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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made this 27TH day of
March, 1998 by and between U.S. On-Line Cable, L.L.C. ("On-Line Cable"), a Texas
limited liability company, and U.S. OnLine Communications L.L.C. ("OnLine
Communications"), a Washington limited liability company (collectively, the
"Companies").
WHEREAS, the Board of Managers of the Companies have determined that it is
advisable that On-Line Cable be merged with and into OnLine Communications (the
"Merger");
WHEREAS, On-Line Cable is a limited liability company duly organized and
existing under the laws of the State of Texas, having been organized on May 11,
1994;
WHEREAS OnLine Communications is a limited liability company duly organized
and existing under the laws of the State of Washington, having been organized on
June 21, 1995;
NOW, THEREFORE, the parties hereto agree that On-Line Cable shall be merged
with and into OnLine Communications and that the terms and conditions of the
Merger shall be as follows:
I
Legal Certification
Upon the approval of the members of the Companies, Articles of Merger in
substantially the form annexed hereto as Exhibit A shall be executed in
duplicate by each limited liability company and shall be delivered to the
Secretary of State of the State of Washington and the Secretary of State of the
State of Texas for filing. The Managers and officers of the Companies are
authorized to execute and deliver Articles of Merger for filing with such
Secretaries of State, and to execute and deliver such other certificates,
documents and agreements, and to take such other action, as they deem necessary
or desirable to accomplish the Merger.
II
Effective Date of the Merger
Upon filing of the Articles of Merger with the Secretary of State of the
State of Washington and the Secretary of State of the State of Texas (the
"Effective Date"), this Agreement and the Merger contemplated herein shall be
effective; On-Line Cable (the "Disappearing Company") shall be merged with and
into OnLine Communications and the separate existence of the Disappearing
Company shall cease. OnLine Communications (the "Surviving Company") shall
continue its limited liability company existence under the laws of
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the State of Washington. Upon the Effective Date of the Merger contemplated
herein, all of the outstanding equity interests of On-Line Cable, and the
percentage interests of any of its members represented thereby, shall be
canceled without further action on the part of On-Line Cable or its members.
III
Managers
The managers of OnLine Communications on the Effective Date of the Merger
shall continue as the managers of the Surviving Company until their resignation
or removal or until their respective successors are duly elected by the members
of the Surviving Company.
IV
Articles of Organization
The Articles of Organization of OnLine Communications in effect on the
Effective Date shall be the Articles of Organization of the Surviving Company
until the same shall be further altered, amended or repealed in the manner
provided therein and as prescribed by law, and the terms and provisions thereof
are hereby incorporated in this Agreement with the same force and effect as
though herein set forth in full.
V
Principal Office
The principal office of OnLine Communications in the State of Washington is
0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
VI
Effect of the Merger
The limited liability company existence of On-Line Cable, with all its
purposes, power and objects, shall cease upon the Effective Date of the Merger.
All of On-Line Cable's privileges, immunities and franchises, both public and
private, all of its properties, real, personal and mixed, all of its debts due
on whatever account, all of its other choses-in-action, and all and every other
interest of, belonging to or due to On-Line Cable shall be taken by, transferred
to, and vested in OnLine Communications, as the Surviving Company, without
further act or deed as of the Effective Date, and the title to any real estate
or any interests therein shall not revert or be in any way impaired by reason of
this Merger.
The Surviving Company shall, as of the Effective Date, be responsible
and liable for all
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liabilities and obligations of On-Line Cable. Neither the rights of creditors
nor any liens upon the property of the Disappearing Company shall be impaired by
the Merger; provided, however, that all inter-company debts and obligations owed
by On-Line Cable and OnLine Communications to each other shall be canceled.
The Disappearing Company shall take or cause to be taken all action, or do
or cause to be done all things necessary or advisable and proper under all
applicable laws to consummate this Merger.
VII
Manner and Basis of Treating Outstanding Interests
The manner and basis of converting the outstanding interests of each
limited liability company into interests of the successor limited liability
company are as follows:
The members' interests in On-Line Cable as it exists immediately prior to
the Merger will be canceled as of the effective date of the Merger and no
interest in the Surviving Company will be issued in respect thereof. All
interests in OnLine Communication, as the Surviving Company, will remain
unchanged.
VIII
Approval of Members
The terms and conditions of the Merger were authorized and approved by the
members of each limited liability company by the requisite vote of its members
as set forth in its operating agreement or its regulations.
IX
Exclusivity of the Agreement
This Agreement embodies the entire understanding of the parties with
respect to the subject matter hereof and may not be modified except in a writing
duly executed by each of the parties hereto. No waiver of any rights hereunder
shall be effective unless in writing and duly executed by the waiving party.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together will constitute one and
the same instrument.
IN WITNESS WHEREOF, each party has caused this Agreement to be signed in
its name and on its behalf by its authorized person. Each authorized person
acknowledges this Agreement to be the act and deed of the limited liability
company on whose behalf the authorized person has executed this Agreement and,
under the penalties of perjury, certifies that the matters and facts
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set forth herein are true in all material respects to the best of that person's
knowledge, information and belief.
U.S. OnLine Communications, L.L.C. U.S. On-Line Cable, L.L.C.
By: By:
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Its Its
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EXHIBIT A
ARTICLES OF MERGER OF
U.S. ONLINE COMMUNICATIONS L.L.C., A WASHINGTON LIMITED LIABILITY COMPANY
AND
U.S. ON-LINE CABLE, L.L.C., A TEXAS LIMITED LIABILITY COMPANY
THESE ARTICLES OF MERGER are executed for the purpose of merging U.S.
On-Line Cable, L.L.C. a Texas limited liability company (the "Disappearing
Company") with and into U.S. OnLine Communications L.L.C., a Washington limited
liability company (the "Surviving Company"). The name of the surviving company
in the merger is U.S. OnLine Communications L.L.C., a Washington limited
liability company.
1) The Agreement and Plan of Merger is attached hereto and made a part
hereof.
2) The merger has been duly approved by the Members of each of the limited
liability companies pursuant to the provisions of the Washington Limited
Liability Company Act and the Texas Limited Liability Company Act.
3) U.S. OnLine Communications L.L.C. is the "parent entity" of U.S. On-Line
Cable, L.L.C. as set forth in Article 10.05 of the Texas Limited Liability
Company Act. U.S. On-Line Cable, L.L.C. has one class of membership interests,
99.09% of which are owned by U.S. OnLine Communications L.L.C.
4) The members of U.S. OnLine Communications L.L.C. duly approved the
Agreement and Plan of Merger on March __, 1998, pursuant to the following
resolution:
RESOLVED, that the Agreement and Plan of Merger (the "Merger
Agreement") presented to the members of the Company, pursuant to which
Merger Agreement U.S. On-Line Cable, L.L.C., a Texas limited liability
company ("Cable") will be merged with and into the Company, is hereby
authorized and approved. Each of the managers, the CEO, the President and
the Secretary of the Company (the "Authorized Officers") are hereby
authorized and directed to take any and all such action as they deem
necessary or desirable to consummate the transactions contemplated in the
Merger Agreement, subject to the receipt of such third party consents as
such managers and Authorized Officers deem necessary or advisable prior to
the consummation of such transactions. Without limiting the generality of
the forgoing, each of the managers and each of such officers are hereby
authorized and directed to execute, deliver and cause the Company to
perform the Merger Agreement, to execute and deliver for filing to the
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Washington Secretary of State and the Texas Secretary of State Articles of
Merger, and to take any and all such action as any of such managers and
officers deem necessary or advisable to cause the Company to consummate the
transactions contemplated in the Merger Agreement.
5) Article VII of the Agreement and Plan of Merger sets forth the manner
and basis under which membership interests of the Disappearing Company will be
treated.
6) The address of the principal office of the Surviving Company in the
State of Washington is 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000.
Dated: _____________, 1998.
U.S. ON-LINE CABLE, L.L.C.,
a Texas limited liability company
By:
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Its
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U.S. ONLINE COMMUNICATIONS L.L.C.,
a Washington limited liability company
By:
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Its
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