EXHIBIT 6.11
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (hereinafter referred to as this
"Agreement") dated as of November 24, 1998 is made and entered into by and
between MediQuik Services, Inc., a Delaware corporation ("MediQuik") and Cash
Flow Marketing, Inc., a Delaware corporation ("Cash").
W-I-T-N-E-S-S-E-T-H:
WHEREAS, MediQuik is a corporation organized and existing under the laws of
the State of Delaware, having been incorporated on April 7, 1998; and
WHEREAS, Cash is a corporation organized and existing under the laws of the
State of Delaware, having been incorporated on November 24, 1998; and
NOW THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
MediQuik shall be merged into Cash (the "Merger") upon the terms and conditions
hereinafter set forth.
ARTICLE I
MERGER
On December 28, 1998 or as soon as practicable thereafter (the "Effective
Date"); MediQuik shall be merged into Cash, the separate existence of MediQuik
shall cease and Cash (following the Merger referred to as "New MediQuik") shall
continue to exist under the name of "MediQuik Services, Inc.," by virtue of, and
shall be governed by, the laws of the State of Delaware. The address of the
registered office of New MediQuik in the State of Delaware will be The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx
of Newcastle, State of Delaware.
ARTICLE II
CERTIFICATE OF INCORPORATION OF NEW MEDIQUIK
The Certificate of Incorporation of Cash as in effect on the date hereof
shall be the Certificate of Incorporation of New MediQuik on the Effective Date
without any change except a change of name from Cash Flow Marketing, Inc. to
MediQuik Services, Inc., unless and until amended in accordance with applicable
law.
ARTICLE III
BY LAWS OF NEW MEDIQUIK
The By Laws of Cash shall be the By Laws of New MediQuik as in effect on
the date hereof without change unless and until amended or repealed in
accordance with applicable law.
ARTICLE IV
EFFECT OF MERGER ON STOCK OF CONSTITUENT CORPORATION
4.01 On the Effective Date, (i) each .9327 outstanding shares of MediQuik
common stock, $.001 par value ("MediQuik Common Stock") shall be converted into
one share of New MediQuik common stock, $.001 par value ("New MediQuik Common
Stock"), except for those shares of MediQuik Common Stock with respect to which
the holders thereof duly exercise their dissenters' rights under Delaware law,
and (ii) any fractional New MediQuik Common Stock interests to which a holder of
MediQuik Common Stock would be entitled will be cancelled with the holder
thereof being entitled to a whole share of New MediQuik Common Stock for each
fractional New MediQuik Common Stock interest which is cancelled.
4.02 On the Effective Date, (i) each 2.000 outstanding shares of Cash
common stock, $.001 par value ("Cash Common Stock") shall be converted into one
share of New MediQuik common stock, $.001 par value ("New MediQuik Common
Stock"), except for those shares of Cash Common Stock with respect to which the
holders thereof duly exercise their dissenters' rights under Delaware law, and
(ii) any fractional New MediQuik Common Stock interests to which a holder of
Cash Common Stock would be entitled will be cancelled with the holder thereof
being entitled to a whole share of New MediQuik Common Stock for each fractional
New MediQuik Common Stock interest which is cancelled. Immediately following
the closing of the Merger on the Effective Date, Mr. R. Xxxxx Xxxxxxx will sell
a total of 639,000 shares of New MediQuik Common Stock owned of record and
beneficially by him to New MediQuik in consideration for $5,000 in cash.
4.03 All options and rights to acquire MediQuik Common Stock or Cash
Common Stock under or pursuant to any options or warrants which are outstanding
on the Effective Date of the Merger will automatically be converted into
equivalent options and rights to purchase that whole number of shares of New
MediQuik Common Stock into which the number of shares of MediQuik Common Stock
or Cash Common Stock subject to such options or warrants immediately prior to
the Effective Date would have been converted in the merger had such rights been
exercised immediately prior thereto (with any fractional New MediQuik Common
Stock interest resulting from the exercise being adjusted to the next highest
whole share such holder would have received for any such fraction in the merger
had he exercised such warrants or options immediately prior to the Merger). The
option price per share of New MediQuik Common Stock shall be the option price
per share of MediQuik Common Stock or Cash Common Stock in effect prior to the
Effective Date. All plans or agreements of MediQuik or Cash under which such
options and rights are granted or issued shall be continued and assumed by New
MediQuik unless and until amended or terminated in accordance with their
respective terms.
4.04 (a) Atlas Stock Transfer Corporation shall act as exchange agent in
the Merger.
(b) Prior to, or as soon as practicable, after the Effective Date, New
MediQuik shall mail to each person who was, at the time of mailing or at the
Effective Date, a holder of record of issued and outstanding MediQuik Common
Stock or Cash Common Stock (i) a form letter of transmittal and (ii)
instructions for effecting the surrender of the certificate or certificates,
which immediately prior to the Effective Date represented issued and outstanding
shares of MediQuik Common Stock or Cash
Common Stock ("MediQuik Certificates" or "Cash Certificates"), in exchange
for certificates representing New MediQuik Common Stock. Upon surrender of a
MediQuik Certificate of Cash Certificate for cancellation to New MediQuik,
together with a duly executed letter of transmittal, the holder of such
MediQuik Certificate or Cash Certificate shall subject to paragraph (g) of
this section 4.04 be entitled to receive in exchange therefor a certificate
representing that number of shares of New MediQuik Common Stock into which
MediQuik Common Stock or Cash Common Stock theretofore represented by the
MediQuik Certificate or Cash Certificate so surrendered shall have been
converted pursuant to the provisions of this Article IV; and the MediQuik
Certificate or Cash Certificate so surrendered shall forthwith be cancelled.
(c) No dividends or other distributions declared after the Effective Date
with respect to New MediQuik Common Stock and payable to holders of record
thereof after the Effective Date shall be paid to the holder of any
unsurrendered MediQuik Certificate or Cash Certificate with respect to New
MediQuik Common Stock which by virtue of the Merger are represented thereby, nor
shall such holder be entitled to exercise any right as a holder of New MediQuik
Common Stock until such holder shall surrender such MediQuik Certificate or Cash
Certificate. Subject to the effect, if any, of applicable law and except as
otherwise provided in paragraph (g) of this Section 4.04, after the subsequent
surrender and exchange of a MediQuik Certificate or Cash Certificate, the holder
thereof shall be entitled to receive any such dividends or other distributions,
without any interest thereon, which became payable prior to such surrender and
exchange with respect to New MediQuik Common Stock represented by such MediQuik
Certificate or Cash Certificate.
(d) If any stock certificate representing New MediQuik Common Stock is to
be issued in a name other than that in which the MediQuik Certificate or Cash
Certificate surrendered with respect thereto is registered, it shall be a
condition of such issuance that the MediQuik Certificate or Cash Certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting such issuance shall pay any transfer or other
taxes required by reason of the issuance to a person other than the registered
holder of the MediQuik Certificate or Cash Certificate surrendered or shall
establish to the satisfaction of New MediQuik that such tax has been paid or is
not applicable.
(e) After the Effective Date, there shall be no further registration of
transfers on the stock transfer books of MediQuik of the Shares of MediQuik
Common Stock, or of any other shares of stock of MediQuik which were outstanding
immediately prior to the Effective Date. If after the Effective Date
certificates representing such shares are presented to MediQuik they shall be
cancelled and, in the case of MediQuik Certificates, exchanged for certificates
representing New MediQuik Common Stock as provided in this Article IV.
(f) After the Effective Date, there shall be no further registration of
transfers on the stock transfer books of Cash of the Shares of Cash Common
Stock, or of any other shares of stock of Cash, which were outstanding
immediately prior to the Effective Date. If after the Effective Date
certificates representing such shares are presented to Cash they shall be
cancelled and, in the case of Cash Certificates, exchanged for certificates
representing New MediQuik Common Stock as provided in this Article IV.
(g) No certificates or scrip representing fractional New MediQuik Common
Stock shall be issued upon the surrender for exchange of MediQuik Certificates
or Cash Certificates. In lieu thereof, the Exchange Agent shall issue to each
holder of MediQuik Common Stock or Cash Common Stock the a whole share of New
MediQuik Common Stock.
ARTICLE V
CORPORATE EXISTENCE, MEDIQUIK AND LIABILITIES OF MEDIQUIK
5.01 On the Effective Date the separate existence of MediQuik shall cease.
MediQuik shall be merged with and into Cash in accordance with the provisions of
this Agreement. Thereafter, New MediQuik shall possess all the rights,
privileges, powers and franchises as well of a public as of a private nature,
and shall be subject to all the restrictions, disabilities and duties of each of
the parties to this Agreement and all and singular; the rights, privileges,
powers and franchises of MediQuik and Cash, and all property, real, personal and
mixed, and all debts due to each of them on whatever account, shall be vested in
New MediQuik; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter and effectually the property of
New MediQuik, as they were of the respective constituent entities, and the title
to any real estate whether by deed or otherwise vested in MediQuik and Cash or
either of them, shall not revert to or be in any way impaired by reason of the
Merger; but all rights of creditors and all liens upon any property of the
parties hereto, shall be preserved unimpaired, and all debts, liabilities and
duties of the respective constituent entities, shall thenceforth attach to New
MediQuik, and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it.
5.02 MediQuik agrees that it will execute and deliver, or cause to be
executed and delivered, all such deeds, assignments and other instruments, and
will take or cause to be taken such further or other action as New MediQuik may
deem necessary or desirable in order to vest in and confirm to New MediQuik
title to and possession of all the property, rights, privileges, immunities,
powers, purposes and franchises, and all and every other interest, of MediQuik
and otherwise to carry out the intent and purposes of this Agreement.
ARTICLE VI
OFFICERS AND DIRECTORS OF NEW MEDIQUIK
6.01 Upon the Effective Date, the officers and directors of MediQuik shall
be officers and directors of New MediQuik in office at such date, and such
persons shall hold office in accordance with the By Laws of Cash or until their
respective successors shall have been appointed or elected.
6.02 If, upon the Effective Date, a vacancy shall exist in the Board of
Directors of New MediQuik, such vacancy shall be filled in the manner provided
by its By Laws.
ARTICLE VII
APPROVAL BY SHAREHOLDERS; AMENDMENT; EFFECTIVE DATE
7.01 This Agreement and the Merger contemplated hereby are subject to
approval by the requisite vote of shareholders in accordance with applicable
Delaware law. As promptly as
practicable after approval of this Agreement by shareholders in accordance
with applicable law, duly authorized officers of the respective parties shall
make and execute Articles of Merger and a Certificate of Merger and shall
cause such documents to be filed with the Secretary of State of Delaware in
accordance with the laws of the State of Delaware. The Effective Date of the
Merger shall be the date on which the Merger becomes effective under the laws
of Delaware.
7.02 The Boards of Directors of MediQuik and Cash may amend this Agreement
at any time prior to the Effective Date, provided that an amendment made
subsequent to the approval of the merger by the shareholders of MediQuik and
Cash shall not (1) alter or change the amount or kind of shares to be received
in exchange for or on conversion of all or any of the MediQuik Common Stock or
the Cash Common Stock (2) alter or change any term of the Certificate of
Incorporation of Cash, or (3) alter or change any of the terms and conditions of
this Agreement if such alteration or change would adversely affect the holders
of MediQuik Common Stock or Cash Common Stock.
ARTICLE VIII
TERMINATION OF MERGER
8.01 This Agreement may be terminated and the Merger may be abandoned any
time prior to the Effective Time, whether before or after approval by the
stockholders of Cash or MediQuik:
(a) The Merger may be abandoned any time prior to the Effective Time
by mutual consent of the Boards of Directors of MediQuik and Cash;
(b) The Merger may be abandoned any time prior to the Effective Time
by either MediQuik or Cash if, without fault of such terminating
party, the Merger shall not have been consummated on or before
December 28, 1998, which date may be extended by mutual consent of the
parties hereto to and including January 31, 1998;
(c) The Merger may be abandoned any time prior to the Effective Time
by either MediQuik or Cash, if any court of competent jurisdiction in
the United States or other governmental body in the United States,
other than at the request of the parties, or any affiliate thereof,
seeking to terminate this Agreement pursuant to this clause (c), shall
have issued an order (other than a temporary restraining order),
decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the Merger, and such order, decree, ruling or
other action shall have become final and nonappealable; or
(d) The Merger may be abandoned any time prior to the Effective Time
by either MediQuik or Cash, if either of their respective Boards of
Directors determines that in light of the potential liability that
might result from the exercise of dissenters' rights under Section 262
of the General Corporation Law of Delaware, the Merger would be
impracticable, undesirable or not in the best interests of the their
respective shareholders.
8.02 This Agreement may be terminated and the Merger may be abandoned by
action of the Board of Directors of MediQuik, at any time prior to the Effective
Time, before or after the approval by the stockholders of MediQuik, if (a) Cash
shall have failed to comply in any material respect with any of the covenants or
agreements contained in this Agreement to be complied with or performed by Cash
at or prior to such date of termination, (b) there exists a breach or breaches
of any representation or warranty of Cash contained in this Agreement or any of
the Closing conditions are not satisfied; provided, however, that if such breach
or breaches are capable of being cured prior to the Effective Time, such
breaches shall not have been cured within 15 calendar days of delivery to Cash
of written notice of such breach or breaches, (c) Cash shall have furnished or
disclosed non-public information to, or commenced negotiations with, a third
party with respect to a Cash Acquisition Transaction or Cash Business
Combination Transaction (as hereinafter defined) or shall have resolved to do
either of the foregoing and publicly disclosed such resolution, or (d) the Board
of Directors of Cash shall have withdrawn, changed, modified in any manner or
taken action inconsistent with its recommendation of this Agreement, the Merger
or the other transactions contemplated hereby or thereby or shall have resolved
to do any of the foregoing and publicly disclosed such resolution.
8.03 This Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time, before or after the approval by the
stockholders of Cash, by action of the Board of the Directors of Cash, if (a)
MediQuik shall have failed to comply in any material respect with any of the
covenants or agreements contained in this Agreement to be complied with or
performed by MediQuik at or prior to such date of termination, (b) there exists
a breach or breaches of any representation or warranty of MediQuik contained in
this Agreement such that the Closing conditions would not be satisfied;
provided, however, that if such breach or breaches are capable of being cured
prior to the Effective Time, such breaches shall not have been cured within 15
calendar days of delivery to MediQuik of written notice of such breach or
breaches, (c) MediQuik shall have furnished or disclosed non-public information
to, or commenced negotiations with, a third party with respect to a MediQuik
Acquisition Transaction or MediQuik Business Combination Transaction or shall
have resolved to do either of the foregoing and publicly disclosed such
resolution, or (d) the Board of Directors of MediQuik shall have withdrawn,
changed, modified in any manner or taken action inconsistent with its
recommendation of this Agreement and the Merger or shall have resolved to do any
of the foregoing and publicly disclosed resolution.
8.04 In the event of termination and abandonment of the Merger by MediQuik
or Cash pursuant to this Article VIII, written notice thereof shall forthwith be
given to the other.
8.05 In the event of termination of this Agreement and abandonment of the
Merger pursuant to this Article VIII, no party hereto (or any of its directors
or offices) shall have any liability or further obligation to any other party to
this Agreement, except that nothing herein shall relieve any party from
liability for any breach of this Agreement.
ARTICLE IX
MISCELLANEOUS
In order to facilitate the filing and recording of this Agreement, this
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original and all such counterparts shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, all as of the day and year first above
written.
MEDIQUIK SERVICES, INC.
DELAWARE CORPORATION
By: /s/ Grant M. Gables
------------------------------------
Grant M. Gables, President
CASH FLOW MARKETING, INC.
A DELAWARE CORPORATION
By: /s/ R. Xxxxx Xxxxxxx
------------------------------------
R. Xxxxx Xxxxxxx, President
