AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") dated June 29,
2001, is by and among USA BROADBAND, INC., a Delaware corporation, whose
principal business address is 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ("SUBSIDIARY"), and OPTIKA INVESTMENT COMPANY, INC., a
Nevada corporation whose principal business address is 0000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (the "COMPANY").
WHEREAS, this Agreement is executed to facilitate the merger of the
Company with and into Subsidiary, a wholly-owned subsidiary of the Company, with
the Subsidiary being the surviving corporation (the "MERGER"), and the change of
Company's domicile to, and reincorporation of the Company in, the State of
Delaware.
WHEREAS, the boards of directors of the Company and Subsidiary and the
shareholders of both the Company and Subsidiary have approved this Agreement and
the consummation of the transactions contemplated hereby on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises,
representations, and warranties herein contained, and on the terms and subject
to the conditions herein set forth, the parties hereto agree as follows:
1. EFFECTIVE DATE OF THE MERGER. Upon the execution of this Agreement
and upon the later of the filing of a Certificate of Merger with the Secretary
of State of the State of Delaware and Articles of Merger with the Secretary of
State of the State of Nevada (the "EFFECTIVE DATE"), the Company will be merged
with and into Subsidiary, with Subsidiary being the surviving corporation.
2. EFFECTS OF THE MERGER. On the Effective Date, the separate existence
of the Company shall cease and the Company shall be merged with and into
Subsidiary, which shall be the surviving corporation (the "SURVIVING
CORPORATION"); the certificate of incorporation of the Subsidiary shall be the
certificate of incorporation of the Surviving Corporation after the Effective
Date, and thereafter may be amended in accordance with its terms and as provided
by applicable law; the bylaws of the Subsidiary as in effect on the Effective
Date shall be the bylaws of Surviving Corporation, and thereafter may be amended
in accordance with the terms thereof and as provided by applicable law; and the
Merger shall, from and after the Effective Date, have all the effects provided
by applicable law.
3. COMPANY SHARES. At the Effective Date, each share of common stock of
the Company will be converted into and become one share of Common Stock, $.001
par value, of the Surviving Corporation. All Company shares, when so converted,
shall no longer be outstanding and shall automatically be canceled and retired
and each holder of a stock certificate representing any Company shares shall
cease to have any rights with respect thereto, except the right to receive
Common Stock of the Surviving Company or dissenters' rights, as provided by
Sections 92A.380 to 92A.500, inclusive, of the Nevada General Corporation Law.
As of the Effective Date, and except for the shares of the Surviving Company's
Common Stock to be
issued in the Merger, all other currently issued and outstanding shares of the
Subsidiary's Common Stock shall be cancelled and no longer be issued and
outstanding.
4. TAX CONSEQUENCES. It is the intent of the parties that the Merger
will constitute a "reorganization" within the meaning of sections 368(a)(1)(A)
of the Internal Revenue Code of 1986, as amended (the "CODE") and the parties
shall treat and report the transactions consistently with this intention for all
purposes.
5. MISCELLANEOUS. This Agreement (i) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof, and (ii) shall be governed in all respects, including validity,
interpretation, and effect, by the laws of the State of Delaware, without giving
effect to the provisions thereof relating to conflicts of law.
6. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
IN WITNESS HEREOF, Subsidiary and the Company have each caused this
Agreement and Plan of Merger to be signed by their respective officers thereunto
duly authorized as of the date first written above.
OPTIKA INVESTMENT COMPANY, INC.
/s/ Xxxxxx X. Xxxxxx
------------------------------------------------
By: Xxxxxx X. Xxxxxx
---------------------------------------------
Its: Executive Vice President and Director
---------------------------------------------
USA BROADBAND, INC.
/s/ Xxxxxx X. Xxxxxx
------------------------------------------------
By: Xxxxxx X. Xxxxxx
---------------------------------------------
Its: Secretary and Director
---------------------------------------------
