EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is
entered into on this 10th day of April, 2000 by and between
XXXXXXXX.XXX, INC., a Colorado corporation ("USARadio-Colorado")
and XXXXXXXX.XXX, INC., a Delaware corporation (hereinafter
referred to as "USARadio-Delaware").
RECITALS:
WHEREAS, USARadio-Colorado is a corporation duly organized
and existing under the laws of the State of Colorado;
WHEREAS, USARadio-Delaware is a corporation duly organized
and existing under the laws of the State of Delaware;
WHEREAS, on the date hereof, the authorized capital of
USARadio-Colorado consists of Twenty Million (20,000,000) shares
of common stock, no par value per share ("USARadio-Colorado
Common Stock"), of which 13,516,720 shares are issued and
outstanding;
WHEREAS, on the date hereof, the authorized capital of
USARadio-Delaware consists of (A) Thirty Million (30,000,000)
shares of common stock, par value $.001 per share ("USARadio-
Delaware Common Stock"), of which 100 shares are issued and
outstanding and (B) Five Million (5,000,000) shares of preferred
stock, par value $0.001 per share, of which no shares are issued
and outstanding;
WHEREAS, the respective Boards of Directors of USARadio-
Colorado and USARadio-Delaware have determined that it is
advisable and in the best interests of each such corporation that
USARadio-Colorado merge with and into USARadio-Delaware upon the
terms and subject to the conditions of this Merger Agreement for
the purpose of effecting the reincorporation of USARadio-Colorado
in the State of Delaware, and the respective Boards of Directors
of USARadio-Colorado and USARadio-Delaware have, by resolutions
duly adopted, approved and adopted this Merger Agreement; and
WHEREAS, the parties intend by this Merger Agreement to
effect a "reorganization" under Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements contained herein, the
parties hereto agree as follows:
AGREEMENTS:
A. Merger. At the Effective Time (as hereinafter defined),
USARadio-Colorado shall be merged with and into USARadio-Delaware
(the "Merger"). USARadio-Delaware shall be the surviving
corporation of the Merger (hereinafter sometimes referred to as
the "Surviving Corporation"), and the separate corporate
existence of USARadio-Colorado shall cease. The Merger shall
become effective upon the filing of a Certificate of Merger with
the Secretary of State of the State of Delaware and the Secretary
of State of the State of Colorado. The date and time when the
Merger shall become effective is herein referred to as the
"Effective Time."
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B. Governing Documents.
1. The Certificate of Incorporation of USARadio-Delaware as it
may be amended or restated subject to applicable law, and as in
effect immediately prior to the Effective Time, shall constitute
the Certificate of Incorporation of the Surviving Corporation
without further change or amendment until thereafter amended in
accordance with the provisions thereof and applicable law.
2. The Bylaws of USARadio-Delaware as in effect immediately
prior to the Effective Time shall constitute the Bylaws of the
Surviving Corporation without change or amendment until
thereafter amended in accordance with the provisions thereof and
applicable law.
C. Officers and Directors. The persons who are officers and
directors of USARadio-Colorado immediately prior to the Effective
Time shall, after the Effective Time, be the officers and
directors of the Surviving Corporation, without change until
their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of
Incorporation and Bylaws and applicable law.
D. Rights, Privileges, Etc. At the Effective Time, the
separate corporate existence of USARadio-Colorado shall cease,
and the Surviving Corporation shall possess all the rights,
privileges, powers and franchises of a public or private nature
and be subject to all the restrictions, disabilities and duties
of USARadio-Colorado; and all the rights, privileges, powers and
franchises of USARadio-Colorado on whatever account, as well for
share subscriptions and all other things in action, shall be
vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other
interest shall be thereafter as effectively the property of the
Surviving Corporation as the same were of USARadio-Colorado, and
the title to any real estate vested by deed or otherwise shall
not revert or be in any way impaired by reason of the Merger, but
all rights of creditor and liens upon any property of USARadio-
Colorado shall be reserved unimpaired, and all debts, liabilities
and duties of USARadio-Colorado shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred
or contracted by it; provided, however, that such liens upon
property of USARadio-Colorado will be limited to the property
affected thereby immediately prior to the Merger. All corporate
acts, plans, policies, agreements, arrangements, approvals and
authorizations of USARadio-Colorado, its stockholders, Board of
Directors and committees thereof, officers and agents which were
valid and effective immediately prior to the Effective Time,
shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the
Surviving Corporation, its stockholders, Board of Directors and
committees thereof, respectively, and shall be as effective and
binding thereon a the same were with respect to USARadio-
Colorado.
E. Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder
thereof:
1. Each share of USARadio-Colorado Common Stock outstanding
immediately prior to the Effective Time shall, except as provided
in Section 8 hereof, be converted into, and shall become, one
fully paid and nonassessable share of USARadio-Delaware Common
Stock.
2. Each share of USARadio-Colorado Common Stock held in the
treasury of USARadio-Colorado immediately prior to the Effective
Time shall be automatically converted into one share of USARadio-
Delaware Common Stock, which shares shall continue to be retained
and held by USARadio-Delaware in the treasury thereof.
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3. Each option, warrant, purchase right, convertible debt
instrument or other security of USARadio-Colorado issued and
outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be an identical security of
USARadio-Delaware, and the same number of shares of USARadio-
Delaware Common Stock shall be reserved for purposes of the
exercise of such option, warrant, purchase right, convertible
debt instrument or other securities as is equal to the number of
shares of USARadio-Colorado Common Stock so reserved at the
Effective Time.
4. Each share of USARadio-Delaware Common Stock issued and
outstanding immediately prior to the Effective Time shall be
canceled and retired, and no payment shall be made with respect
thereto, and such shares shall resume the status of unauthorized
and unissued shares of USARadio-Delaware Common Stock.
F. Stock Certificates. At and after the Effective Time, all
of the outstanding certificates which immediately prior to the
Effective Time represented shares of USARadio-Colorado Common
Stock shall be deemed for all purposes to evidence ownership of,
and to represent shares of, USARadio-Delaware Common Stock into
which the shares of USARadio-Colorado Common Stock formerly
represented by such certificates have been converted as herein
provided. The registered owner on the books and records of
USARadio-Colorado or its transfer agent of any such outstanding
stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be entitled
to exercise any voting or other rights with respect to and to
receive any dividends and other distributions upon the shares of
USARadio-Delaware Common Stock evidenced by such outstanding
certificate as above provided.
G. Employee Benefit Plans. As of the Effective Time, the
Surviving Corporation hereby assumes all obligations of USARadio-
Colorado under any and all employee benefit plans in effect as of
the Effective Time or with respect to which employee rights or
accrued benefits are outstanding as of the Effective Time.
H. Dissenting Stockholders.
1. Notwithstanding the provisions of Section 5.a. hereof, any
outstanding shares of USARadio-Colorado Common Stock held by a
stockholder who shall have elected to dissent from the Merger and
who shall have exercised and perfected his right to dissent with
respect to such shares in accordance with Article 113 of the
Colorado Business Corporation Act (a "Dissenting Stockholder")
shall not be converted into shares of USARadio-Delaware Common
Stock as a result of the Merger, but such Dissenting Stockholders
shall be entitled to receive in lieu thereof only such
consideration as shall be provided in such Article 113, except
that shares of USARadio-Colorado Common Stock outstanding
immediately prior to the Effective Time and held by a Dissenting
Stockholder who shall thereafter withdraw his election to dissent
from the Merger or lose his right to dissent from the Merger as
provided in such Article 113 shall be deemed converted, as of the
Effective Time, into such number of shares of USARadio-Colorado
Common Stock as such holder otherwise would have been entitled to
receive as a result of the Merger.
2. USARadio-Delaware hereby agrees that it may be served with
process in the State of Colorado in any proceeding to enforce any
obligation or the rights of a Dissenting Stockholder arising from
the Merger. USARadio-Delaware appoints the Secretary of State of
Colorado as its agent to accept service of process for any such
proceeding and a copy of such process shall be
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mailed by the Secretary of State of the State of Colorado to
USARadio-Delaware at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attention: Corporate Secretary.
I. Governing Law. This Merger Agreement shall be governed by
and construed in accordance with the laws of the State of
Delaware.
J. Amendment. Subject to applicable law and subject to the
rights of USARadio-Colorado's stockholders further to approve any
amendment which would have a material adverse effect on such
stockholders, this Merger Agreement may be amended, modified or
supplemented by written agreement of the parties hereto at any
time prior to the Effective Time with respect to any of the terms
contained herein.
K. Deferral or Abandonment. At any time prior to the
Effective Time, this Merger Agreement may be terminated and the
Merger may be abandoned or the time of consummation of the Merger
may be deferred for a reasonable time by the Board of Directors
of either USARadio-Colorado or USARadio-Delaware or both,
notwithstanding approval of this Merger Agreement by the
stockholders of USARadio-Colorado or the stockholders of USARadio-
Delaware, or both, if circumstances arise which, in the opinion
of the Board of Directors of USARadio-Colorado or USARadio-
Delaware, make the Merger inadvisable or such deferral of the
time of consummation thereof advisable.
L. Counterparts. This Merger Agreement may be executed in any
number of counterparts, each of which shall constitute an
original document but all of which together shall constitute one
and the same Agreement.
M. Further Assurances. From time to time, as and when
required or requested by either USARadio-Colorado or USARadio-
Delaware, as applicable, or by its respective successors and
assigns, there shall be executed and delivered on behalf of the
other corporation, or by its respective successors and assigns,
such deeds, assignments and other instruments, and there shall be
taken or caused to be taken by it all such further and other
action, as shall be appropriate or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving
Corporation the title to and possession of all property,
interests, assets, rights, privileges, immunities, powers,
franchise and authority of USARadio-Colorado and otherwise to
carry out the purposes of this Merger Agreement, and the officers
and directors of each corporation are fully authorized in the
name and on behalf of such corporation or otherwise, to take any
and all such action and to execute and deliver any and all such
deeds, assignments and other instruments.
IN WITNESS WHEREOF, USARadio-Colorado and USARadio-Delaware
have caused this Merger Agreement to be signed by their
respective duly authorized officers and delivered this 10th day
of April, 2000.
XXXXxxxx.xxx, Inc.
a Colorado corporation
/s/ XXXX XXXXXXX
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By: Xxxx Xxxxxxx
Its: Vice President
XXXXxxxx.xxx, Inc.
a Delaware corporation
/s/ XXXXXX XXXXXX XXXXXXX
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By: Xxxxxx Xxxxxx Xxxxxxx
Its: President
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