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EXHIBIT 10.70
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AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated as of February 1, 2000 (the "Merger Agreement"),
by and among USURF America, Inc., a Nevada corporation ("Parent"),
CyberHighway, Inc., an Idaho corporation ("Acquiror"), and The Spinning
Wheel, Inc., d/b/a CyberHighway of Bear River Valley, an Idaho corporation
("Target") (Acquiror and Target being hereinafter collectively referred to
as the "Constituent Corporations").
WHEREAS, prior to the execution of this Merger Agreement, Parent, Acquiror
and Target have entered into an Agreement and Plan of Reorganization dated
as of October 26, 1999 (the "Plan of Reorganization"), providing for
certain representations, warranties and agreements in connection with the
transaction contemplated; and
WHEREAS, the Board of Directors of Parent, Acquiror and Target have
approved the acquisition of Target by Acquiror; and
WHEREAS, the Boards of Directors of Parent, Acquiror and Target have
approved the merger of Target into Acquiror (the "Merger") upon the terms
and subject to the conditions set forth herein and in the Plan of
Reorganization; and
WHEREAS, for Federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization with the meaning of Section 368(a)(1)(A)
and 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Parent, Acquiror and Target agree as follows:
ARTICLE I. THE MERGER
Section 1.1. The Merger. (a) At the Effective Time (as defined in
Section 1.2) and subject to the terms and conditions of this Merger
Agreement and the Plan of Reorganization, Target shall be merged into
Acquiror and the separate existence of Target shall thereupon cease, in
accordance with the applicable provisions of the Idaho Business Corporation
Act (the "Idaho Law").
(b) Acquiror will be the surviving corporation in the Merger (sometimes
referred to herein as the "Surviving Corporation") and will continue to be
governed by the laws of the State of Idaho, and the separate corporate
existence of Acquiror and all of its rights, privileges, immunities and
franchises, public or private, and all its duties and liabilities as a
corporation organized under the laws of the State of Idaho will continue
unaffected by the Merger.
(c) The Merger will have the effects specified by the Idaho Law.
Section 1.2. Effective Time. As soon as practicable following
fulfillment or waiver of the conditions specified in Article 1.2 of the
Plan of Reorganization and provided that this Merger Agreement has not been
terminated or abandoned pursuant to Article IV hereof, the Constituent
Corporations will cause a Certificate of Merger (the "Certificate of
Merger") to be filed with the office of the Secretary of State of Idaho, as
provided in the Idaho Law. Subject to and in accordance with the Idaho
Law, the Merger will become effective at the date and time the Certificate
of Merger is filed with the office of the Secretary of State of Idaho, or
such later time or date as may be specified in the Certificate of Merger
(the "Effective Time").
ARTICLE II. THE SURVIVING CORPORATION
Section 2.1. Articles of Incorporation. The Articles of Incorporation of
Acquiror as in effect immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation after the Effective
Time.
Section 2.2. Bylaws. The Bylaws of Acquiror as in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving
Corporation after the Effective Time.
Section 2.3. Board of Directors. From and after the Effective Time, the
Board of Directors of Acquiror shall be the Board of Directors of the
Surviving Corporation.
ARTICLE III. CONVERSION OF SHARES
Section 3.1. Conversion of Target Shares in the Merger. Pursuant to this
Merger Agreement, at the Effective Time, by virtue of the Merger and
without any action on the part of any holder of any capital stock of Target:
(a) all shares of Target (the "Target Common Stock") owned by Parent or
any subsidiary of Parent or Target shall be cancelled and shall cease to
exist from and after the Effective Time; and
(b) each remaining issued and outstanding Target share shall be converted
into, and become exchangeable for 604.95 shares of the $.0001 par value per
share common stock of Parent (the "Parent Common Stock"), a total of 81,063
shares of Parent Common Stock. The consideration referred to in this
Section 3.1(b) is hereinafter referred to as the "Merger Consideration".
Section 3.2. Status of Acquiror Shares. At the Effective Time, by virtue
of the Merger and without any action on the part of any holder of any
capital stock of Acquiror, each issued and outstanding share of common
stock of Acquiror shall continue unchanged and remain outstanding as a
share of common stock of the Surviving Corporation.
Section 3.3. Exchange of Target Common Stock Certificates. As soon as
practicable after the Effective Time, Parent shall cause the exchange of
Target Common Stock for Parent Common Stock (as required in Section 3.1(b)
herein and Section 1.6 of the Plan of Reorganization) to occur. Shares of
Parent Common Stock into which shares of Target Common Stock shall be
converted in the Merger shall be deemed to have been issued at the
Effective Time.
ARTICLE IV. TERMINATION AND AMENDMENT
Section 4.1. Termination. This Merger Agreement shall terminate in the
event of, and upon termination of, the Plan of Reorganization.
Section 4.2. Amendments. This Merger Agreement may be amended by the
parties hereto, at any time before or after approval hereof by the
shareholders of Target, but, after any such approval, no amendment shall be
made which (a) changes the ratio at which Target Common Stock is to be
converted into Parent Common Stock pursuant to Section 3.1, (b) in any way
materially adversely affects the rights of holders of Target Common Stock
or (c) changes in any of the principal terms of this Merger Agreement, in
each case, without the further approval of such shareholder. This Merger
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
Section 4.3. Waiver. At any time prior to the Effective Time, the
parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto and (c) waive compliance with any of
the agreements or conditions contained herein. Any agreement on the part
of a party hereto to any such extension or waiver shall be valid if set
xxxx in an instrument in writing signed on behalf of such party.
Section 4.4. Notices. All notices required to be given hereunder shall
be in writing and shall be deemed given when delivered in person or sent by
confirmed facsimile, or when received if given by Federal Express or other
nationally recognized overnight courier service, or five (5) business days
after being deposited in the United States mail, postage prepaid,
registered or certified mail, addressed to the applicable parties as follows:
(a) If to Parent or Acquiror:
USURF America, Inc.
CyberHighway, Inc.
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
with copies to:
Xxxxxx & Xxxxxx
Attorneys at Law
000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx 00000
(b) if to Target:
Diggs X. Xxxxx, Xx.
The Spinning Wheel, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
with copies to:
Xxxxxxx X. Xxxxxxx, Esquire
McGrath, Meacham, Xxxxxx & Xxxxx
414 Xxxxx
Xxxxx Xxxxx, Xxxxx 00000
Section 4.5. Arbitration. Any dispute arising under this Merger
Agreement shall be resolved by arbitration in Dallas, Texas, under the
Rules of the American Arbitration Association, as then in effect. The
determination and award of the arbitrator, which aware may include punitive
damages, shall be final and binding on the parties and may be entered as a
judgment in any court of competent jurisdiction. It is expressly agreed
that the arbitrators, as part of their award, can award attorneys' fees to
the prevailing party.
Section 4.6. Entire Agreement. This Merger Agreement and the Plan of
Reorganization constitute the entire agreement between the parties and
shall be binding upon and inure to the benefit of the parties hereto and
their respective legal representatives, successors and permitted assigns.
The parties and their respective affiliates make no representations or
warranties to each other, except as contained in the Plan of
Reorganization, and any and all prior representations and statements made
by any party or its representatives, whether verbally or in writing, are
deemed to have been merged into this Merger Agreement and the Plan of
Reorganization, it being intended that no such representations or
statements shall survive the execution and delivery of this Merger
Agreement and the Plan of Reorganization.
Section 4.7. Non-Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or
conditions of this Merger Agreement, to exercise any right or privilege
conferred in this Merger Agreement, or the waiver by said party of any
breach of any of the terms, covenants or conditions of this Merger
Agreement, shall not be construed as a subsequent waiver of any such terms,
covenants, conditions, rights or privileges, but the same shall continue
and remain in full force and effect as if no such forbearance or waiver had
occurred. No waiver shall be effective unless it is in writing and signed
by an authorized representative of the waiving party.
Section 4.8. Counterparts. This Merger Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
Section 4.9. Severability. The invalidity of any provision of this
Merger Agreement or portion of a provision shall not affect the validity of
any other provision of this Merger Agreement or the remaining portion of
the applicable provision.
Section 4.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Idaho applicable to
contracts executed in and to be performed in such State.
Section 4.11. Binding Effect; Benefit. This Merger Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
successors and permitted assigns. Nothing in this Merger Agreement,
express or implied, is intended to confer on any person other than the
parties hereto and their respective successors and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Merger Agreement, including, without limitation, third party beneficiary
rights.
Section 4.12. Assignability. This Merger Agreement shall not be
assignable by either party or by operation of law, except with the express
written consent of each other party.
Section 4.13. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, Parent, Acquiror and Target have executed this
Agreement of Merger on the date first above written.
PARENT: TARGET:
USURF AMERICA, INC. THE SPINNING WHEEL, INC.
d/b/a CyberHighway of Bear River Valley
By:/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxxxx
Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxxx
Its: President Its: President
ACQUIROR:
CYBERHIGHWAY, INC.
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Its: President
