Articles of Merger - ZEOS International Ltd., Micron Computer Inc. and Micron Custom Manufacturing Services Inc.
ARTICLES OF MERGER
AMONG
ZEOS INTERNATIONAL, LTD.,
MICRON COMPUTER, INC., AND
MICRON CUSTOM MANUFACTURING SERVICES, INC.
THE UNDERSIGNED, each being a duly appointed and
qualified officer of ZEOS International, Ltd., a Minnesota
corporation ("ZEOS"), Micron Computer, Inc., an Idaho
corporation ("MCI"), and Micron Custom Manufacturing
Services, Inc., an Idaho corporation ("MCMS"), as the case
may be, hereby certify as follows:
1. Attached hereto as Exhibit A is the Plan of Merger
(the "Plan of Merger") for the merger of MCI and MCMS with
and into ZEOS (the "Merger"), which has been duly adopted by
the board of directors of each of such corporations.
2. Such Plan of Merger has been approved by ZEOS
pursuant to Chapter 302A of the Minnesota Business
Corporation Act.
3. The number of shares of MCI capital stock
outstanding and entitled to vote on the Plan of Merger
consists of 987,500 shares of MCI Class A Common Stock and
474,260 shares of MCI Class B Common Stock. Each such class
is entitled to vote on the Plan of Merger separately as a
single class and, in addition, the classes vote on the Plan
of Merger together as one class. The number of shares of
MCMS capital stock outstanding and entitled to vote on the
Plan of Merger consists of 1,849,281 shares of MCMS Common
Stock.
4. The number of shares of MCI Class A Common Stock
voted for and against the Plan of Merger was 987,500 and 0
shares, respectively. The number of shares of MCI Class B
Common Stock voted for and against the Plan of Merger was
443,000 and 50, respectively. The number of shares of MCMS
Common Stock voted for and against the Plan of Merger was
1,827,779 and 350, respectively.
5. The Merger shall become effective in both the
State of Minnesota and the State of Idaho at 4:00 p.m.,
central daylight time, on April 7, 1995.
6. The undersigned officer of ZEOS, in accordance
with Section 30-1-77(b) of the Idaho Business Corporation
Act, hereby certifies and agrees on behalf of ZEOS that:
(a) ZEOS may be served with process in the State of Idaho in
a proceeding for the enforcement of an obligation of MCI or
MCMS and in a proceeding for the enforcement of the rights
of a dissenting shareholder of MCI or MCMS against ZEOS; (b)
the Secretary of State of Idaho is hereby irrevocably
appointed as agent for ZEOS to accept service of process on
behalf of ZEOS in any proceeding; and (c) ZEOS will promptly
pay to dissenting shareholders of MCI and MCMS the amount,
if any, to which they are entitled under Section 30-1-80 of
the Idaho Business Corporation Act.
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly
executed this document for and on behalf of their respective
corporations this 6th day of April, 1995.
ZEOS INTERNATIONAL, LTD.
By /s/ Charles T. Henderson
-------------------------
Charles T. Henderson
Chief Financial Officer
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this 6th day of April, 1995, before me
personally appeared Charles T. Henderson to me known to be
the person described in, and who executed the foregoing
instrument, and acknowledged that he executed the same as
his free act and deed.
(Seal)
/s/ Jay E. Simpson
------------------
Notary Public
<PAGE>
MICRON COMPUTER, INC.
By /s/ Chase S. Mart
-----------------
Chase S. Mart
President and
Chief Executive Officer
I, Kristine W. Nitz, hereby certify that I am the
Secretary of Micron Computer, Inc., and that I am authorized
to execute these Articles of Merger on behalf of Micron
Computer, Inc., and hereby certify that the foregoing
signature is a specimen signature of the President and Chief
Executive Officer of Micron Computer, Inc.
By /s/ Kristine W. Nitz
--------------------
Kristine W. Nitz
Secretary
STATE OF IDAHO )
) ss.
COUNTY OF ADA )
On this 6th day of April, 1995, before me
personally appeared Chase S. Mart to me known to be the
person described in, and who executed the foregoing
instrument, and acknowledged that he executed the same as
his free act and deed.
(Seal)
/s/ Andrea Lanning
------------------
Notary Public
<PAGE>
MICRON CUSTOM MANUFACTURING SERVICES, INC.
By /s/ Joseph M. Daltoso
---------------------
Joseph M. Daltoso
Chairman and President
I, Dena L. Banducci, hereby certify that I am the
Secretary of Micron Custom Manufacturing Services, Inc., and
that I am authorized to execute these Articles of Merger on
behalf of Micron Custom Manufacturing Services, Inc., and
hereby certify that the foregoing signature is a specimen
signature of the Chairman and President of Micron Custom
Manufacturing Services, Inc.
By /s/ Dena L. Banducci
--------------------
Dena L. Banducci
Secretary
STATE OF IDAHO )
) ss.
COUNTY OF ADA )
On this 6th day of April, 1995, before me
personally appeared Joseph M. Daltoso to me known to be the
person described in, and who executed the foregoing
instrument, and acknowledged that he executed the same as
his free act and deed.
(Seal)
/s/ Andrea Lanning
------------------
Notary Public
<PAGE>
Exhibit A to
Articles of Merger
PLAN OF MERGER
The respective boards of directors of ZEOS
International, Ltd. ("ZEOS"), a Minnesota corporation,
Micron Computer, Inc., an Idaho corporation ("MCI"), and
Micron Custom Manufacturing Services, Inc., an Idaho
corporation ("MCMS"), have, by resolutions duly adopted,
approved the following provisions of this Plan of Merger
(the "Plan of Merger") required by the Idaho Business
Corporation Act (the "Idaho Law") and Chapter 302A of the
Minnesota Business Corporation Act (the "Minnesota Law"):
ARTICLE I
TERMS AND CONDITIONS OF THE MERGER
SECTION 1.1 The Merger.
(a) At the Effective Time (as hereinafter defined),
MCI and MCMS shall be merged (the "Merger") with and into
the Company in accordance with the Minnesota Law and the
Idaho Law, whereupon the separate existence of MCI and MCMS
shall cease, and the Company shall be the surviving
corporation (the "Surviving Corporation").
(b) The Merger shall become effective in both the
State of Minnesota and the State of Idaho at 4:00 p.m.,
central daylight time, on April 7, 1995 (the "Effective
Time").
(c) From and after the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, powers
and franchises and be subject to all of the restrictions,
disabilities and duties of the Company, MCI and MCMS, all as
provided under the Minnesota Law and the Idaho Law.
SECTION 1.2 Conversion of Shares. At the Effective
Time:
(a) each issued and outstanding share of MCMS Common
Stock outstanding immediately prior to the Effective Time
(other than shares held as treasury stock of MCMS, shares
held directly or indirectly by the Company or shares as
to which the holders thereof possess and have not
effectively withdrawn or otherwise lost their appraisal
rights pursuant to Idaho Law (the "MCMS Dissenters'
Shares")) shall be converted into 20.475586 shares of
Company Common Stock;
(b) each issued and outstanding share of MCI Class A
Common Stock outstanding immediately prior to the
Effective Time (other than shares held as treasury stock
of MCI, shares held directly or indirectly by the Company
or shares as to which the holders thereof possess and
have not effectively withdrawn or otherwise lost their
appraisal rights pursuant to Idaho Law (the "MCI Class A
Dissenters' Shares")) shall be converted into 42.316865
shares of Company Common Stock;
(c) each issued and outstanding share of MCI Class B
Common Stock outstanding immediately prior to the
Effective Time (other than shares held as treasury stock
of MCI, shares held directly or indirectly by the Company
or shares as to which the holders thereof possess and
have not effectively withdrawn or otherwise lost their
appraisal rights pursuant to Idaho Law (the "MCI Class B
Dissenters' Shares" and together with the MCMS
Dissenters' Shares and the MCI Class A Dissenters'
Shares, the "Dissenters' Shares")) shall be converted
into 9.057555 shares of Company Common Stock; and
(d) each share of MCI and MCMS Common Stock held as
treasury stock of MCI or MCMS, respectively, or held
directly or indirectly by the Company, MCI or MCMS shall
be canceled, retired and cease to exist, and no exchange
or payment shall be made with respect thereof.
SECTION 1.3 Rights of Holders of MCI and MCMS
Capital Stock; Capital Stock of the Company.
(a) On and after the Effective Time and until
surrendered for exchange, each outstanding stock certificate
which immediately prior to the Effective Time represented
shares of MCI or MCMS Common Stock (other than Dissenters'
Shares) shall be deemed for all purposes, except as provided in
<PAGE>
Section 1.5(c) of this Plan of Merger, to evidence ownership
of and to represent the number of whole shares of Company
Common Stock into which such shares of MCI and MCMS Common
Stock shall have been converted, and the record holder of
such outstanding certificate shall, after the Effective
Time, be entitled to vote the shares of Company Common Stock
into which such shares of MCI and MCMS Common Stock shall
have been converted on any matters on which the holders of
record of Company Common Stock, as of any date subsequent to
the Effective Time, shall be entitled to vote. In any
matters relating to such certificates, the Company may rely
conclusively upon the record of shareholders maintained by
MCI and MCMS containing the names and addresses of the
holders of record of MCI and MCMS Common Stock at the
Effective Time.
(b) On and after the Effective Time, each share of
Company Common Stock issued and outstanding immediately
prior to the Effective Time shall remain an issued,
outstanding and existing share of Company Common Stock of
the Surviving Corporation and shall not be affected by the
Merger.
(c) On and after the Effective Time, the Company shall
reserve a sufficient number of authorized but unissued
shares of Company Common Stock for issuance in connection
with the conversion of MCI and MCMS Common Stock into
Company Common Stock as provided herein.
SECTION 1.4 No Fractional Shares. No fractional
shares of Company Common Stock, and no certificates
representing such fractional shares, shall be issued upon
the surrender for exchange of certificates representing MCI
or MCMS Common Stock. In lieu of any fractional share, the
Company shall pay to each holder of MCI and MCMS Common
Stock who otherwise would be entitled to receive a
fractional share of Company Common Stock an amount of cash
(without interest) determined by multiplying (a) the average
of the last sale price per share of Company Common Stock for
the five trading days preceding the date of the Effective
Time as reported in The Wall Street Journal, times (b) the
fractional share interest to which such holder would
otherwise be entitled.
SECTION 1.5 Procedure for Exchange of Stock.
(a) After the Effective Time, holders of certificates
theretofore evidencing outstanding shares of MCI and MCMS
Common Stock, upon surrender of such certificates to an
exchange agent appointed by the Company (the "Exchange
Agent"), shall be entitled to receive (i) certificates
representing the number of whole shares of Company Common
Stock into which shares of MCI and MCMS Common Stock
theretofore represented by the certificates so surrendered
shall have been converted as provided in Section 1.2 and
(ii) cash payments in lieu of fractional shares, if any, as
provided in Section 1.4. As soon as practicable after the
Effective Time, the Company shall cause the Exchange Agent
to mail appropriate and customary transmittal materials
(which shall specify that delivery shall be effected, and
risk of loss and title to the certificates theretofore
representing shares of MCI and MCMS Common Stock shall pass,
only upon proper delivery of such certificates to the
Exchange Agent) to each holder of MCI and MCMS Common Stock
of record as of the Effective Time advising such holder of
the effectiveness of the Merger and the procedure for
surrendering to the Exchange Agent outstanding certificates
formerly evidencing MCI and MCMS Common Stock in exchange
for new certificates for Company Common Stock. The Company
shall not be obligated to deliver the consideration to which
any former holder of shares of MCI and MCMS Common Stock is
entitled as a result of the Merger until such holder
surrenders the certificate or certificates representing such
shares for exchange as provided in such transmittal
materials and this Section 1.5(a). Upon surrender, each
certificate evidencing MCI and MCMS Common Stock shall be
cancelled.
(b) On the Effective Time, the Company shall deposit,
or shall cause to be deposited, with the Exchange Agent, for
exchange in accordance with this Section 1.5, certificates
representing the shares of Company Common Stock and the cash
in lieu of fractional shares (such certificates and cash,
hereinafter referred to as the "Exchange Fund") to be issued
or paid by the Company pursuant to this Article I in
connection with the Merger.
(c) Until outstanding certificates formerly
representing MCI and MCMS Common Stock are surrendered as
provided in Section 1.5(a), no dividend or distribution
payable to holders of record of Company Common Stock shall
be paid to any holder of such outstanding certificates, but
upon surrender of such outstanding certificates by such
holder there shall be paid to such holder the amount of any
dividends or distributions (without interest) theretofore
paid with respect to such whole shares of Company Common
Stock, but not paid to such holder, and which dividends or
distributions had a record date occurring on or subsequent
to the Effective Time.
(d) After the Effective Time, there shall be no
further registration of transfers on the records of MCI and
MCMS of outstanding certificates formerly representing
shares of MCI and MCMS Common Stock and, if a certificate
formerly representing such shares is presented to MCI and
MCMS or the Company, it shall be forwarded to the Exchange
Agent for cancellation and exchange for certificates
<PAGE>
representing shares of Company Common Stock as herein
provided.
(e) All shares of Company Common Stock and cash for
any fractional shares issued and paid upon the surrender for
exchange of MCI and MCMS Common Stock in accordance with the
above terms and conditions shall be deemed to have been
issued and paid in full satisfaction of all rights
pertaining to such shares of MCI and MCMS Common Stock.
(f) Any portion of the Exchange Fund (including the
proceeds of any investments thereof and any Company Common
Stock or any dividends or distributions thereon) that
remains unclaimed by the holders of MCI or MCMS Common Stock
for six months after the Effective Time shall be repaid to
the Company. Any holders of MCI or MCMS Common Stock who
have not theretofore complied with this Section 1.5 shall
thereafter look only to the Company for payment of their
shares of Company Common Stock, cash in lieu of fractional
shares and any unpaid dividends and distributions on the
Company Common Stock deliverable in respect of each share of
MCI or MCMS Common Stock that such holder holds as
determined pursuant to this Agreement, in each case, without
any interest thereon. If outstanding certificates for
shares of MCI or MCMS Common Stock are not surrendered or
the payment for them not claimed prior to the date on which
such payments would otherwise escheat to or become the
property of any governmental unit or agency, the unclaimed
items shall, to the extent permitted by abandoned property
and any other applicable law, become the property of the
Company (and to the extent not in its possession shall be
paid over to it), free and clear of all claims or interest
of any person previously entitled to such claims.
Notwithstanding the foregoing, none of the Company, the
Exchange Agent or any other person shall be liable to any
former holder of MCI and MCMS Common Stock for any amount
delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
(g) In the event any certificate for MCI and MCMS
Common Stock shall have been lost, stolen or destroyed, the
Exchange Agent shall issue and pay in exchange for such
lost, stolen or destroyed certificate, upon the making of an
affidavit of that fact by the holder of record thereof, such
shares of Company Common Stock and cash for fractional
shares, if any, as may be required pursuant to this
Agreement; provided, however, that the Company may, in its
discretion and as a condition precedent to the issuance and
payment thereof, require the owner of such lost, stolen or
destroyed certificate to deliver a bond in such sum as it
may direct as indemnity against any claim that may be made
against the Company, MCI and MCMS, the Exchange Agent or any
other party with respect to the certificate alleged to have
been lost, stolen or destroyed.
SECTION 1.6 Dissenting Shares. Any Dissenters'
Shares shall not be converted into Company Common Stock as
provided in Section 1.2 unless and until the holder of such
Dissenters' Shares shall have effectively withdrawn or
otherwise lost the right to appraisal of and payment for
such shares under the Idaho Law, at which time such shares
shall be converted into Company Common Stock as provided in
Section 1.2. MCI and MCMS each promptly following the
approval of the Merger by its shareholders, or the Surviving
Corporation, shall deliver notice to the holders of
Dissenters' Shares as required by Section 30-1-81(d) of the
Idaho Law. Promptly following the Effective Time (or the
later receipt of demand for payment and deposit of
certificates representing Dissenters' Shares), the Surviving
Corporation shall remit payment to the holders of
Dissenters' Shares of the fair value of such shares, as
determined by the Surviving Corporation.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 Articles of Incorporation. The articles
of incorporation of the Company in effect at the Effective
Time shall be the articles of incorporation of the Surviving
Corporation (the "Articles") (until amended in accordance
with applicable law) except as follows:
(a) Article 1 of the Articles shall be restated in its
entirety to read as follows:
ARTICLE 1. NAME
The name of the Corporation is "Micron
Electronics, Inc."
(b) Article 3 of the Articles shall be restated in its
entirety to read as follows:
ARTICLE 3. AUTHORIZED SHARES
<PAGE>
The aggregate number of authorized shares of the
corporation is 150,000,000 of $.01 par value, which shall
be divisible into the classes and series, have the
designations, voting rights and other rights and
preferences and be subject to the restrictions, that the
Board of Directors of the corporation may from time to
time establish, fix and determine consistent with
Articles 4 and 5 hereof. Unless otherwise designated by
the Board of Directors, all issued shares shall be deemed
Common Stock with equal rights and preferences.
SECTION 2.2 Bylaws. The bylaws of the Company in
effect at the Effective Time shall be the bylaws of the
Surviving Corporation until amended in accordance with
applicable law.
SECTION 2.3 Directors. The directors of the
Surviving Corporation shall be Steven R. Appleton, Joseph M.
Daltoso, Gregory E. Herrick, Robert A. Lothrop, Chase S.
Mart, T. Erik Oaas, John R. Simplot and Jerry M. Hess.