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PLAN AND AGREEMENT
OF MERGER OF
STARPLAN TECHNOLOGIES, LTD.
WITH AND INTO TOUCH-IT, INC.
UNDER THE NAME OF TOUCH-IT, INC.
This is a Plan and Agreement of Merger (Agreement) between STARPLAN
TECHNOLOGIES, LTD., a foreign corporation (the "Merging Corporation"), and
TOUCH-IT, INC., a Utah corporation (the "Surviving Corporation").
ARTICLE 1. PLAN OF MERGER
PLAN ADOPTED
1.01. A plan of merger of STARPLAN TECHNOLOGIES, LTD. and TOUCH-IT, INC.,
pursuant to the Utah Statutes, is adopted as follows:
(a) STARPLAN TECHNOLOGIES, LTD. shall be merged with and into TOUCH-IT,
INC., to exist and be governed by the laws of the State of Utah.
(b) The name of the Surviving Corporation shall be TOUCH-IT, INC. which
shall then be changed to GLOBAL CYBER XXXXXX.XXX, INC. with a subsidiary company
formed named TOUCH-IT, INC.
(c) When this agreement shall become effective, the separate corporate
existence of STARPLAN TECHNOLOGIES, LTD.. shall cease, and the Surviving
Corporation shall succeed, without other transfer, to all the rights and
property of STARPLAN TECHNOLOGIES, LTD.. and shall be subject to all the debts
and liabilities of the Merging Corporation in the same manner as if the
Surviving Corporation had itself incurred them. All rights of creditors and all
liens on the property of each constituent corporation shall be preserved
unimpaired, limited in lien to the property affected by the liens immediately
prior to the merger.
(d) The Surviving Corporation will carry on business with the assets of
STARPLAN TECHNOLOGIES, LTD., as well as with the assets of TOUCH-IT, INC.
(e) The shareholders of STARPLAN TECHNOLOGIES, LTD.. will surrender all of
their shares in the manner hereinafter set forth.
(f) STARPLAN TECHNOLOGIES, LTD.. shall pay to TOUCH-IT, INC. $1,000.
(g) In exchange for the shares of STARPLAN TECHNOLOGIES, LTD.. surrendered
by its shareholders, and $1,000 the Surviving Corporation will issue and
transfer to these shareholders, on the basis set forth in Article 4 below,
shares of its common stock.
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(h) The shareholders of TOUCH-IT, INC. will retain their shares as shares
of the Surviving Corporation, all existing lock up agreements shall remain in
full force and effect.
(i) The Articles of Incorporation of TOUCH-IT, INC., as existing on the
effective date of the merger, shall continue in full force as the Articles of
Incorporation of the Surviving Corporation until altered, amended, or repealed
as provided in the Articles or as provided by law.
EFFECTIVE DATE
1.02. The effective date of the merger ("Effective Date") shall be February
26, 1999.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF CONSTITUENT CORPORATIONS
NONSURVIVOR
2.01. As a material inducement to the Surviving Corporation to execute this
Agreement and perform its obligations under this Agreement, STARPLAN
TECHNOLOGIES, LTD.. represents and warrants to the Surviving Corporation as
follows:
(a) STARPLAN TECHNOLOGIES, LTD.. is a corporation duly organized, validly
existing, and in good standing under the laws of the Country of Ireland, with
corporate power and authority to own property and carry on its business as it is
now being conducted. STARPLAN TECHNOLOGIES, LTD. is not required to be qualified
as a foreign corporation to transact business in any other jurisdiction].
(b) STARPLAN TECHNOLOGIES, LTD.. has an authorized capitalization of pound
sterling 100 consisting of one hundred shares of common stock, each of no par
value, of which ONE HUNDRED (100) shares are validly issued and outstanding,
fully paid, and nonassessable on the date of this Agreement.
(c) STARPLAN TECHNOLOGIES, LTD.. has furnished the Surviving Corporation
with an interim unaudited balance sheet (the Balance Sheet) as of December 31,
1998 (the Balance Sheet Date) and the related statement of income for the
twelve-month period then ended. These financial statements (i) are in accordance
with the books and records of STARPLAN TECHNOLOGIES, LTD.; (ii) fairly present
the financial condition of STARPLAN TECHNOLOGIES, LTD. as of those dates and the
results of its operations as of and for the periods specified, all prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior accounting periods; and (iii) contain and reflect, in
accordance with generally accepted accounting principles consistently applied,
reserves for all liabilities, losses, and costs in excess of expected receipts
and all discounts and refunds for services and products already rendered or sold
that are reasonably anticipated and based on events or
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circumstances in existence or likely to occur in the future with respect to any
of the contracts or commitments of STARPLAN TECHNOLOGIES, LTD. Specifically, but
not by way of limitation, the Balance Sheet discloses, in accordance with
generally accepted accounting principles, all of the debts, liabilities, and
obligations of any nature (whether absolute, accrued, contingent, or otherwise,
and whether due or to become due) of STARPLAN TECHNOLOGIES, LTD. at the Balance
Sheet Date, and includes appropriate reserves for all taxes and other
liabilities accrued or due at that date but not yet payable.
(d) All required foreign, federal, state, and local tax returns, if
applicable, of STARPLAN TECHNOLOGIES, LTD. have been accurately prepared and
duly and timely filed, and all federal, state, and local taxes required to be
paid with respect to the periods covered by the returns have been paid. STARPLAN
TECHNOLOGIES, LTD. has not been delinquent in the payment of any tax or
assessment.
SURVIVOR
2.02. As a material inducement to STARPLAN TECHNOLOGIES, LTD.. to execute
this Agreement and perform its obligations under this Agreement, TOUCH-IT, INC..
represents and warrants to STARPLAN TECHNOLOGIES, LTD.. as follows:
(a) TOUCH-IT, INC. is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Utah, with corporate power and
authority to own property and carry on its business as it is now being
conducted. TOUCH-IT, INC. is not required to be qualified as a foreign
corporation to transact business in any other jurisdiction. A copy of the
Articles of Incorporation and Bylaws of TOUCH-IT, INC. are attached hereto as
Exhibit "A".
(b) TOUCH-IT, INC. has an authorized capitalization of 15,000,000
consisting of FIFTEEN MILLION (15,000,000) shares of common stock, each of no
par value, of which ONE MILLION SIX HUNDRED AND EIGHTY SEVEN THOUSAND THREE
HUNDRED AND THIRTY TWO (1,687,332) shares are validly issued and outstanding,
fully paid, and nonassessable on the date of this Agreement. TOUCH-IT, INC.
shall increase it's authorized shares of stock to ONE HUNDRED MILLION
(100,000,000) shares of common stock, each of no par value.
SECURITIES LAW
2.03. The parties will mutually arrange for and manage all necessary
procedures under the requirements of both applicable federal and State
securities laws and the related supervisory commissions to the end that this
plan is properly processed to comply with registration formalities.
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ARTICLE 3.
COVENANTS, ACTIONS, AND OBLIGATIONS
PRIOR TO THE EFFECTIVE DATE
INTERIM CONDUCT OF BUSINESS; LIMITATIONS
3.01. Except as limited by this Paragraph 3.01, pending consummation of the
merger, each of the constituent corporations will carry on its business in
substantially the same manner as before and will use its best efforts to
maintain its business organization intact, to retain its present employees, and
to maintain its relationships with suppliers and other business contacts.
A. Except with the prior consent in writing of TOUCH-IT, INC., pending
consummation of the merger, STARPLAN TECHNOLOGIES, LTD.. shall not:
(a) Declare or pay any dividend or make any other distribution on its
shares.
(b) Create or issue any indebtedness for borrowed money.
(c) Enter into any transaction other than those involved in carrying on its
ordinary course of business.
B. Except with the prior consent in writing of STARPLAN TECHNOLOGIES,
LTD. pending consummation of the merger, TOUCH-IT, INC., shall not:
(a) Declare or pay any dividend or make any other distribution on its
shares.
(b) Create or issue any indebtedness for borrowed money.
(c) Enter into any transaction other than those involved in carrying on its
ordinary course of business.
SUBMISSION TO SHAREHOLDERS
3.02. This Agreement shall be submitted separately to the shareholders of
the constituent corporations in the manner provided by the laws of their
respective jurisdictions for approval.
CONDITIONS PRECEDENT TO OBLIGATIONS
OF STARPLAN TECHNOLOGIES, LTD..
3.03. Except as may be expressly waived in writing by STARPLAN
TECHNOLOGIES, LTD., all of the obligations of STARPLAN TECHNOLOGIES, LTD. under
this Agreement are subject to the satisfaction, prior to or on the Effective
Date, of each of the following conditions by TOUCH-IT, INC.:
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(a) The representations and warranties made by TOUCH-IT, INC. to STARPLAN
TECHNOLOGIES, LTD. in Article 2 of this Agreement and in any document delivered
pursuant to this Agreement shall be deemed to have been made again on the
Effective Date and shall then be true and correct in all material respects. If
TOUCH-IT, INC. shall have discovered any material error, misstatement, or
omission in those representations and warranties on or before the Effective
Date, it shall report that discovery immediately to STARPLAN TECHNOLOGIES, LTD.
and shall either correct the error, misstatement, or omission or obtain a
written waiver from STARPLAN TECHNOLOGIES, LTD.
(b) TOUCH-IT, INC. shall have performed and complied with all agreements
and conditions required by this Agreement to be performed and complied with by
it prior to or on the Effective Date.
(c) No action or proceeding by any governmental body or agency shall have
been threatened, asserted, or instituted to restrain or prohibit the carrying
out of the transactions contemplated by this Agreement.
(d) All corporate and other proceedings and action taken in connection with
the transactions contemplated by this Agreement and all certificates, opinions,
agreements, instruments, and documents shall be satisfactory in form and
substance to counsel for STARPLAN TECHNOLOGIES, LTD.
CONDITIONS PRECEDENT TO OBLIGATIONS OF
TOUCH-IT, INC.
3.04. Except as may be expressly waived in writing by TOUCH-IT, INC., all
of the obligations of TOUCH-IT, INC. under this Agreement are subject to the
satisfaction, prior to or on the Effective Date, of each of the following
conditions by STARPLAN TECHNOLOGIES, LTD.:
(a) The representations and warranties made by STARPLAN TECHNOLOGIES, LTD.
to TOUCH-IT, INC. in Article 2 of this Agreement and in any document delivered
pursuant to this Agreement shall be deemed to have been made again on the
Effective Date and shall then be true and correct. If STARPLAN TECHNOLOGIES,
LTD. shall have discovered any material error, misstatement, or omission in
those representations and warranties on or before the Effective Date, it shall
report that discovery immediately to TOUCH-IT, INC. and shall either correct the
error, misstatement, or omission or obtain a written waiver from TOUCH-IT, INC..
(b) STARPLAN TECHNOLOGIES, LTD. shall have performed and complied with all
agreements or conditions required by this Agreement to be performed and complied
with by it prior to or on the Effective Date.
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(c) No action or proceeding by any governmental body or agency shall have
been threatened, asserted, or instituted to restrain or prohibit the carrying
out of the transactions contemplated by this Agreement.
ARTICLE 4.
MANNER OF CONVERTING SHARES
MANNER
4.01. The holders of shares of STARPLAN TECHNOLOGIES, LTD. shall surrender
their shares to Xxxxxxx X. Xxxxxxx, the Secretary of the Surviving Corporation
promptly after the Effective Date, in exchange for shares of the Surviving
Corporation to which they are entitled under this Article 4.
BASIS
4.02. (a) The shareholders of STARPLAN TECHNOLOGIES, LTD. shall be entitled
to receive twenty-six million three hundred and twenty thousand (26,320,000)
shares of common stock of the Surviving Corporation, each of no par value, being
ninety four (94%) percent of the total outstanding common stock of the surviving
corporation, to be distributed on the basis of one share for each share of
common stock of STARPLAN TECHNOLOGIES, LTD. It is agreed and understood that
approximately fifty (50%) percent of the common stock received by STARPLAN
TECHNOLOGIES, LTD. shall be used in the 504D offering to raise operating funds.
(b) No fractional shares of common stock of STARPLAN TECHNOLOGIES, LTD.
shall be issued, but each shareholder entitled to a fractional share shall
receive a scrip certificate, expiring as of June 30, 1999, in a form prescribed
by the Directors of TOUCH-IT, INC., evidencing the right to a fractional share,
and full shares shall be issued in exchange for the surrender of scrip
certificates aggregating a full share or shares. The Surviving Corporation shall
enter into an agreement with a named trustee and will issue to the trustee a
stock certificate covering the aggregate of the fractional shares represented by
the transferable scrip certificates issued and outstanding. The agreement shall
provide that:
(1) During the life of the scrip certificates any individual acquiring a
sufficient amount of fractions to equal one or more whole shares may exchange
them through the trustee for stock certificates representing whole shares.
(2) After the expiration date of the scrip certificates, that portion of
stock remaining in the hands of the trustee will be disposed of under sealed
bids, following appropriate public notice or at a public auction, to the highest
bidder or in any manner prescribed by the Board of Directors of the Surviving
Corporation, but at not less than the market value on the date of sale, and the
proceeds of sale shall then be distributed pro rata to the holders of
outstanding scrip certificates.
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SHARES OF SURVIVOR
4.03. The currently outstanding ONE MILLION SIX HUNDRED AND EIGHTY SEVEN
THOUSAND THREE HUNDRED AND THIRTY TWO (1,687,332) shares of common stock of
TOUCH-IT, INC., each of no par value, shall remain outstanding as common stock,
each of no par value, of the Surviving Corporation.
ARTICLE 5.
DIRECTORS AND OFFICERS
DIRECTORS AND OFFICERS OF SURVIVOR
5.01. (a) The present Board of Directors of TOUCH-IT, INC. shall continue
to serve as the Board of Directors of the Surviving Corporation until the next
annual meeting or until their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the Surviving
Corporation on the Effective Date of the merger, the vacancy may be filled by
the shareholders as provided in the bylaws of the Surviving Corporation.
(c) All persons who as of the Effective Date of the merger shall be
executive or administrative officers of TOUCH-IT, INC. shall remain as officers
of the Surviving Corporation until the Board of Directors of the Surviving
Corporation shall determine otherwise. The Board of Directors of the Surviving
Corporation may elect or appoint additional officers as it deems necessary.
(d) TOUCH-IT, INC. and STARPLAN TECHNOLOGIES, LTD. hereby agree that they
shall elect a new Board of Directors prior to the effective date of the merger
which will take effect as of the merger and will set forth long term plans
regarding the management and business plan of Touch-It, Inc. a subsidiary of
GLOBAL CYBER XXXXXX.XXX, INC.
(e) TOUCH-IT, INC. shall have a Special Meeting of the Board of Directors
on the effective date of the merger at which meeting a new Board of Directors
shall be elected and take office.
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ARTICLE 6. BYLAWS
BYLAWS OF SURVIVOR
6.01. The bylaws of TOUCH-IT, INC., as existing on the Effective Date of
the merger, shall continue in full force as the bylaws of the Surviving
Corporation until altered, amended, or repealed as provided in the bylaws or as
provided by law.
ARTICLE 7.
NATURE AND SURVIVAL OF
WARRANTIES, INDEMNIFICATION, AND EXPENSES OF
STARPLAN TECHNOLOGIES, LTD.
NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
7.01. All statements contained in any memorandum, certificate, letter,
document, or other instrument delivered by or on behalf of STARPLAN
TECHNOLOGIES, LTD., TOUCH-IT, INC., or the stockholders pursuant to this
Agreement shall be deemed representations and warranties made by the respective
parties to each other under this Agreement. The covenants, representations, and
warranties of the parties and the stockholders shall survive for a period of
three years after the Effective Date. No inspection, examination, or audit made
on behalf of the parties or the stockholders shall act as a waiver of any
representation or warranty made under this Agreement.
MUTUAL INDEMNIFICATION
7.02. STARPLAN TECHNOLOGIES, LTD. and TOUCH-IT, INC. agrees:
(a) to defend, indemnify and hold harmless the other party (including its
parent, subsidiaries, officers, directors, employees and agents) against and
from any and all claims, demands, suits, penalties, fines, judgments, costs and
expenses including reasonable attorney's fees, directly or indirectly incurred
by the other party as the result of any claims by third parties arising out of
or in connection with the breach of its obligations hereunder and for any
misrepresentation or breach of any warranty made hereunder. The indemnified
party agrees to notify the indemnifying party in writing as soon as practical of
any circumstance, accident, claim or occurrence covered by the foregoing
indemnity of which the indemnified party may have knowledge and to cooperate
with the indemnifying party in the investigation and defense. The
indemnification obligations of both parties shall survive the termination of
this Agreement.
(b) Agree that the representations and warranties made by him or her shall
survive for a period of three years after the Effective Date;
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EXPENSES
7.03. STARPLAN TECHNOLOGIES, LTD. will pay all expenses incurred by
STARPLAN TECHNOLOGIES, LTD. and/or TOUCH-IT, INC. in connection with and
arising out of this Agreement and the transactions contemplated by this
Agreement, including without limitation all fees and expenses of STARPLAN
TECHNOLOGIES, LTD.'s and/or TOUCH-IT, INC.'s counsel and accountants. If the
transactions contemplated by this Agreement are not consummated, due to the
fault of TOUCH-IT, INC. than TOUCH-IT, INC. shall be responsible for the
attorney's fees incurred in connection with the transaction. If the
transactions contemplated by this Agreement are not consummated, due to the
fault of STARPLAN TECHNOLOGIES, LTD. than STARPLAN TECHNOLOGIES, LTD. shall be
responsible for the attorney's fees incurred in connection with the
transaction. TOUCH-IT, INC. shall bear none of the expenses incurred by it in
connection with this Agreement and the transactions contemplated by this
Agreement except as set forth in this paragraph.
ARTICLE 8. TERMINATION
CIRCUMSTANCES
8.01. This Agreement may be terminated and the merger may be abandoned at
any time prior to the filing of the Articles of Merger with the Secretary of
State, notwithstanding the approval of the shareholders of either of the
constituent corporations:
(a) By mutual consent of the Board of Directors of the constituent
corporations.
(b) At the election of the Board of Directors of either constituent
corporation if:
(1) The number of shareholders of either constituent corporation, or of
both, dissenting from the merger shall be so large as to make the merger, in
the opinion of either Board of Directors, inadvisable or undesirable.
(2) Any material litigation or proceeding shall be instituted or
threatened against either constituent corporation, or any of its assets, that,
in the opinion of either Board of Directors, renders the merger inadvisable or
undesirable.
(3) Any legislation shall be enacted that, in the opinion of either
Board of Directors, renders the merger inadvisable or undesirable.
(4) Between the date of this Agreement and the Effective Date, there
shall have been, in the opinion of either Board of Directors, any materially
adverse change in the business or condition, financial or otherwise, of either
constituent corporation.
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(c) At the election of the Board of Directors of TOUCH-IT, INC. if without
the prior consent in writing of TOUCH-IT, INC., STARPLAN TECHNOLOGIES, LTD.
shall have:
(1) Declared or paid a cash dividend on its common stock or made any
other distribution on its shares.
(2) Created or issued any indebtedness for borrowed money.
(3) Entered into any transaction other than those involved in carrying on
its business in the usual manner.
NOTICE OF AND LIABILITY ON TERMINATION
8.02. If an election is made to terminate this Agreement and abandon the
merger:
(a) The President or any Vice President of the constituent corporation
whose Board of Directors has made the election shall give immediate written
notice of the election to the other constituent corporation.
(b) On the giving of notice as provided in Subparagraph (a), this Agreement
shall terminate and the proposed merger shall be abandoned, and except for
payment of its own costs and expenses incident to this Agreement, there shall
be no liability on the part of either constituent corporation as a result of the
termination and abandonment.
ARTICLE 9.
INTERPRETATION AND ENFORCEMENT
FURTHER ASSURANCES
9.01. STARPLAN TECHNOLOGIES, LTD. agrees that from time to time, as and when
requested by the Surviving Corporation or by its successors or assigns, it will
execute and deliver or cause to be executed and delivered all deeds and other
instruments. STARPLAN TECHNOLOGIES, LTD. further agrees to take or cause to be
taken any further or other actions as the Surviving Corporation may deem
necessary or desirable to vest in, to perfect in, or to conform of record or
otherwise to the Surviving Corporation title to and possession of all the
property, rights, privileges, powers, and franchises referred to in Article 1
of this Agreement, and otherwise to carry out the intent and purposes of this
Agreement.
NOTICES
9.02. Any notice or other communication required or permitted under this
Agreement shall be properly given when deposited with the United States Postal
Service for transmittal by certified or
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registered mail, postage prepaid, or when deposited with a public telegraph
company for transmittal, charges prepaid, addressed as follows:
(a) In the case of STARPLAN TECHNOLOGIES, LTD., to:
STARPLAN TECHNOLOGIES, LTD.
00 XXXX XXXXXX
XXXXXX 0
XXXXXXXX XX XXXXXXX
or to such other person or address as STARPLAN TECHNOLOGIES, LTD.
may from time to time request in writing.
(b) In the case of TOUCH-IT, INC., to:
TOUCH-IT, INC.
XXXX X. XXXXXXXXX, PRESIDENT
000 XXXXXX XXXXXX
XXXXXXXXXXXX, XXXXXXX 00000
or to such other person or address as TOUCH-IT, INC. may from time to time
request in writing.
ENTIRE AGREEMENT; COUNTERPARTS
9.03. This Agreement and the exhibits to this Agreement contain the entire
agreement between the parties with respect to the contemplated transaction.
This Agreement may be executed in any number of counterparts, all of which
taken together shall be deemed one original.
CONTROLLING LAW
9.04. The validity, interpretation, and performance of this Agreement shall
be governed by, construed, and enforced in accordance with the laws of the
State of Florida.
IN WITNESS WHEREOF, this Agreement was executed as of February 15th, 1999.
TOUCH-IT, INC. STARPLAN TECHNOLOGIES, LTD.
By: /s/ XXXX X. XXXXXXXXX By: /s/ XXXX XXXXX
-------------------------- ----------------------------
Xxxx X. Xxxxxxxxx, President Xxxx Xxxxx, President
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Attest: Attest:
/s/ XXXXXXX X. XXXXXXX /s/ XXXXXX ORONTI
------------------------------ ----------------------------
Xxxxxxx X. Xxxxxxx, Secretary XXXXXX ORONTI, Secretary
------------------
STATE OF FLORIDA
COUNTY OF BROWARD
BEFORE ME, the undersigned authority, this 26th day of February, 1999,
personally appeared Xxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxx, who are
respectively, the President and the Secretary of TOUCH-IT, INC., a Utah
corporation, each of whom is known to be the person who executed the foregoing
Articles of Merger and each acknowledged to and before me that they executed
such instrument in their respective capacity on behalf of said corporation and
did not take an oath.
My Commission Expires:
[SEAL]
--------------------------------------------- [SIG]
CREEDENCE XXXXXXXX -------------------------------
MY COMMISSION # CC 654507 Notary Public, State of Florida
EXPIRES: June 10, 2001
Bonded Thru Notary Public Underwriters
---------------------------------------------
STATE OF FLORIDA
COUNTY OF BROWARD
BEFORE ME, the undersigned authority, this 26th day of February, 1999,
personally appeared Xxxx Xxxxx and Xxxxxx Oronti, who are respectively, the
President and the Secretary of STARPLAN TECHNOLOGIES, LTD., an Ireland
corporation, each of whom is and known to be the person who executed the
foregoing Articles of Merger and each acknowledged to and before me that they
executed such instrument in their respective capacity on behalf of said
corporation and did not take an oath.
My Commission Expires:
[SIG]
-------------------------------
Notary Public, State of Florida
This instrument was prepared by Xxxxxxx X. Xxxxxxx, Esq., whose address is
Xxxxxxx & Belkin, P.A. 0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000,Xxxx Xxxxx, XX
00000.
[SEAL]
---------------------------------------------
CREEDENCE XXXXXXXX
MY COMMISSION # CC 654507
EXPIRES: June 10, 2001
Bonded Thru Notary Public Underwriters
---------------------------------------------
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