**Exhibit10.4**

 

**AGREEMENTAND PLAN OF MERGER**

 

This AGREEMENTAND PLAN OF MERGER (hereinafter called this “*Agreement*”), dated as of October 4, 2004, isentered into between Reva, Inc., a public company incorporated in the State ofColorado (the “*Company*”)and Blue Wireless & Data, Inc., a Delaware corporation and a wholly ownedsubsidiary of the Company (“*Blue*”).

 

RECITALS

 

WHEREAS, theboard of directors of each of the Company and Blue deems it advisable, upon theterms and subject to the conditions herein stated, that the Company be mergedwith and into Blue, and that Blue be the surviving corporation (the “*Reincorporation Merger*”); and

 

WHEREAS, theCompany will submit this Agreement for approval by separate vote of the holdersof shares of common stock, $0.01 par value, of the Company (“*common stock*”),

 

NOW,THEREFORE, in consideration of the premises and of the agreements of theparties hereto contained herein, the parties hereto agree as follows:

 

ARTICLE I

 

THEREINCORPORATION MERGER; EFFECTIVE TIME

 

1.1.*    The Reincorporation Merger.*    Uponthe terms and subject to the conditions set forth in this Agreement, at theEffective Time (as defined in Section 1.2), the Company shall be mergedwith and into Blue whereupon the separate existence of the Company shall cease.Blue shall be the surviving corporation (sometimes hereinafter referred to asthe “*Surviving Corporation*”)in the Reincorporation Merger and shall continue to be governed by the laws ofthe State of Delaware. The Reincorporation Merger shall have the effectsspecified in the General Corporation Law of the State of Delaware, as amended(the “*DGCL*”) and in theColorado Business Corporation Act, as amended (the “*CBCA*”) and the Surviving Corporationshall succeed, without other transfer, to all of the assets and property(whether real, personal or mixed), rights, privileges, franchises, immunitiesand powers of the Company, and shall assume and be subject to all of theduties, liabilities, obligations and restrictions of every kind and descriptionof the Company, including, without limitation, all outstanding indebtedness ofthe Company.

 

1.2.*    Effective Time.*    Providedthat the condition set forth in Section 5.1 has been fulfilled or waivedin accordance with this Agreement and that this Agreement has not beenterminated or abandoned pursuant to Section 6.1, on the date of theclosing of the Reincorporation Merger, the Company and Blue shall causeArticles of Merger to be executed and filed with the Secretary of State ofColorado (the “*Colorado Articles of*

 

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*Merger*”)and a Certificate of Merger to be executed and filed with the Secretary ofState of Delaware (the “*DelawareCertificate of Merger*”). The Reincorporation Merger shall becomeeffective upon the date and time specified in the Colorado Articles of Mergerand the Delaware Certificate of Merger (the “*Effective Time*”).

 

ARTICLE II

 

CHARTER ANDBYLAWS OF THE SURVIVING CORPORATION

 

2.1.*    The Certificate ofIncorporation.*    The certificate ofincorporation of Blue in effect at the Effective Time shall be the certificateof incorporation of the Surviving Corporation, until amended in accordance withthe provisions provided therein or applicable law.

 

2.2.*    The Bylaws.*    Thebylaws of Blue in effect at the Effective Time shall be the bylaws of theSurviving Corporation, until amended in accordance with the provisions providedtherein or applicable law.

 

ARTICLE III

 

OFFICERS ANDDIRECTORS OF THE SURVIVING CORPORATION

 

3.1.*    Officers.*    Theofficers of the Company at the Effective Time shall, from and after theEffective Time, be the officers of the Surviving Corporation, until theirsuccessors have been duly elected or appointed and qualified or until theirearlier death, resignation or removal.

 

3.2.*    Directors.*    Thedirectors of the Company at the Effective Time shall, from and after theEffective Time, be the directors of the Surviving Corporation, until theirsuccessors have been duly elected or appointed and qualified or until theirearlier death, resignation or removal.

 

ARTICLE IV

 

EFFECT OFMERGER ON CAPITAL STOCK

 

4.1.*    Effect of Merger on CapitalStock.*    At the Effective Time, as a result ofthe Reincorporation Merger and without any action on the part of the Company,Blue or the shareholders of the Company:

 

(a)   Each share of commonstock (other than shares (“*DissentingShares*”) that are owned by shareholders (“*Dissenting Shareholders*”) exercisingdissenters’ rights pursuant to Article 113 of the CBCA), issued and outstanding immediately prior to the EffectiveTime shall be converted (without the surrender of stock certificates or anyother action) into one fully paid and non-assessable share of common stock, parvalue $0.01, of Blue (“*Delaware commonstock*”), with the

 

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same rights, powers and privileges as the shares so converted and allshares of common stock shall be cancelled and retired and shall cease to exist.

 

(b)   Each option, warrant orother security of the Company issued and outstanding immediately prior to theEffective Time shall be (i) converted into and shall be an identicalsecurity of Blue, and (ii) in the case of securities to acquire commonstock, converted into the right to acquire the same number of shares ofDelaware common stock as the number of shares of common stock that wereacquirable pursuant to such option, warrant or other security. The same numberof shares of Delaware common stock shall be reserved for purposes of theexercise of such options, warrants or other securities as is equal to thenumber of shares of the common stock so reserved as of the Effective Time.

 

(d)   Each share of Delawarecommon stock owned by the Company shall no longer be outstanding and shall becancelled and retired and shall cease to exist.

 

4.2.*    Certificates.*    Atand after the Effective Time, all of the outstanding certificates whichimmediately prior thereto represented shares of common stock (other thanDissenting Shares), options, warrants or other securities of the Company shallbe deemed for all purposes to evidence ownership of and to represent the sharesof the respective Delaware common stock, options, warrants or other securitiesof Blue, as the case may be, into which the shares of common stock, options,warrants or other securities of the Company represented by such certificateshave been converted as herein provided and shall be so registered on the booksand records of the Surviving Corporation or its transfer agent. The registeredowner of any such outstanding certificate shall, until such certificate shallhave been surrendered for transfer or otherwise accounted for to the SurvivingCorporation or its transfer agent, have and be entitled to exercise any votingand other rights with respect to, and to receive any dividends and otherdistributions upon, the shares of Delaware common stock, options, warrants orother securities of Blue, as the case may be, evidenced by such outstandingcertificate, as above provided.

 

4.3*    Dissenters’ Rights.*    NoDissenting Shareholder shall be entitled to shares of Delaware common stockunder this Article IV unless and until the holder thereof shall havefailed to perfect or shall have effectively withdrawn or lost such holder’sright to dissent from the Reincorporation Merger under the CBCA, and anyDissenting Shareholder shall be entitled to receive only the payment providedby Article 113 of the CBCA with respect to Dissenting Shares owned by suchDissenting Shareholder. If any person or entity who otherwise would be deemed aDissenting Shareholder shall have failed to properly perfect or shall haveeffectively withdrawn or lost the right to dissent with respect to any shareswhich would be Dissenting Shares but for that failure to perfect or withdrawalor loss of the right to dissent, such Dissenting Shares shall thereupon betreated as though such Dissenting Shares had been converted into shares ofDelaware common stock pursuant to Section 4.1 hereof.

 

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ARTICLE V

 

CONDITION

 

5.1.*    Condition to Each Party’sObligation to Effect the Reincorporation Merger.*    Therespective obligation of each party hereto to effect the Reincorporation Mergeris subject to receipt prior to the Effective Time of the requisite approval ofthis Agreement and the transactions contemplated hereby by the holders ofcommon stock pursuant to the CBCA and the Articles of Incorporation of theCompany.

 

ARTICLE VI

 

TERMINATION

 

6.1.*    Termination.*    ThisAgreement may be terminated, and the Reincorporation Merger may be abandoned,at any time prior to the Effective Time, whether before or after approval ofthis Agreement by the shareholders of the Company, if the board of directors ofthe Company determines for any reason, in its sole judgment and discretion,that the consummation of the Reincorporation Merger would be inadvisable or notin the best interests of the Company and its shareholders. In the event of thetermination and abandonment of this Agreement, this Agreement shall become nulland void and have no effect, without any liability on the part of either theCompany or Blue, or any of their respective shareholders, directors or officers.

 

ARTICLE VII

 

MISCELLANEOUSAND GENERAL

 

7.1.*    Modification or Amendment.*    Subjectto the provisions of applicable law, at any time prior to the Effective Time,the parties hereto may modify or amend this Agreement; provided, however, thatan amendment made subsequent to the approval of this Agreement by the holdersof common stock shall not (i) alter or change the amount or kind of sharesand/or rights to be received in exchange for or on conversion of all or any ofthe shares or any class or series thereof of such corporation, (ii) alteror change any provision of the certificate of incorporation of the SurvivingCorporation to be effected by the Reincorporation Merger, or (iii) alteror change any of the terms or conditions of this Agreement it such alterationor change would adversely affect the holders of any class or series of capitalstock of any of the parties hereto.

 

7.2.*    Counterparts.*    ThisAgreement may be executed in any number of counterparts, each such counterpartbeing deemed to be an original instrument, and all such counterparts shalltogether constitute the same agreement.

 

7.3.*    GOVERNING LAW.*    THISAGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BEINTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THESTATE

 

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OF DELAWARE WITHOUT REGARD TO THE CONFLICT OFLAW PRINCIPLES THEREOF.

 

7.4.*    Entire Agreement.*    ThisAgreement constitutes the entire agreement and supercedes all other prioragreements, understandings, representations and warranties, both written andoral, among the parties, with respect to the subject matter hereof.

 

7.5.*    No Third Party Beneficiaries.*    ThisAgreement is not intended to confer upon any person other than the partieshereto any rights or remedies hereunder.

 

7.6.*    Severability.*    Theprovisions of this Agreement shall be deemed severable and the invalidity orunenforceability of any provision shall not affect the validity orenforceability of the other provisions hereof. If any provision of this Agreement,or the application thereof to any person or any circumstance, is determined byany court or other authority of competent jurisdiction to be invalid orunenforceable, (a) a suitable and equitable provision shall be substitutedtherefor in order to carry out, so far as may be valid and enforceable, theintent and purpose of such invalid or unenforceable provision and (b) theremainder of this Agreement and the application of such provision to otherpersons or circumstances shall not be affected by such invalidity orunenforceability, nor shall such invalidity or unenforceability affect thevalidity or enforceability of such provision, or the application thereof, inany other jurisdiction.

 

7.7.*    Headings.*    Theheadings therein are for convenience of reference only, do not constitute partof this Agreement and shall not be deemed to limit or otherwise affect any ofthe provisions hereof.

 

[SIGNATUREPAGE FOLLOWS]

 

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IN WITNESS WHEREOF, this Agreement has beenduly executed and delivered by the duly authorized officers of the partieshereto as of the date first written above. 

 
|   | **Reva, Inc.**a Colorado corporation                     |
|--------|----------------------------------------------------------|
|   | ** **                                               |
|   | By                                                       | /s/ Dennis  G. McLaughlin, III |   |
|   |                                                     | Name: Dennis G. McLaughlin, III |
|   |                                                     | Title: Chairman and Chief Executive  Officer |
|   |                                                     |
|   |                                                     |
|   | **Blue Wireless & Data, Inc.**a Delaware corporation |
|   | ** **                                               |
|   | By                                                       | /s/ John  Mills |   |
|   |                                                     | Name: John Mills |
|   |                                                     | Title: Chief Operating Officer, Vice  President and Director |

 

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