Exhibit 8(ii)
MERGER AGREEMENT AND PLAN OF MERGER
THIS MERGER AGREEMENT AND PLAN OF MERGER ("Agreement") is made and
entered into as of the 9th day of March, 1999 by and between Genesis Capital
Corporation of Nevada, a Nevada corporation (hereinafter "The Nevada
Corporation"), and Genesis Capital Corporation, a Colorado corporation
("Genesis"). The Nevada Corporation and Genesis are hereinafter sometimes
referred to collectively as the "Constituent Corporations."
WHEREAS, Genesis is a privately-held company; and,
WHEREAS, The Nevada Corporation is a recently formed privately-held
Nevada corporation; and,
WHEREAS, the Boards of Directors of Genesis and The Nevada Corporation
have determined that it is in the best interest of the Constituent Corporations
that Genesis merge with and into The Nevada Corporation, and that the
shareholders of Genesis exchange their shares of the capital stock of Genesis
for shares of the capital stock of The Nevada Corporation. The transaction
contemplated hereby is hereinafter referred to as the "Merger"; and,
WHEREAS, the Constituent Corporations desire to enter into and adopt
this Merger Agreement for the purpose of setting forth certain terms and
provisions that will govern the Merger and to consummate the Merger as a "change
in domicile merger" in accordance with the provisions of Section 368 (a)(2)(F)
of the Internal Revenue Code of 1986, as amended (the "Code"); and,
WHEREAS, the principal purpose of the Merger is to effectuate a change
in corporate domicile from Colorado to Nevada.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, in accordance with the business corporation law of the State of Nevada
and the State of Colorado, and for the purpose of setting forth the terms and
conditions of the Merger, the mode of completing the Merger, and the manner of
converting the shares of the capital stock of Genesis into shares of capital
stock of The Nevada Corporation, the parties agree as follows:
1. The Merger
1.1 The Effective Time. The Merger shall be accomplished by filing
appropriate articles of merger with the Secretary of State of the State of
Nevada and the Secretary of State of the State of Colorado in a form acceptable
under the business corporation laws of such States as soon as practicable after
execution of this Merger Agreement. The term "Effective Time" shall mean the
time at which all necessary Certificates of Merger have been issued by the
Secretary of State of the State of Nevada and the Secretary of State of the
State of Colorado. If one or both Secretaries of State need not issue a
Certificate of Merger, the filing with and acceptance by the relevant Secretary
of State shall be deemed the time of issuance of a Certificate of Merger for
purposes of calculating the "Effective Time."
1.2 Manner of Merger. At the Effective Time, Genesis shall be merged
into The Nevada Corporation, which shall be the corporation that survives the
Merger. The corporate existence of The Nevada Corporation with all its purposes,
powers and objects shall continue unaffected and unimpaired by the Merger; and,
as the corporation surviving the Merger, The Nevada Corporation shall be
governed by the laws of the State of Nevada
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and shall succeed to all rights, assets, liabilities and obligations of Genesis,
as provided in the business corporation laws of the State of Colorado. The
separate existence and corporate organizations of The Nevada Corporation and
Genesis shall cease at the Effective Time, and thereafter The Nevada Corporation
shall continue as The Nevada Corporation under the laws of the State of Nevada
under the new name of Genesis Capital Corporation of Nevada, a Nevada
corporation. All the property, real, personal, and mixed, and all debts
or other obligations due to Genesis, shall be transferred to and shall be
vested in The Nevada Corporation, without further act or deed, as provided in
the business corporation laws of the States of Nevada and Colorado.
1.3 Articles of Incorporation and Bylaws of The Nevada Corporation.
(a) At the Effective Time, the Articles of Incorporation, as amended, and
By-Laws of The Nevada Corporation shall become the surviving Articles
and By-Laws of the Constituent Corporations.
(b) The directors and officers of Genesis as of the Effective Time shall be
the directors and officers of The Nevada Corporation, until their
successors shall have been elected and qualified, or as otherwise
provided by the General Corporation Law of the State of Nevada and in
the Bylaws of The Nevada Corporation. If at the Effective Time a
vacancy exists in the Board of Directors or in any of the offices of
The Nevada Corporation, such vacancy shall thereafter be filled in the
manner provided in the Bylaws of The Nevada Corporation.
1.4 Status and Conversion of Shares. The manner of converting the
shares of capital stock of Genesis outstanding immediately prior to the Merger
into shares of common stock of The Nevada Corporation shall be as follows:
(a) At the Effective Time, each Two Thousand (2,000) shares of the issued
and outstanding $.01 par value common stock of Genesis shall, by virtue
of the Merger and without any action on the part of the holder thereof,
become and be converted into one (1) share of the $.001 par value
common stock of The Nevada Corporation. At the Effective Time, each One
(1) share of the issued and outstanding $.01 par value preferred stock
of Genesis shall, by virtue of the Merger and without any action on the
part of the holder thereof, become and be converted into One (1) share
of the $.001 par value preferred stock of The Nevada Corporation.
(b) Any fractional shares of the capital stock of The Nevada Corporation
resulting from conversion under this Paragraph 1.4 shall be rounded up
to the next whole share of capital stock in the Nevada Corporation.
(c) Any shares of the capital stock of Genesis held in treasury as of the
Effective Time shall, by virtue of the Merger and without any
additional action, become and be converted into shares held in the
treasury of The Nevada Corporation at the same rate of conversion
stated in Paragraph 1.4(a), above.
(d) After the Effective Time, each holder of a certificate or certificates
theretofore representing outstanding shares of the capital stock of
Genesis may surrender such certificate or certificates to such agent or
agents as shall be appointed by The Nevada Corporation (the "Exchange
Agent"), and shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of whole shares of
capital stock of The Nevada Corporation into which the shares of
capital stock of Genesis theretofore represented by the certificates so
surrendered have been converted, at the conversion rate stated in
Paragraph 1.4(a), above.
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(e) If any certificate evidencing shares of the capital stock of Genesis is
to be issued in a name other than the name in which the certificate
surrendered is registered, the certificate so surrendered shall be
properly endorsed and shall otherwise be in proper form for transfer.
The person requesting the transfer shall pay to the Exchange Agent any
transfer or other fees or taxes required by reason of the issuance of a
certificate in name other than that of the registered holder of the
certificate surrendered.
(f) The Nevada Corporation may, without notice to any person, terminate all
exchange agencies at any time after 120 days following the Effective
Time. After such termination, all exchanges, payments and notices
provided for in this Agreement to be made to or by the Exchange Agent
shall be made to or by The Nevada Corporation or its agent.
(g) On or before February 10, 1999, notice of the proposed merger will be
given to all shareholders of record of Genesis, and such holders of a
majority of the outstanding shares of the $.01 par value common stock
and $.01 par value preferred stock, representing all classes of capital
stock of Genesis entitled to vote on the Merger, shall have opportunity
to vote on and approve or reject the Merger. In such Notice to
Shareholders, all Genesis shareholders shall be made aware of any
dissenter's rights under Colorado law and, in particular, that they
will have waived any dissenter's rights under the Business Corporation
Act of the State of Colorado by voting in favor of such merger.
(h) The sole share of $.001 par value common stock of The Nevada
Corporation owned by Global Advancements, Inc. shall be canceled as of
the Effective Time and shall not thereafter be issued or outstanding.
2. Miscellaneous
2.1 Amendments. This Merger Agreement may be amended with the approval
of the Boards of Directors of the Constituent Corporations at any time before or
after the approval hereof by their respective shareholders, but after any such
approval no amendment shall be made that substantially and adversely changes the
terms hereof as to any party without the approval of the shareholders of such
party.
2.2 Extension; Waiver. At any time before the Effective Time, the Board
of Directors of either of the Constituent Corporations may (a) extend the time
for the performance of any of the obligations or other acts of another party
hereto, or (b) waive compliance by another party with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid only if
set forth in an instrument in writing duly executed and delivered on behalf of
such party.
IN WITNESS WHEREOF, the Constituent Corporations have executed this
Merger Agreement as of the day and year first above written.
"The Nevada Corporation"
Genesis Capital Corporation of Nevada,
a Nevada corporation
By: /s/
Name: Xxxxxxxx Xxxxx
Title: President
"Genesis"
Genesis Capital Corporation,
a Colorado corporation
By:_______________/s/_________________
Name: Xxxxxxxx Xxxxx
Title: President
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