stockholder at the address of
such holder appearing on the books of the Company or given by such holder to the
Company for the purpose of notice, or if no such address appears or is given, at
the place where the principal office of the Company is located. Such notice
shall state the date fixed for redemption and the redemption price, and shall
call upon the holder to surrender to the Company on said date at the place
designated in the notice such holder's certificate or certificates representing
the shares to be redeemed. On or after the date fixed for redemption and stated
in such
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notice, each holder of Series A, B, and C Preferred Stock called for redemption
shall surrender the certificate evidencing such shares to the Company at the
place designated in such notice and shall thereupon be entitled to receive
payment of the redemption price. If less than all the shares represented by any
such surrendered certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares. If such notice of redemption shall have been
duly given, and if on the date fixed for redemption funds necessary for the
redemption shall be available therefor, notwithstanding that the certificates
evidencing any Series A, B, and C Preferred Stock called for redemption shall
not have been surrendered, the dividends with respect to the shares so called
for redemption shall forthwith after such date cease and determine, except only
the right of the holders to receive the redemption price without interest upon
surrender of their certificates therefor.
If, on or prior to any date fixed for redemption of Series A, B, and C
Preferred Stock, the Company deposits, with any bank or trust company as a trust
fund, a sum sufficient to redeem, on the date fixed for redemption thereof, the
shares called for redemption, with irrevocable instructions and authority to the
bank or trust company to give the notice of redemption thereof (or to complete
the giving of such notice if theretofore commenced) and to pay, or deliver, on
or after the date fixed for redemption or prior thereto, the redemption price of
the shares to their respective holders upon the surrender of their share
certificates, then from and after the date of the deposit (although prior to the
date fixed for redemption), the shares so called shall be redeemed and any
dividends on those shares shall cease to accrue after the date fixed for
redemption. The deposit shall constitute full payment of the shares to their
holders, and from and after the date of the deposit the shares shall no longer
be outstanding and the holders thereof shall cease to be stockholders with
respect to such shares, and shall have no rights with respect thereto except the
right to receive from the bank or trust company payment of the redemption price
of the shares without interest, upon the surrender of their certificates
therefor. Any interest accrued on any funds so deposited shall be the property
of, and paid to, the Company. If the holders of Series A, B, and C Preferred
Stock so called for redemption shall not, at the end of six years from the date
fixed for redemption thereof, have claimed any funds so deposited, such bank or
trust company shall thereupon pay over to the Company such unclaimed funds, and
such bank or trust company shall thereafter be relieved of all responsibility in
respect thereof to such holders and such holders shall look only to the Company
for payment of the redemption price.
3. LIQUIDATION RIGHTS. Upon the dissolution, liquidation or winding up
of the Company, whether voluntary or involuntary, the holders of the then
outstanding shares of Series A, B, and C Preferred Stock shall be entitled to
receive out of the assets of the Company the sum of $0.001 per share (the
"Liquidation Rate") before any payment or distribution shall be made on the
Common Stock, or any other class of capital stock of the Company ranking junior
to the Series A, B, and C Preferred Stock.
(a) The sale, conveyance, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or substantially all the
property and assets of the Company shall be deemed a dissolution, liquidation or
winding up of the Company for purposes of this Paragraph 3, but the merger,
consolidation, or other combination of the Company into or with any other
corporation, or the merger, consolidation, or other combination of any other
corporation into or with the Company, shall not be deemed a dissolution,
liquidation or winding up, voluntary or involuntary, for purposes of this
Paragraph 3. As use herein, the "merger, consolidation, or other combination"
shall include, without limitation, a forward or reverse triangular merger, or
stock exchange of the Company and any of its subsidiaries with any other
corporation.
(b) After the payment to the holders of shares of the Series A,
B, and C Preferred Stock of the full preferential amounts fixed by this
Paragraph 3 for shares of the Series A, B, and C Preferred Stock, the holders of
the Series A, B, and C Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Company.
(c) In the event the assets of the Company available for
distribution to the holders of the Series A, B, and C Preferred Stock upon
dissolution, liquidation or winding up of the Company shall be insufficient to
pay in full all amounts to which such holders are entitled pursuant to this
Paragraph 3, no distribution shall be made on account of any shares of a class
or series of capital stock of the Company ranking on a parity with the shares of
the Series A, B, and C Preferred Stock, if any, upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of the Series A, B, and C Preferred Stock,
ratably, in proportion to the full distributive amounts for which holders of all
such parity shares are respectively entitled upon such dissolution, liquidation
or winding up.
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4. CONVERSION OF SERIES A PREFERRED STOCK. At any time, the holder of
shares of the Series A Preferred Stock shall have the right, at such holder's
option, to convert any number of shares of the Series A Preferred Stock into
shares of the Common Stock. Such right to convert shall commence as of the date
the shares of such Series A Preferred Stock are issued to such holder (the
"Issue Date") and shall continue thereafter for a period of 10 years, such
period ending on the 10th anniversary of the Issue Date. In the event that the
holder of the Series A Preferred Stock elects to convert such shares into Common
Stock, the holder shall have 60 days from the date of such notice in which to
tender his shares of Series A Preferred Stock to the Company. Any such
conversion shall be upon the other following terms and conditions:
(a) CONVERSION RIGHT. Subject to adjustment as provided herein,
each share of the Series A Preferred Stock shall be convertible into 10 fully
paid and nonassessable shares of the Common Stock (the "Conversion Rate").
(b) ADJUSTMENT OF CONVERSION RATE FOR DILUTION AND OTHER EVENTS.
In order to prevent dilution of the rights granted to the holders of shares of
the Series A Preferred Stock, the Conversion Rate will be subject to adjustment
from time to time as follows:
(i) ADJUSTMENT OF CONVERSION RATE UPON SUBDIVISION OR
COMBINATION OF THE COMMON STOCK. If the Company at any time subdivides the
Common Stock (by any stock split, stock dividend, recapitalization or otherwise)
into a greater number of shares, the Conversion Rate in effect immediately prior
to such subdivision will be proportionately reduced. If the Company at any time
combines the Common Stock (by combination, reverse stock split or otherwise)
into a smaller number of shares, the Conversion Rate in effect immediately prior
to such combination will be proportionately increased.
(ii) REORGANIZATION, RECLASSIFICATION, CONSOLIDATION,
MERGER, OR SALE. Any recapitalization, reorganization, reclassification,
consolidation, merger, or other similar transaction which is effected in such a
way that holders of the Common Stock are entitled to receive (either directly or
upon subsequent liquidation) stock, securities or assets with respect to or in
exchange for the Common Stock is referred to herein as an "Organic Change."
Prior to the consummation of any Organic Change, the Company will make
appropriate provision, in form and substance satisfactory to the holders of a
majority of the outstanding shares of the Series A Preferred Stock, to ensure
that each of the holders of shares of the Series A Preferred Stock will
thereafter have the right to acquire and receive in lieu of or in addition to,
as the case may be, the shares of the Common Stock immediately theretofore
acquirable and receivable upon the conversion of such holder's Series A
Preferred Stock, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for the number of shares of the Common
Stock immediately theretofore acquirable and receivable upon the conversion of
such holder's shares of the Series A Preferred Stock had such Organic Change not
taken place. In any such case, the Company will make appropriate provision, in
form and substance satisfactory to the holders of a majority of the outstanding
shares of the Series A Preferred Stock, with respect to such holders' rights and
interests to ensure that the provisions of this paragraph and paragraph 4(c)
below will thereafter be applicable to the Series A Preferred Stock. The Company
will not effect any such consolidation or merger, unless prior to the
consummation thereof the successor entity resulting from such consolidation or
merger, if other than the Company, assumes, by written instrument, in form and
substance satisfactory to the holders of a majority of the outstanding shares of
the Series A Preferred Stock, the obligation to deliver to each holder of shares
of the Series A Preferred Stock such shares of stock, securities or assets as,
in accordance with the foregoing provisions, that such holder may be entitled to
acquire.
(iii) NOTICES. Immediately upon any adjustment of the
Conversion Rate, the Company will give written notice of such adjustment to each
holder of shares of the Series A Preferred Stock, setting forth in reasonable
detail and certifying the calculation of such adjustment. The Company will give
written notice to each holder of shares of the Series A Preferred Stock at least
20 days prior to the date on which the Company closes its books or takes a
record with respect to any dividend or distribution upon the Common Stock, or
with respect to any pro rata subscription offer to holders of the Common Stock.
The Company will also give written notice to each holder of shares of the Series
A Preferred Stock at least 20 days prior to the date on which any Organic
Change, dissolution or liquidation will take place.
(c) PURCHASE RIGHTS. If at any time the Company grants, issues or
sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of the Common Stock
(the "Purchase Rights"), then each holder of shares of the Series A Preferred
Stock will be
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entitled to acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which such holder could have acquired if such holder
had held the number of shares of the Common Stock acquirable upon complete
conversion of the holder's shares of the Series A Preferred Stock immediately
before the date on which a record is taken for the grant, issuance or sale of
such Purchase Rights, or, if no such record is taken, the date as of which the
record holders of the Common Stock are to be determined for the grant, issue or
sale of such Purchase Rights.
(d) MECHANICS OF CONVERSION. To convert shares of the Series A
Preferred Stock into full shares of the Common Stock on any date (the
"Conversion Date"), the holder thereof shall (i) deliver or transmit by
facsimile to the Company, for receipt on or prior to 11:59 p.m., Pacific Time,
on the Conversion Date, a copy of a fully executed notice of conversion in the
form attached hereto as Attachment A (the "Conversion Notice"), and (ii)
surrender to a common carrier for delivery to the Company as soon as practicable
following such date, the certificates (each a "Preferred Stock Certificate")
representing the shares of the Series A Preferred Stock being converted, or an
indemnification undertaking with respect to such shares in the case of the loss,
theft or destruction thereof, and the originally executed Conversion Notice.
Upon receipt by the Company of a facsimile copy of a Conversion Notice, the
Company shall immediately send, via facsimile, a confirmation of receipt of such
Conversion Notice to such holder. Within five business days of the Company's
receipt of the originally executed Conversion Notice and the holder's Preferred
Stock Certificate(s), the Company shall issue and surrender to a common carrier
for overnight delivery to the address as specified in the Conversion Notice, a
certificate, registered in the name of the holder or its designee, for the
number of shares of the Common Stock to which the holder is entitled.
(e) RECORD HOLDER. The person or persons entitled to receive
shares of the Common Stock issuable upon conversion of shares of the Series A
Preferred Stock shall be treated for all purposes as the record holder or
holders of such shares of the Common Stock on the Conversion Date.
(f) FRACTIONAL SHARES. The Company shall not be required to issue
any fraction of a share of the Common Stock upon any conversion. All shares of
the Common Stock, including fractions thereof, issuable upon conversion of more
than one share of the Series A Preferred Stock shall be aggregated for purposes
of determining whether the conversion would result in the issuance of a fraction
of a share of the Common Stock. If, after such aggregation, the issuance would
result in the issuance of a fraction of it share of the Common Stock, the
Company shall round such fraction of a share of the Common Stock up or down to
the nearest whole share.
(g) REISSUANCE OF CERTIFICATES. In the event of a conversion of
less than all of the shares of the Series A Preferred Stock represented by a
particular Preferred Stock Certificate, the Company shall promptly cause to be
issued and delivered to the holder of such Series A Preferred Stock a new Series
A Preferred Stock Certificate representing the remaining shares of the Series A
Preferred Stock which were not corrected.
5. RESERVATION OF SHARES. The Company shall, so long as any of the
shares of the Series A Preferred Stock are outstanding, reserve and keep
available out of its authorized and unissued shares of the Common Stock, solely
for the purpose of effecting the conversion of the shares of the Series A
Preferred Stock, the number of shares of the Common Stock as shall from time to
time be sufficient to affect the conversion of all of the outstanding shares of
the Series A Preferred Stock.
6. NO CONVERSION RIGHTS FOR THE SERIES B AND C PREFERRED STOCK. The
Series B and C Preferred Stock shall not have any conversion rights into shares
of the Common Stock.
7. PREFERRED STATUS. The rights of the shares of the Common Stock
shall be subject to the preferences and relative rights of the shares of the
Series A, B, and C Preferred Stock. Without the prior written consent of the
holders of not less than two-thirds (2/3) of the outstanding shares of the
Series A, B, and C Preferred Stock, the Company shall not hereafter authorize or
issue additional or other capital stock that is of senior or equal rank to the
shares of the Series A, B, and C Preferred Stock in respect of the preferences
as to distributions and payments upon the liquidation, dissolution and winding
up of the Company described in Paragraph 3 above.
8. RESTRICTION ON DIVIDENDS. If any shares of the Series A, B, and C
Preferred Stock are outstanding, the Company shall not, without the prior
written consent of the holders of not less than two-thirds (2/3) of the then
outstanding shares of the Series A, B, and C Preferred Stock, directly or
indirectly declare, pay or make any dividends or other distributions upon any of
the Common Stock. Notwithstanding the foregoing, this paragraph
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shall not prohibit the Company from declaring and paying a dividend in cash with
respect to the shares of the Common Stock so long as the Company simultaneously
pays each holder of shares of the Series A, B, and C Preferred Stock an amount
in cash equal to the amount such holder would have received had all of such
holder's shares of the Series A, B, and C Preferred Stock been converted to
shares of the Common Stock on the business day prior to the record date for any
such dividend.
9. VOTE TO CHANGE THE TERMS OF THE SERIES A, B, AND C PREFERRED STOCK.
Without the prior written consent of the holders of not less than two-thirds
(2/3) of the outstanding shares of the Series A, B, and C Preferred Stock, the
Company shall not amend, alter, change or repeal any of the powers,
designations, preferences and rights of the Series A, B, and C Preferred Stock.
10. LOST OR STOLEN CERTIFICATES. Upon receipt by the Company of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of any Preferred Stock Certificates representing shares of the Series
A, B, and C Preferred Stock, and, in the case of loss, theft or destruction, of
any indemnification undertaking or bond, in the Company's discretion, by the
holder to the Company and, in the case of mutilation, upon surrender and
cancellation of the Preferred Stock Certificate(s), the Company shall execute
and deliver new Series A, B, and C Preferred Stock Certificate(s) of like tenor
and date; provided, however, the Company shall not be obligated to re-issue
Series A, B, and C Preferred Stock Certificates if the holder thereof
contemporaneously requests the Company to convert such shares of the Series A,
B, and C Preferred Stock into the Common Stock.
11. Voting. On all matters submitted to a vote of the holders of the
Common Stock, including, without limitation, the election of directors:
(a) The Series A Preferred Stock will have no voting rights,
prior to conversion into shares of the Common Stock.
(b) A holder of shares of the Series B Preferred Stock shall be
entitled to one vote per share held by such holder at the record date for the
determination of stockholders entitled to vote on such matters.
(c) A holder of shares of the Series C Preferred Stock shall be
entitled to 100 votes per share held by such holder at the record date for the
determination of stockholders entitled to vote on such matters.
(d) If no such record date is established, the date to be used
for the determination of the stockholders entitled to vote on such matters shall
be the date on which notice of the meeting of stockholders at which the vote is
to be taken is marked, or the date any written consent of stockholders is
solicited if the vote is not to be taken at a meeting. The holders of Series B
and C Preferred Stock shall not vote as a separate class, but shall vote with
the holders of the Common Stock.
RESOLVED FURTHER, that the appropriate officers of the Company are hereby
authorized and directed, for and on behalf of the Company, to prepare and file
all necessary instruments as may be required by law to carry out the terms of
the foregoing resolution.
Dated: September ___, 2003.
ATNG INC.
By
-----------------------------------
Robert C. Simpson, Ph.D., President
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ARTICLE 5.11.
RIGHTS OF DISSENTING SHAREHOLDERS IN THE EVENT OF CERTAIN CORPORATE ACTIONS
A. Any shareholder of a domestic corporation shall have the right to
dissent from any of the following corporate actions:
1. Any plan of merger to which the corporation is a party if
shareholder approval is required by Article 5.03 or 5.16 of this Act and the
shareholder holds shares of a class or series that was entitled to vote thereon
as a class or otherwise;
2. Any sale, lease, exchange or other disposition (not including any
pledge, mortgage, deed of trust or trust indenture unless otherwise provided in
the articles of incorporation) of all, or substantially all, the property and
assets, with or without good will, of a corporation if special authorization of
the shareholders is required by this Act and the shareholders hold shares of a
class or series that was entitled to vote thereon as a class or otherwise;
3. Any plan of exchange pursuant to Article 5.02 of this Act in which
the shares of the corporation of the class or series held by the shareholder are
to be acquired.
B. Notwithstanding the provisions of Section A of this Article, a
shareholder shall not have the right to dissent from any plan of merger in which
there is a single surviving or new domestic or foreign corporation, or from any
plan of exchange, if:
1. the shares held by the shareholder are part of a class or series,
shares of which are on the record date fixed to determine the shareholders
entitled to vote on the plan of merger or plan of exchange:
a. listed on a national securities exchange;
b. listed on the NASDAQ Stock Market (or successor quotation
system) or designated as a national market security on an interdealer quotation
system by the National Association of Securities Dealers, Inc., or successor
entity; or
c. held of record by not less than 2,000 holders;
2. the shareholder is not required by the terms of the plan of merger
or plan of exchange to accept for the shareholder's shares any consideration
that is different than the consideration (other than cash in lieu of fractional
shares that the shareholder would otherwise be entitled to receive) to be
provided to any other holder of shares of the same class or series of shares
held by such shareholder; and
3. the shareholder is not required by the terms of the plan of merger
or the plan of exchange to accept for the shareholder's shares any consideration
other than:
a. shares of a domestic or foreign corporation that, immediately
after the effective time of the merger or exchange, will be part of a class or
series, shares of which are:
i. listed, or authorized for listing upon official notice of
issuance, on a national securities exchange;
ii. approved for quotation as a national market security on
an interdealer quotation system by the National Association of Securities
Dealers, Inc., or successor entity; or
iii. held of record by not less than 2,000 holders;
b. cash in lieu of fractional shares otherwise entitled to be
received; or
c. any combination of the securities and cash described in
Subdivisions (a) and (b) of this subsection.
Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts
1957, 55th Leg., p. 111, ch. 54,ss.10; Acts 1973, 63rd Leg., p. 1508, ch.
545,ss.36, eff. Aug. 27, 1973.
Amended by Acts 1989, 71st Leg., ch. 801,ss.34, eff. Aug. 28, 1989; Sec. B
amended by Acts 1991, 72nd Leg., ch. 901,ss.32, eff. Aug. 26, 1991. Amended by
Acts 1997, 75th Leg., ch. 375,ss.29, eff. Sept. 1, 1997.
ARTICLE 5.12.
PROCEDURE FOR DISSENT BY SHAREHOLDERS AS TO SAID CORPORATE ACTIONS
A. Any shareholder of any domestic corporation who has the right to dissent
from any of the corporate actions referred to in Article 5.11 of this Act may
exercise that right to dissent only by complying with the following procedures:
a. With respect to proposed corporate action that is submitted to
a vote of shareholders at a meeting, the shareholder shall file with the
corporation, prior to the meeting, a written objection to the action, setting
out that the shareholder's right to dissent will be exercised if the action is
effective and giving the shareholder's address, to which notice thereof shall be
delivered or mailed in that event. If the action is effected and the shareholder
shall not have voted in favor of the action, the corporation, in the case of
action other than a merger, or the surviving or new corporation (foreign or
domestic) or other entity that is liable to discharge the shareholder's right of
dissent, in the case of a merger, shall, within ten (10) days after the action
is effected, deliver or mail to the shareholder written notice that the action
has been effected, and the shareholder may, within ten (10) days from the
delivery or mailing of the notice, make written demand on the existing,
surviving, or new corporation (foreign or domestic) or other entity, as the case
may be, for payment of the fair value of the shareholder's shares. The fair
value of the shares shall be the value thereof as of the day immediately
preceding the meeting, excluding any appreciation or depreciation in
anticipation of the proposed action. The demand shall state the number and class
of the shares owned by the shareholder and the fair value of the shares as
estimated by the shareholder. Any shareholder failing to make demand within the
ten (10) day period shall be bound by the action.
b. With respect to proposed corporate action that is approved
pursuant to Section A of Article 9.10 of this Act, the corporation, in the case
of action other than a merger, and the surviving or new corporation (foreign or
domestic) or other entity that is liable to discharge the shareholder's right of
dissent, in the case of a merger, shall, within ten (10) days after the date the
action is effected, mail to each shareholder of record as of the effective date
of the action notice of the fact and date of the action and that the shareholder
may exercise the shareholder's right to dissent from the action. The notice
shall be accompanied by a copy of this Article and any articles or documents
filed by the corporation with the Secretary of State to effect the action. If
the shareholder shall not have consented to the taking of the action, the
shareholder may, within twenty (20) days after the mailing of the notice, make
written demand on the existing, surviving, or new corporation (foreign or
domestic) or other entity, as the case may be, for payment of the fair value of
the shareholder's shares. The fair value of the shares shall be the value
thereof as of the date the written consent authorizing the action was delivered
to the corporation pursuant to Section A of Article 9.10 of this Act, excluding
any appreciation or depreciation in anticipation of the action. The demand shall
state the number and class of shares owned by the dissenting shareholder and the
fair value of the shares as estimated by the shareholder. Any shareholder
failing to make demand within the twenty (20) day period shall be bound by the
action.
2. Within twenty (20) days after receipt by the existing, surviving,
or new corporation (foreign or domestic) or other entity, as the case may be, of
a demand for payment made by a dissenting shareholder in accordance with
Subsection (1) of this Section, the corporation (foreign or domestic) or other
entity shall deliver or mail to the shareholder a written notice that shall
either set out that the corporation (foreign or domestic) or other entity
accepts the amount claimed in the demand and agrees to pay that amount within
ninety (90) days after the date on which the action was effected, and, in the
case of shares represented by certificates, upon the surrender of the
certificates duly endorsed, or shall contain an estimate by the corporation
(foreign or domestic) or other entity of the fair value of the shares, together
with an offer to pay the amount of that estimate within ninety (90) days after
the date on which the action was effected, upon receipt of notice within sixty
(60) days after that date from the
shareholder that the shareholder agrees to accept that amount and, in the case
of shares represented by certificates, upon the surrender of the certificates
duly endorsed.
3. If, within sixty (60) days after the date on which the corporate
action was effected, the value of the shares is agreed upon between the
shareholder and the existing, surviving, or new corporation (foreign or
domestic) or other entity, as the case may be, payment for the shares shall be
made within ninety (90) days after the date on which the action was effected
and, in the case of shares represented by certificates, upon surrender of the
certificates duly endorsed. Upon payment of the agreed value, the shareholder
shall cease to have any interest in the shares or in the corporation.
B. If, within the period of sixty (60) days after the date on which the
corporate action was effected, the shareholder and the existing, surviving, or
new corporation (foreign or domestic) or other entity, as the case may be, do
not so agree, then the shareholder or the corporation (foreign or domestic) or
other entity may, within sixty (60) days after the expiration of the sixty (60)
day period, file a petition in any court of competent jurisdiction in the county
in which the principal office of the domestic corporation is located, asking for
a finding and determination of the fair value of the shareholder's shares. Upon
the filing of any such petition by the shareholder, service of a copy thereof
shall be made upon the corporation (foreign or domestic) or other entity, which
shall, within ten (10) days after service, file in the office of the clerk of
the court in which the petition was filed a list containing the names and
addresses of all shareholders of the domestic corporation who have demanded
payment for their shares and with whom agreements as to the value of their
shares have not been reached by the corporation (foreign or domestic) or other
entity. If the petition shall be filed by the corporation (foreign or domestic)
or other entity, the petition shall be accompanied by such a list. The clerk of
the court shall give notice of the time and place fixed for the hearing of the
petition by registered mail to the corporation (foreign or domestic) or other
entity and to the shareholders named on the list at the addresses therein
stated. The forms of the notices by mail shall be approved by the court. All
shareholders thus notified and the corporation (foreign or domestic) or other
entity shall thereafter be bound by the final judgment of the court.
C. After the hearing of the petition, the court shall determine the
shareholders who have complied with the provisions of this Article and have
become entitled to the valuation of and payment for their shares, and shall
appoint one or more qualified appraisers to determine that value. The appraisers
shall have power to examine any of the books and records of the corporation the
shares of which they are charged with the duty of valuing, and they shall make a
determination of the fair value of the shares upon such investigation as to them
may seem proper. The appraisers shall also afford a reasonable opportunity to
the parties interested to submit to them pertinent evidence as to the value of
the shares. The appraisers shall also have such power and authority as may be
conferred on Masters in Chancery by the Rules of Civil Procedure or by the order
of their appointment.
D. The appraisers shall determine the fair value of the shares of the
shareholders adjudged by the court to be entitled to payment for their shares
and shall file their report of that value in the office of the clerk of the
court. Notice of the filing of the report shall be given by the clerk to the
parties in interest. The report shall be subject to exceptions to be heard
before the court both upon the law and the facts. The court shall by its
judgment determine the fair value of the shares of the shareholders entitled to
payment for their shares and shall direct the payment of that value by the
existing, surviving, or new corporation (foreign or domestic) or other entity,
together with interest thereon, beginning 91 days after the date on which the
applicable corporate action from which the shareholder elected to dissent was
effected to the date of such judgment, to the shareholders entitled to payment.
The judgment shall be payable to the holders of uncertificated shares
immediately but to the holders of shares represented by certificates only upon,
and simultaneously with, the surrender to the existing, surviving, or new
corporation (foreign or domestic) or other entity, as the case may be, of duly
endorsed certificates for those shares. Upon payment of the judgment, the
dissenting shareholders shall cease to have any interest in those shares or in
the corporation. The court shall allow the appraisers a reasonable fee as court
costs, and all court costs shall be allotted between the parties in the manner
that the court determines to be fair and equitable.
E. Shares acquired by the existing, surviving, or new corporation (foreign
or domestic) or other entity, as the case may be, pursuant to the payment of the
agreed value of the shares or pursuant to payment of the judgment entered for
the value of the shares, as in this Article provided, shall, in the case of a
merger, be treated as provided in the plan of merger and, in all other cases,
may be held and disposed of by the corporation as in the case of other treasury
shares.
F. The provisions of this Article shall not apply to a merger if, on the
date of the filing of the articles of merger, the surviving corporation is the
owner of all the outstanding shares of the other corporations, domestic or
foreign, that are parties to the merger.
G. In the absence of fraud in the transaction, the remedy provided by this
Article to a shareholder objecting to any corporate action referred to in
Article 5.11 of this Act is the exclusive remedy for the recovery of the value
of his shares or money damages to the shareholder with respect to the action. If
the existing, surviving, or new corporation (foreign or domestic) or other
entity, as the case may be, complies with the requirements of this Article, any
shareholder who fails to comply with the requirements of this Article shall not
be entitled to bring suit for the recovery of the value of his shares or money
damages to the shareholder with respect to the action.
Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts
1967, 60th Leg., p. 1721, ch. 657,ss.12, eff. June 17, 1967.
Secs. A and D amended by Acts 1983, 68th Leg., p. 2570, ch. 442, ss. 9,
eff. Sept. 1, 1983; Sec. B amended by Acts 1987, 70th Leg., ch. 93, ss. 27, eff.
Aug. 31, 1987. Amended by Acts 1989, 71st Leg., ch. 801, ss. 35, eff. Aug. 28,
1989. Secs. A, D amended by Acts 1993, 73rd Leg., ch. 215, ss. 2.16, eff. Sept.
1, 1993.
ARTICLE 5.13.
PROVISIONS AFFECTING REMEDIES OF DISSENTING SHAREHOLDERS
A. Any shareholder who has demanded payment for his shares in accordance
with either Article 5.12 or 5.16 of this Act shall not thereafter be entitled to
vote or exercise any other rights of a shareholder except the right to receive
payment for his shares pursuant to the provisions of those articles and the
right to maintain an appropriate action to obtain relief on the ground that the
corporate action would be or was fraudulent, and the respective shares for which
payment has been demanded shall not thereafter be considered outstanding for the
purposes of any subsequent vote of shareholders.
B. Upon receiving a demand for payment from any dissenting shareholder, the
corporation shall make an appropriate notation thereof in its shareholder
records. Within twenty (20) days after demanding payment for his shares in
accordance with either Article 5.12 or 5.16 of this Act, each holder of
certificates representing shares so demanding payment shall submit such
certificates to the corporation for notation thereon that such demand has been
made. The failure of holders of certificated shares to do so shall, at the
option of the corporation, terminate such shareholder's rights under Articles
5.12 and 5.16 of this Act unless a court of competent jurisdiction for good and
sufficient cause shown shall otherwise direct. If uncertificated shares for
which payment has been demanded or shares represented by a certificate on which
notation has been so made shall be transferred, any new certificate issued
therefor shall bear similar notation together with the name of the original
dissenting holder of such shares and a transferee of such shares shall acquire
by such transfer no rights in the corporation other than those which the
original dissenting shareholder had after making demand for payment of the fair
value thereof.
C. Any shareholder who has demanded payment for his shares in accordance
with either Article 5.12 or 5.16 of this Act may withdraw such demand at any
time before payment for his shares or before any petition has been filed
pursuant to Article 5.12 or 5.16 of this Act asking for a finding and
determination of the fair value of such shares, but no such demand may be
withdrawn after such payment has been made or, unless the corporation shall
consent thereto, after any such petition has been filed. If, however, such
demand shall be withdrawn as hereinbefore provided, or if pursuant to Section B
of this Article the corporation shall terminate the shareholder's rights under
Article 5.12 or 5.16 of this Act, as the case may be, or if no petition asking
for a finding and determination of fair value of such shares by a court shall
have been filed within the time provided in Article 5.12 or 5.16 of this Act, as
the case may be, or if after the hearing of a petition filed pursuant to Article
5.12 or 5.16, the court shall determine that such shareholder is not entitled to
the relief provided by those articles, then, in any such case, such shareholder
and all persons claiming under him shall be conclusively presumed to have
approved and ratified the corporate action from which he dissented and shall be
bound thereby, the right of such shareholder to be paid the fair value of his
shares shall cease, and his status as a shareholder shall be restored without
prejudice to any corporate proceedings which may have been taken during the
interim, and such shareholder shall be entitled to receive any dividends or
other distributions made to shareholders in the interim.
Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts
1967, 60th Leg., p. 1723, ch. 657,ss.13, eff. June 17, 1967.
Sec. B amended by Acts 1983, 68th Leg., p. 2573, ch. 442, ss. 10, eff.
Sept. 1, 1983. Amended by Acts 1993, 73rd Leg., ch. 215, ss. 2.17, eff. Sept. 1,
1993.