PLAN AND AGREEMENT OF MERGER
BY AND BETWEEN
U.S. REALTEL, INC.,
AN ILLINOIS CORPORATION
AND
U.S. REALTEL, INC.,
A DELAWARE CORPORATION
THIS PLAN AND AGREEMENT OF MERGER is made by and between U.S. RealTel,
Inc., an Illinois corporation (the "TERMINATING CORPORATION"), and U.S.
RealTel, Inc., a Delaware corporation (the "SURVIVING CORPORATION"), pursuant
to Section 11.35 of the Illinois Business Corporation Act of 1983, as
amended, and Section 252 of the Delaware General Corporation Law.
RECITALS
A. The Terminating Corporation is authorized to issue 50,000,000 shares
of Common Stock, $0.001 par value per share, of which 6,442,808 shares are
issued and outstanding as of February 14, 2000.
B. The Surviving Corporation is authorized to issue 50,000,000 shares of
Common Stock, $0.001 par value per share, of which ten (10) shares are issued
and outstanding, and 5,000,000 shares of Preferred Stock, $0.001 par value
per share, none of which are issued and outstanding.
C. The respective Boards of Directors of the Terminating Corporation and
the Surviving Corporation have determined that it is in the best interests of
Terminating Corporation and the Surviving Corporation to merge the
Terminating Corporation with and into the Surviving Corporation (the
"MERGER") on the terms and conditions herein contained in order to create a
single corporation organized under the laws of the State of Delaware.
TERMS AND CONDITIONS
NOW, THEREFORE, the parties to this Plan and Agreement of Merger, in
consideration of the premises, mutual covenants, agreements and provisions
herein contained, do hereby agree to and prescribe the terms and conditions
of the Merger and the mode of carrying the same into effect as follows:
1. MERGER. The Terminating Corporation shall be merged with and into
the Surviving Corporation.
2. EFFECTIVE DATE. The Merger shall become effective on the date on
which Articles of Merger are filed with the Secretary of State of Illinois
(the "EFFECTIVE DATE").
3. SURVIVING CORPORATION. The Surviving Corporation shall survive the
Merger and shall continue to be governed by the laws of the State of
Delaware, but the separate corporate existence of the Terminating Corporation
shall cease forthwith upon the Effective Date.
4. AUTHORIZED CAPITAL. The authorized capital stock of the Surviving
Corporation following the Effective Date will be 50,000,000 shares of Common
Stock, $0.001 par value per share, and 5,000,000 shares of Preferred Stock,
$0.001 par value per share, unless and until such authorized capital shall be
changed in accordance with the laws of the State of Delaware.
5. CERTIFICATE OF INCORPORATION. The current Certificate of
Incorporation of the Surviving Corporation shall continue to be the Surviving
Corporation's Certificate of Incorporation following the Effective Date,
unless and until the same shall be otherwise amended or repealed in
accordance with the provisions thereof and in accordance with the laws of the
State of Delaware.
6. BYLAWS. The current Bylaws of the Surviving Corporation shall be
the Bylaws of the Surviving Corporation following the Effective Date unless
and until the same shall be otherwise amended or repealed in accordance with
the provisions thereof and of the Surviving Corporation's Certificate of
Incorporation and in accordance with the laws of the State of Delaware.
7. DIRECTORS AND OFFICERS. The officers and directors of the
Terminating Corporation shall, from and after the Effective Date, be the
officers and directors of the Surviving Corporation until their successors
have been duly elected or appointed and qualify or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
Certificate of Incorporation and Bylaws.
8. CONVERSION OF OUTSTANDING SHARES OF TERMINATING CORPORATION. The
manner and basis of converting the outstanding shares of capital stock of the
Terminating Corporation into shares of the Surviving Corporation shall be as
follows:
As of the Effective Date, by virtue of the Merger and without any
further action on the part of the Surviving Corporation, the Terminating
Corporation, or the holders thereof:
(i) Each share of Common Stock of the Surviving Corporation
outstanding immediately prior to the Effective Date shall be canceled;
and
(ii) Each share of Common Stock of the Terminating Corporation
outstanding immediately prior to the effective Date shall be cancelled
and converted into the right to receive from Surviving Corporation one
fully paid and non-assessable share of the Common Stock of the
Surviving Corporation, par value of $0.001 per share.
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9. TRANSFER OF TANGIBLE AND INTANGIBLE PROPERTY INTERESTS UPON THE
EFFECTIVE DATE. Immediately upon the Effective Date, without limiting the
force and effect of any applicable provisions of the Illinois Business
Corporation Act of 1983, as amended (the "ILLINOIS ACT"), or of the Delaware
General Corporation Law, as amended (the "DELAWARE ACT"), with respect to the
legal effect of the Merger, all the real and personal property rights and
interests, privileges, franchises, patents, trade secrets, confidential
information, trademarks, licenses, registrations and all other legal rights
and assets of every kind and description of the Terminating Corporation,
whether tangible or intangible, shall be automatically transferred to, vested
in and devolve upon the Surviving Corporation without further act or deed;
and all property, rights and every other interest of the Surviving
Corporation and of the Terminating Corporation shall be as effectively the
property of the Surviving Corporation as they theretofore were of the
Surviving Corporation and the Terminating Corporation, respectively. The
Terminating Corporation and its directors and officers hereby agree from time
to time as and when requested by the Surviving Corporation or by its
successors and assigns, to execute and deliver or cause to be executed and
delivered all such deeds and instruments and to take or cause to be taken
such further or other actions as the Surviving Corporation may deem necessary
or desirable in order to vest in, and confirm to, the Surviving Corporation,
title to and possession of any and all property of the Terminating
Corporation acquired or to be acquired by the Surviving Corporation by reason
or as a result of the Merger and otherwise to carry out all of the intents
and purposes hereof. The officers and directors of the Terminating
Corporation and the officers and directors of the Surviving Corporation are
hereby fully authorized in the name of the Terminating Corporation and the
Surviving Corporation, respectively, to take any and all such actions on
behalf of the respective corporations to effect the Merger.
10. ASSUMPTION OF CONTRACTS; STOCK PLANS. Immediately upon the
Effective Date, without limiting the force and effect of any applicable
provisions of the Illinois Act, or of the Delaware Act, with respect to the
legal effect of the Merger, all of the contracts, agreements, instruments and
obligations to which the Terminating Corporation is a party or by which it is
bound shall be automatically assumed by and become binding upon the Surviving
Corporation. Without limiting the generality of the foregoing, the Surviving
Corporation shall satisfy all obligations on the part of the Terminating
Corporation to issue securities to holders of options or rights to purchase
such securities by means of granting or issuing of options or rights to
purchase substantially equivalent securities of the Surviving Corporation as
provided in Section 8(ii) above. In addition, the Surviving Corporation, and
by their approval hereof, its stockholders, hereby adopt and approve each of
the Terminating Corporation's equity compensation and nonmandatory employee
benefit plans (the "PLANS") which Plans shall have terms, conditions and
provisions on the Effective Date which are substantially identical to those
in effect for the Terminating Corporation immediately prior to the Effective
Date, excepting only that appropriate references to equity securities of the
Surviving Corporation shall be substituted throughout the text of such plans
wherever there were previously references to equity securities of the
Terminating Corporation.
11. REPRESENTATIONS OF THE TERMINATING CORPORATION AND THE SURVIVING
CORPORATION. The Terminating Corporation and the Surviving Corporation each
hereby represents and warrants that (i) it is not a party, jointly or
severally, to any contract or agreement, the terms of which
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would be violated or breached by it upon execution and consummation of this
Plan and Agreement of Merger, or (ii) appropriate waivers of all such
agreements have been obtained. In addition, the Terminating Corporation and
the Surviving Corporation each hereby represents and warrants that this Plan
and Agreement of Merger is enforceable against each of the respective
corporations in accordance with its terms.
12. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Terminating Corporation and of the Surviving Corporation contained in
this or any other instrument delivered by or on behalf of any of them are
true and correct now, and will be true and correct on the Effective Date with
the same force and effect as if made on and as of said date.
13. ENTIRE AGREEMENT. This Plan and Agreement of Merger constitutes the
entire agreement by and between the parties hereto with respect to the
matters herein contemplated. This Plan and Agreement of Merger supersedes all
previous agreements, negotiations and commitments in respect thereto. This
Plan and Agreement of Merger shall not be changed or modified in any manner,
except by mutual consent in a writing of subsequent date signed by the duly
authorized representatives of each party hereto.
14. FURTHER ASSURANCES. Following the receipt of all required approvals
of this Plan and Agreement of Merger by the respective stockholders of the
parties, as applicable, each of the parties hereto shall immediately execute
and deliver to the other party hereto and file with appropriate governmental
authorities such instruments as may be reasonably required in connection with
the consummation of the Merger contemplated hereby.
15. BINDING EFFECT. This Plan and Agreement of Merger shall be binding
upon and inure to the benefit of all the parties hereto and their respective
successors in interest.
16. MISCELLANEOUS. Paragraph headings do not form a part of this Plan
and Agreement of Merger, but are for convenience of reference only and shall
not limit or affect in any way the meaning or interpretation hereof. The
failure of either party to enforce any of the provisions hereof shall not
waive or limit the right of such party thereafter to strictly enforce such
provision, or of the right of such party thereafter to enforce each and every
provision hereof.
17. REVOCABILITY OF PLAN AND AGREEMENT. Anything herein or elsewhere to
the contrary notwithstanding, this Plan and Agreement of Merger may be
terminated and abandoned either by the Board of Directors of the Terminating
Corporation or by the Board of Directors of the Surviving Corporation at any
time prior to the date of filing. Without limiting the generality of the
foregoing, this Plan and Agreement of Merger may be terminated and abandoned
by the Board of Directors, in its sole discretion, of the Terminating
Corporation if any shareholder of the Terminating Corporation retains his or
her or its dissenters' rights immediately prior to the Effective Date.
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IN WITNESS WHEREOF, the Terminating Corporation and the Surviving
Corporation, respectively, have caused this Plan and Agreement of Merger to
be executed and delivered by their respective executive officers, thereunto
duly authorized, effective as of this 14th day of March, 2000.
ATTEST: U.S. RealTel, Inc., an Illinois corporation
/s/ Xxxxx X. Xxxxxxx By: /s/ Jordan X. Xxxxxx
----------------------------- ----------------------------------------
Xxxxx X. Xxxxxxx, Secretary Jordan X. Xxxxxx, President
ATTEST: U.S. RealTel, Inc., a Delaware corporation
/s/ Xxxxx X. Xxxxxxx By: /s/ Jordan X. Xxxxxx
------------------------------ ----------------------------------------
Xxxxx X. Xxxxxxx, Secretary Jordan X. Xxxxxx, President
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