AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Plan") is made this 23rd day
of November, 1999, among Millennium Plastics Corporation, a Nevada
corporation ("Millennium"); Graduated Plastics, Inc., a Nevada corporation,
("Graduated Plastics") and its shareholders ("Shareholders").
Millennium wishes to acquire one hundred percent (100%) of the
issued and outstanding stock of Graduated Plastics for and in exchange for
stock of Millennium, in a stock for stock transaction intending to qualify
as a tax-free exchange pursuant to 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended. The parties intend for this Plan to represent
the terms and conditions of such tax-free reorganization, which Plan the
parties hereby adopt.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, IT IS AGREED:
Section 1
Terms of Exchange
1.1 Number of Shares. Upon the execution hereof, the holders of
all the issued and outstanding stock of Graduated Plastics agree to assign,
transfer, and deliver to Millennium, free and clear of all liens, pledges,
encumbrances, charges or known claims of any kind, nature or description,
all of their shares of Graduated Plastics stock, and Millennium agrees to
acquire such shares on the date thereof, or as soon as practicable
thereafter, by issuing and delivering in exchange therefore solely common
shares of Millennium's stock, par value $.001, in the aggregate of
6,750,000 restricted common shares. Subsequent to the date hereof, the
Shareholders shall, upon the surrender to Millennium of the Graduated
Plastics certificates representing their respective beneficial and record
ownership of one hundred percent (100%) of the issued and outstanding
shares of Graduated Plastics or as soon as practicable thereafter, and
further provided an exemption from the registration provisions of Section 5
of the Securities Act of 1933 is available for the issuance thereof, the
Shareholders shall be entitled to receive a certificate(s) evidencing
shares of the exchanged Millennium stock as provided for herein. Upon the
consummation of the transaction contemplated herein, Millennium shall merge
with Graduated Plastics and become the surviving corporation.
1.2 Agreement of Majority Shareholder. It is further understood
that in addition to the shares being distributed in Section 1.1, upon the
execution of this Plan, VIP Worldnet, Inc. (the majority shareholder of
Millennium) has agreed as part of the Plan, to transfer and deliver
8,000,000 restricted common shares of Millennium to SCAC Holdings, Inc., as
further consideration pursuant to this Plan. The 8,000,000 common shares
of Millenium are are free and clear of all liens, pledges, encumbrances,
charges or known claims of any kind, nature or description.
1.3 Anti-Dilution. For all relevant purposes of this Plan, the
number of Millennium shares to be issued and delivered pursuant to this
Plan shall be appropriately adjusted to take into account any stock split,
stock dividend, reverse stock split, recapitalization, or similar change in
Millennium common stock, which may occur between the date of the execution
of this Plan and the date of the delivery of such shares.
1.4 Delivery of Certificates. The Shareholders shall transfer
to Millennium at the closing provided for in Section 2 (the "Closing") the
shares of common stock of Graduated Plastics listed opposite their
respective names on Exhibit A hereto (the "Graduated Plastics shares") in
exchange for shares of the common stock of Millennium as outlined above in
Section 1.1 and 1.2 hereof (the "Millennium Stock"). All of such shares of
Millennium stock shall be issued at the closing to the Shareholders, in the
numbers shown opposite their respective names in Exhibit "A." The transfer
of Graduated Plastics shares by the Shareholders shall be effected by the
delivery to Millennium at the Closing of certificates representing the
transferred shares endorsed in blank or accompanied by stock powers
executed in blank, with all signatures guaranteed by a national bank and
with all necessary transfer taxes and other revenue stamps affixed and
acquired at the Shareholders' expense.
1.5 Further Assurances. Subsequent to the execution hereof, and
from time to time thereafter, the Shareholders shall execute such
additional instruments and take such other action as Millennium may request
in order to more effectively sell, transfer and assign clear title and
ownership in the Graduated Plastics shares to Millennium.
Section 2
Closing
2.1 Closing. The Closing contemplated by Section 1.3 shall be
held on or before November 23, 1999 or at such other time or place as may
be mutually agreed upon in writing by the parties. The Closing may also be
accomplished by wire, express mail or other courier service, conference
telephone communications or as otherwise agreed by the respective parties
or their duly authorized representatives. In any event, the closing of the
transactions contemplated by this Plan shall be effected as soon as
practicable after all of the conditions contained herein have been
satisfied.
2.2 Closing Events. At the Closing, each of the respective
parties hereto shall execute, acknowledge and deliver (or shall cause to be
executed, acknowledged, and delivered) any agreements, resolutions,
rulings, or other instruments required by this Plan to be so delivered at
or prior to Closing, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order
to effectuate or evidence the transaction contemplated hereby. At the
Closing, the current officers and directors of Millennium shall submit
their resignations and appoint the following officers and directors:
Xxxx X. Xxxxxxxx President, Secretary/Treasurer and Director
Xxxxxxx X. Xxxxxx Vice President of Product Development and Director
Xxxxx X. Xxxxxx Vice President of Operations and Director
Xxxxx X. Xxxxxx Director
Xxxxxx Xxxxxx Director
Section 3
Representations, Warranties and Covenants of Millennium
Millennium represents and warrants to, and covenants with, the
Shareholders and Graduated Plastics as follows:
3.1 Corporate Status. Millennium is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada. Millennium has full corporate power and is duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business on all material respects
as it is now being conducted, and there is no jurisdiction in which the
character and location of the assets owned by it, or the nature of the
business transacted by it, requires qualification. Included in the
Millennium schedules (defined below) are complete and correct copies of its
Articles of Incorporation and Bylaws as in effect on the date hereof. The
execution and delivery of this Plan does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of
Millennium's Articles of Incorporation or Bylaws. Millennium has taken all
action required by law, its Articles of Incorporation, its Bylaws, or
otherwise, to authorize the execution and delivery of this Plan.
3.2 Capitalization. The authorized capital stock of Millennium
as of the date hereof consists of 50,000,000 common shares, par value
$.001. As of the date hereof there are 17,100,000 common shares of
Millennium issued and outstanding. The common shares of Millennium issued
and outstanding are fully paid, non-assessable shares. There are no
outstanding options, warrants, obligations convertible into shares of
stock, or calls or any understanding, agreements, commitments, contracts or
promises with respect to the issuance of Millennium's common stock or with
regard to any options, warrants or other contractual rights to acquire any
of Millennium's authorized but unissued common shares.
3.3 Financial Statements.
(a) Millennium hereby warrants and covenants to Graduated
Plastics that the financial statements fairly and accurately represent the
financial condition of Millennium and that no material change has occurred
in the financial condition of Millennium.
(b) Millennium hereby warrants and represents that the
financial statements for the periods set forth in subparagraph (a), supra,
fairly and accurately represent the financial condition of Millennium as
submitted heretofore to Graduated Plastics for examination and review.
3.4 Conduct of Business. Millennium is a development stage
company and has not been engaged in any operational activities prior to the
date hereof.
3.5 Options, Warrants and Rights. Millennium has no options,
warrants or stock appreciation rights related to the authorized but
unissued Millennium common stock. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and
unissued Millennium common stock, except options, warrants, calls, or
commitments, if any, to which Millennium is not a party and by which it is
not bound.
3.6 Title to Property. Millennium has good and marketable title
to all of its properties and assets, real and personal, proprietary or
otherwise, as will be reflected in the balance sheets of Millennium, and
the properties and assets of Millennium are subject to no mortgage, pledge,
lien or encumbrance, unless as otherwise disclosed in its financial
statements.
3.7 Litigation. There are no material actions, suits, or
proceedings, pending, or, to the best knowledge of Millennium, threatened
by or against or effecting Millennium at law or in equity, or before any
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind; Millennium does not have any knowledge of any
default on its part with respect to any judgment, order, writ, injunction,
decree, warrant, rule, or regulation of any court, arbitrator, or
governmental agency or instrumentality.
3.8 Books and Records. From the date hereof, and for any
reasonable period subsequent thereto, Millennium and its present management
will (i) give to the Shareholders and Graduated Plastics, or their duly
authorized representatives, full access, during normal business hours, to
all of its books, records, contracts and other corporate documents and
properties so that the Shareholders and Graduated Plastics, or their duly
authorized representatives, may inspect them; and (ii) furnish such
information concerning the properties and affairs of Millennium as the
Shareholders and Graduated Plastics, or their duly authorized
representatives, may reasonably request. Any such request to inspect
Millennium's books shall be directed to Millennium's counsel, Xxxxxx X.
Xxxxxxx, at the address set forth herein under Section 10.4 Notices.
3.9 Confidentiality. Until the Closing (and thereafter if there
is no Closing), Millennium and its representatives will keep confidential
any information which they obtain from the Shareholders or from Graduated
Plastics concerning its properties, assets and the proposed business
operations of Graduated Plastics. If the terms and conditions of this Plan
imposed on the parties hereto are not consummated on or before 5:00 p.m.
MST on November 23, 1999 or otherwise waived or extended in writing to a
date mutually agreeable to the parties hereto, Millennium will return to
Graduated Plastics all written matter with regard to Graduated Plastics
obtained in connection with the negotiations or consummation of this Plan.
3.10 Conflict with Other Instruments. The transactions
contemplated by this Plan will not result in the breach of any term or
provision of, or constitute a default under any indenture, mortgage, deed
of trust, or other material agreements or instrument to which Millennium
was or is a party, or to which any of its assets or operations are subject,
and will not conflict with any provision of the Articles of Incorporation
or Bylaws of Millennium.
3.11 Corporate Authority. Millennium has full corporate power
and authority to enter into this Plan and to carry out its obligations
hereunder and will deliver to the Shareholders and Graduated Plastics, or
their respective representatives, at the Closing, a certified copy of
resolutions of its Board of Directors authorizing execution of this Plan by
its officers and performance thereunder.
3.12 Consent of Shareholders. Millennium hereby warrants and
represents that the shareholders of Millennium, being the owners of a
majority of the issued and outstanding stock of the Corporation consented
in writing to the authorization to execute this Agreement and Plan of
Merger as between Millennium and Graduated Plastics pursuant to a stock-for-
stock transaction in which Millennium would acquire one hundred percent of
the issued and outstanding shares of Graduated Plastics in exchange for the
issuance of a total of 6,750,000 common shares of Millennium and thereby
Graduated Plastics shall merge with and into Millennium.
3.13 Special Covenants and Representations Regarding the
Exchanged Millennium Stock. The consummation of this Plan and the
transactions herein contemplated include the issuance of the exchanged
Millennium shares to the Shareholders, which constitutes an offer and sale
of securities under the Securities Act of 1933, as amended, and applicable
states' securities laws. Such transaction shall be consummated in reliance
on exemptions from the registration and prospectus requirements of such
statutes which depend interlace on the circumstances under which the
Shareholders acquire such securities. In connection with the reliance upon
exemptions from the registration and prospectus delivery requirements for
such transactions, at the Closing, Shareholders shall cause to be delivered
to Millennium a Letter(s) of Investment Intent in the form attached hereto
as Exhibit B and incorporated herein by reference.
3.14 Undisclosed or Contingent Liabilities. Millennium hereby
represents and warrants that it has no undisclosed or contingent
liabilities which have not been disclosed to Graduated Plastics in writing
or in this Agreement or in any exhibit attached hereto.
3.15 Information. The information concerning Millennium set
forth in this Plan, and the Millennium schedules attached hereto, are
complete and accurate in all material respects and do not contain, or will
not contain, when delivered, any untrue statement or a material fact or
omit to state a material fact the omission of which would be misleading to
Graduated Plastics in connection with this Plan.
3.16 Title and Related Matters. Millennium has good and
marketable title to all of its properties, interests in properties, and
assets, real and personal, which are reflected, or will be reflected, in
the Millennium balance sheets, free and clear of any and all liens and
encumbrances.
3.17 Contracts or Agreements. Millennium is not bound by any
material contracts, agreements or obligations which it has not already
disclosed to Graduated Plastics in writing or in this Agreement or in any
Exhibit attached hereto.
3.18 Governmental Authorizations. Millennium has all licenses,
franchises, permits and other government authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted on the date hereof.
3.19 Compliance with Laws and Regulations. Millennium has
complied with all applicable statutes and regulations of any federal,
state, or other applicable jurisdiction or agency thereof, except to the
extent that noncompliance would not materially and adversely effect the
business, operations, properties, assets, or condition of Millennium or
except to the extent that noncompliance would not result in the occurrence
of any material liability, not otherwise disclosed to Graduated Plastics.
3.20 Approval of Plan. The Board of Directors of Millennium has
authorized the execution and delivery of this Plan by Millennium and have
approved the Plan and the transactions contemplated hereby. Millennium has
full power, authority, and legal right to enter into this Plan and to
consummate the transactions contemplated hereby.
3.21 Investment Intent. Millennium is acquiring the Graduated
Plastics shares to be transferred to it under this Plan for the purpose of
merging with Graduated Plastics and not with a view to the sale or
distribution thereof, and Millennium shall cancel the Graduated Plastics
shares upon the completion of the merger.
3.22 Unregistered Shares and Access to Information. Millennium
understands that the offer and sale of the Graduated Plastics shares have
not been registered with or reviewed by the Securities and Exchange
Commission under the Securities Act of 1933, as amended, or with or by any
state securities law administrator, and no federal, state securities law
administrator has reviewed or approved any disclosure or other material
concerning Graduated Plastics or the Graduated Plastics shares. Millennium
has been provided with and reviewed all information concerning Graduated
Plastics, the Graduated Plastics shares as it has considered necessary or
appropriate as a prudent and knowledgeable investor to enable it to make an
informed investment decision concerning the Graduated Plastics shares.
Millennium has made an investigation as to the merits and risks of its
acquisition of the Graduated Plastics Shares and has had the opportunity to
ask questions of, and has received satisfactory answers from, the officers
and directors of Graduated Plastics concerning Graduated Plastics, the
Graduated Plastics shares and related matters, and has had an opportunity
to obtain additional information necessary to verify the accuracy of such
information and to evaluate the merits and risks of the proposed
acquisition of the Graduated Plastics shares.
3.23 Obligations. Millennium has no outstanding obligations to
any of its employees or consultants.
3.24 Millennium Schedules. Millennium has delivered to
Graduated Plastics the following items listed below, hereafter referred to
as the "Millennium Schedules", which are hereby incorporated by reference
and made a part hereof. A certification executed by a duly authorized
officer of Millennium on or about the date of the Plan will be executed to
certify that the Millennium Schedules are true and correct.
(a) Copy of Articles of Incorporation and Bylaws, as
amended;
(b) Financial statements;
(c) Shareholder list;
(d) Resolutions of Directors approving Plan;
(e) Consent of Shareholders approving Plan;
(f) Officers' Certificate as required under Section
6.2 of the Plan;
(g) Opinion of counsel as required under Section 6.4
of the Plan;
(h) Certificate of Good Standing;
Section 4
Representations, Warranties and Covenants of Graduated Plastics
Graduated Plastics represents and warrants to, and covenants
with, the Shareholders and Millennium as follows:
4.1 Corporate Status. Graduated Plastics is a corporation duly
organized, validly existing and in under the laws of Nevada, incorporated
on August 2, 1999. Graduated Plastics has full corporate power and is duly
authorized, qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own all of its
properties and assets and to carry on its business on all material respects
as it is now being conducted, and there is no jurisdiction in which the
character and location of the assets owned by it, or the nature of the
business transacted by it, requires qualification. Included in the
Graduated Plastics schedules (defined below) are complete and correct
copies of its Articles of Incorporation and Bylaws as in effect on the date
hereof. The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Graduated Plastics's Articles of Incorporation or Bylaws.
Graduated Plastics has taken all action required by law, its Articles of
Incorporation, its Bylaws, or otherwise, to authorize the execution and
delivery of this Plan.
4.2 Capitalization. The authorized capital stock of Graduated
Plastics as of the date hereof consists of 25,000,000 common shares, par
value $.001 and 10,000,000 preferred shares, par value $.001. As of the
date hereof there are 2,750,000 common shares of Graduated Plastics issued
and outstanding. The foregoing shares are fully paid, non-assessable
shares. There are no preferred shares issued and outstanding.
4.3 Conduct of Business. Graduated Plastics will use its best
efforts to maintain and preserve its business organization, employee
relationships and goodwill intact, and will not, without the prior written
consent of Millennium, enter into any material commitments from the date of
execution of the Plan and through the closing of the Plan.
Graduated Plastics agrees that Graduated Plastics will conduct
itself in the following manner pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change
will be made in the Certificate of Incorporation or Bylaws of Graduated
Plastics.
(b) Capitalization, etc. Graduated Plastics will not make
any change in its authorized or issued shares of any class, declare or pay
any dividend or other distribution, or issue, encumber, purchase or
otherwise acquire any of its shares of any class.
4.4 Title to Property. Graduated Plastics has good and
marketable title to all of its properties and assets, real and personal,
proprietary or otherwise, as will be reflected in the balance sheets of
Graduated Plastics, and the properties and assets of Graduated Plastics are
subject to no mortgage, pledge, lien or encumbrance, unless as otherwise
disclosed in its financial statements.
4.5 Litigation. There are no material actions, suits, or
proceedings, pending, or, to the best knowledge of Graduated Plastics,
threatened by or against or effecting Graduated Plastics at law or in
equity, or before any governmental agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind; Graduated Plastics does not
have any knowledge of any default on its part with respect to any judgment,
order, writ, injunction, decree, warrant, rule, or regulation of any court,
arbitrator, or governmental agency or instrumentality.
4.6 Books and Records. From the date hereof, and for any
reasonable period subsequent thereto, Graduated Plastics and its present
management will (i) give to Millennium, or their duly authorized
representatives, full access, during normal business hours, to all of its
books, records, contracts and other corporate documents and properties so
that Millennium, or their duly authorized representatives, may inspect
them; and (ii) furnish such information concerning the properties and
affairs of Graduated Plastics as the Shareholders and Graduated Plastics,
or their duly authorized representatives, may reasonably request. Any such
request to inspect Graduated Plastics's books shall be directed to
Graduated Plastics's representative, at the address set forth herein under
Section 10.4 Notices.
4.7 Confidentiality. Until the Closing (and thereafter if there
is no Closing), Graduated Plastics and its representatives will keep
confidential any information which they obtain from the Shareholders or
from Graduated Plastics concerning its properties, assets and the proposed
business operations of Graduated Plastics. If the terms and conditions of
this Plan imposed on the parties hereto are not consummated on or before
5:00 p.m. MST on November 23, 1999, or otherwise waived or extended in
writing to a date mutually agreeable to the parties hereto, Graduated
Plastics will return to Millennium all written matter with regard to
Millennium obtained in connection with the negotiations or consummation of
this Plan.
4.8 Investment Intent. The Shareholders represent and covenant
that they are acquiring the unregistered and restricted common shares of
Millennium to be delivered to them under this Plan for investment purposes
and not with a view to the subsequent sale or distribution thereof, and as
agreed, supra, the Shareholders, their successors and assigns agree to
execute and deliver to Millennium on the date of Closing or no later than
the date on which the restricted shares are issued and delivered to the
Shareholders, their assigns, or designees, an Investment Letter similar in
form to that attached hereto as Exhibit B.
4.9 Unregistered Shares and Access to Information. Graduated
Plastics and the Shareholders understand that the offer and sale of
Millennium shares to be exchanged for the Graduated Plastics shares have
not been registered with or reviewed by the securities and Exchange
Commission under the Securities Act of 1933, as amended, or with or by any
state securities law administrator, and no federal or state securities law
administrator has reviewed or approved any disclosure or other material
facts concerning Millennium or Millennium stock. Graduated Plastics and
the Shareholders have been provided with and reviewed all information
concerning Millennium and Millennium shares, to be exchanged for the
Graduated Plastics shares as they have considered necessary or appropriate
as prudent and knowledgeable investors to enable them to make informed
investment decisions concerning the Millennium shares, to be exchanged for
the Graduated Plastics shares. Graduated Plastics and the Shareholders
have made an investigation as to the merits and risks of their acquisition
of the Millennium shares, to be exchanged for the Graduated Plastics shares
and have had the opportunity to ask questions of, and have received
satisfactory answers from, the officers and directors of Millennium
concerning Millennium shares to be exchanged for the Graduated Plastics
shares and related matters, and have had an opportunity to obtain
additional information necessary to verify the accuracy of such information
and to evaluate the merits and risks of the proposed acquisition of the
Millennium shares to be exchanged for the Graduated Plastics shares.
4.10 Title to Shares. The Shareholders are the beneficial and
record owners, free and clear of any liens and encumbrances, of whatever
kind or nature, of all of the shares of Graduated Plastics of whatever
class or series, which the Shareholders have contracted to exchange.
4.11 Contracts. Graduated Plastics is not a party to any
material oral or written (i) contract for employment of any officer which
is not terminable on 30 days (or less) notice; (ii) profit sharing, bonus,
deferred compensation, severance, or any other retirement plan of
arrangement covered by Title IV of the Employee Retirement Income Security
Act, as amended, or otherwise covered; (iii) agreement providing for the
sale, assignment or transfer of any of its rights, assets or properties,
whether tangible or intangible, except sales of its property in the
ordinary course of business with a value of less than $2,000; or (iv)
waiver of any right of any value which in the aggregate is extraordinary or
material concerning the assets or properties scheduled by Graduated
Plastics, except for adequate value and pursuant to contract. Graduated
Plastics has not entered into any material transaction which is not listed
in the Graduated Plastics Schedules or reflected in the Graduated Plastics
financial statements.
4.12 Material Contract Defaults. Graduated Plastics is not in
default in any material respect under the terms of any contract, agreement,
lease or other commitment which is material to the business, operations,
properties or assets, or condition of Graduated Plastics, and there is no
event of default or event which, with notice of lapse of time or both,
would constitute a default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which Graduated
Plastics has not taken adequate steps to prevent such default from
occurring, or otherwise compromised, reached a satisfaction of, or provided
for extensions of time in which to perform under any one or more contract
obligations.
4.13 Conflict with Other Instruments. The consummation of the
within transactions will not result in the breach of any term or provision
of, or constitute a default under any indenture, mortgage, deed of trust,
or other material agreement or instrument to which Graduated Plastics was
or is a party, or to which any of its assets or operations are subject, and
will not conflict with any provision of the Articles of Incorporation or
Bylaws of Graduated Plastics.
4.14 Governmental Authorizations. Graduated Plastics is in good
standing in the State of Nevada. Except for compliance with federal and
state securities laws, no authorization, approval, consent or order of, or
registration, declaration, or filing with, any court or other governmental
body is required in connection with the execution and delivery by Graduated
Plastics of this Plan and the consummation by Graduated Plastics of the
transactions contemplated hereby.
4.15 Compliance with Laws and Regulations. Graduated Plastics
has complied with all applicable statutes and regulations of any federal,
state, or other applicable jurisdiction or agency thereof, except to the
extent that noncompliance would not materially and adversely effect the
business, operations, properties, assets, or condition of Graduated
Plastics or except to the extent that noncompliance would not result in the
occurrence of any material liability, not otherwise disclosed to
Millennium.
4.16 Approval of Plan. The Board of Directors of Graduated
Plastics have authorized the execution and delivery of this Plan by
Graduated Plastics and have approved the Plan and the transactions
contemplated hereby. Graduated Plastics has full power, authority, and
legal right to enter into this Plan and to consummate the transactions
contemplated hereby.
4.17 Information. The information concerning Graduated Plastics
set forth in this Plan, and the Graduated Plastics Schedules attached
hereto, are complete and accurate in all material respects and do not
contain, or will not contain, when delivered, any untrue statement or a
material fact or omit to state a material fact the omission of which would
be misleading to Millennium in connection with this Plan.
4.18 Graduated Plastics Schedules. Graduated Plastics has
delivered to Millennium the following items listed below, hereafter
referred to as the "Graduated Plastics Schedules", which is hereby
incorporated by reference and made a part hereof. A certification executed
by a duly authorized officer of Graduated Plastics on or about the date
within the Plan is executed to certify that the Graduated Plastics
Schedules are true and correct.
(a) Copy of Articles of Incorporation and Bylaws;
(b) Financial Statements;
(c) Resolutions of Board of Directors approving Plan;
(d) Consent of Shareholders approving Plan - All
shareholders consented by executing Agreement and Plan
of Merger;
(e) A schedule showing the name and location of each bank
or other institution with which Graduated Plastics has an account;
(f) A schedule setting forth all material contracts;
(g) A schedule setting forth the shareholders, together
with the number of shares owned beneficially or of record by each (also
attached as Exhibit A);
(h) Officers' Certificate as required by Section 7.2 of the
Plan;
(i) Patents Pending;
(j) Certificate of Good Standing
Section 5
Special Covenants
5.1 Resignation of Directors. At the Closing, all of
Millennium's current officers and directors will resign from their
respective positions, in seriatim.
5.2 Graduated Plastics Information Incorporated in Millennium's
Reports. Graduated Plastics represents and warrants to Millennium that all
the information furnished under this Plan shall be true and correct in all
material respects and that there is no omission of any material fact
required to make the information stated not misleading. Graduated Plastics
agrees to indemnify and hold Millennium harmless, including each of its
Directors and Officers, and each person, if any, who controls such party,
under any applicable law from and against any and all losses, claims,
damages, expenses or liabilities to which any of them may become subject
under applicable law, or reimburse them for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such actions, whether or not resulting in liability, insofar as such
losses, claims, damages, expenses, liabilities or actions arise out of or
are based on any untrue statement, or omission of a material fact contained
in such information delivered hereunder.
5.3 Millennium Information Incorporated in Graduated Plastics's
Reports. Millennium represents and warrants to Graduated Plastics that all
the information furnished under this Plan shall be true and correct in all
material respects and that there is no omission of any material fact
required to make the information stated not misleading. Millennium and the
current officers and directors of Millennium agree to indemnify and hold
Graduated Plastics harmless, including each of its Directors and Officers,
and each person, if any, who controls such party, under any applicable law
from and against any and all losses, claims, damages, expenses or
liabilities to which any of them may become subject under applicable law,
or reimburse them for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such actions,
whether or not resulting in liability, insofar as such losses, claims,
damages, expenses, liabilities or actions arise out of or are based on any
untrue statement, or omission of a material fact contained in such
information delivered hereunder.
5.4 Special Covenants and Representations Regarding the
Exchanged Millennium Stock. The consummation of this Plan and the
transactions herein contemplated, including the issuance of the Millennium
shares in exchange for one hundred percent (100%) of the issued and
outstanding shares of Graduated Plastics to the Shareholders constitutes
the offer and sale of securities under the Securities Act and the
applicable state statutes, which depend, inter alia, on the circumstances
under which the Shareholders acquire such securities. Millennium intends
to rely on the exemption of the registration provision of Section 5 of the
Securities Act as provided for under Section 4.2 of the Securities Act of
1933, which states "transactions not involving a public offering", among
others. Each Shareholder upon submission of his Graduated Plastics shares
and the receipt of the Millennium shares exchanged therefor, shall execute
and deliver to Millennium a letter of investment intent to indicate, among
other representations, that the Shareholder is exchanging the Graduated
Plastics shares for Millennium shares for investment purposes and not with
a view to the subsequent distribution thereof. A proposed Investment
Letter is attached hereto as Exhibit B and incorporated herein by reference
for the general use by the Shareholders, as they may determine.
5.5 Action Prior to Closing. Upon the execution hereof until
the Closing date,
(a) Graduated Plastics and Millennium will (i) perform all
of their obligations under material contracts, leases, insurance policies
and/or documents relating to their assets and business; (ii) use their best
efforts to maintain and preserve their business organization intact, to
retain their key employees, and to maintain its relationship with existing
potential customers and clients; and (iii) fully comply with and perform in
all material respects all duties and obligations imposed on them by all
federal and state laws and all rules, regulations, and orders imposed by
all federal or state governmental authorities.
(b) Neither Graduated Plastics nor Millennium will (i) make
any change in their Articles of Incorporation or Bylaws except and unless
as contemplated pursuant to Section 3 and Section 5 of this Plan; (ii)
enter into or amend any contract, agreement, or other instrument of the
types described in the parties' schedules, except that a party may enter
into or amend any contract or other instrument in the ordinary course of
business involving the sale of goods or services, provided that such
contract does not involve obligations in excess of $10,000.
Section 6
Conditions Precedent to Obligations of
Graduated Plastics and the Shareholders
All obligations of Graduated Plastics and the Shareholders under
this Plan are subject to the satisfaction, on or before the Closing date,
except as otherwise provided for herein, or waived or extended in writing
by the parties hereto, of the following conditions:
6.1 Accuracy of Representations. The representations and
warranties made by Millennium in this Plan were true when made and shall be
true as of the Closing date (except for changes therein permitted by this
Plan) with the same force and effect as if such representations and
warranties were made at and as of the Closing date; and, Millennium shall
have performed and complied with all aspects of this Agreement, unless
waived or extended in writing by the parties hereto. Graduated Plastics
shall have been furnished with a certificate, signed by a duly authorized
executive officer of Millennium and dated the Closing date, to the
foregoing effect.
6.2 Officers' Certificate. Graduated Plastics and the
Shareholders shall have been furnished with a certificate dated the Closing
date and signed by a duly authorized executive officer of Millennium, to
the effect that no litigation, proceeding, investigation, claim, demand or
inquiry is pending, or to the best knowledge of Millennium, threatened,
which might result in an action to enjoin or prevent the consummation of
the transactions contemplated by this Plan, or which might result in any
material adverse change in the assets, properties, business, or operations
of Millennium, and that this Agreement has been complied with in all
material respects.
6.3 No Material Adverse Change. Prior to the Closing date,
there shall have not occurred any material adverse change in the financial
condition, business or operations of Millennium, nor shall any event have
occurred which, with lapse of time or the giving of notice or both, may
cause or create any material adverse change in the financial condition,
business or operations of Millennium, except as otherwise disclosed to
Graduated Plastics.
6.4 Opinion of Counsel of Millennium. Millennium shall furnish
to Graduated Plastics and the Shareholders an opinion dated as of the
Closing date and in form and substance satisfactory to Graduated Plastics
and the Shareholders to the effect that:
(a) Millennium is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada, and
with all requisite corporate power to perform its obligations under this
Plan.
(b) The business of Millennium, as presently conducted,
including, upon the consummation hereof, the ownership of all of the issued
and outstanding shares of Graduated Plastics, does not require it to
register it to do business as a foreign corporation on any jurisdiction
other than under the jurisdiction of its Articles of Incorporation or
Bylaws and Millennium has complied to the best of its knowledge in all
material respects with all the laws, regulations, licensing requirements
and orders applicable to its business activities and has filed with the
proper authorities, including the Department of Commerce, Division of
Corporations, and Secretary of State for the State of Nevada, all
statements and reports required to be filed.
(c) The authorized and outstanding capital stock of
Millennium as set forth in Section 3.2 above, and all issued and
outstanding shares have been duly and validly authorized and issued and are
fully paid and non-assessable.
(d) There are no material claims, suits or other legal
proceedings pending or threatened against Millennium of any court or before
or by any governmental body which might materially effect the business of
Millennium or the financial condition of Millennium as a whole and no such
claims, suits or legal proceedings are contemplated by governmental
authorities against Millennium.
(e) To the best knowledge of such counsel, the consummation
of the transactions contemplated by this Plan will not violate or
contravene the provisions of the Certificate of Incorporation or Bylaws of
Millennium, or any contract, agreement, indenture, mortgage, or order by
which Millennium is bound.
(f) This Plan constitutes a legal, valid and binding
obligation of Millennium enforceable in accordance with its terms, subject
to the effect of any bankruptcy, insolvency, reorganization, moratorium, or
similar law effecting creditors' rights generally and general principles of
equity (regardless of whether such principles are considered in a
proceeding in equity or law).
(g) The execution and delivery of this Plan and the
consummation of the transactions contemplated hereby have been ratified by
a majority of the Shareholders of Millennium and have been duly authorized
by its Board of Directors.
(h) Millennium has not, nor will it undertake any action,
the result of which would endanger the tax-free nature of the Plan.
6.5 Good Standing. Graduated Plastics shall have received a
Certificate of Good Standing from the State of Nevada, dated within ninety
(90) days prior to Closing, but in no event later than ten days subsequent
to the execution hereof certifying that Millennium is in good standing as a
corporation in the State of Nevada.
6.6 Other Items. Graduated Plastics and the Shareholders shall
have received such further documents, certifications or instruments
relating to the transactions contemplated hereby as Graduated Plastics and
the Shareholders may reasonably request.
Section 7
Conditions Precedent to Obligations of Millennium
All obligations of Millennium under this Plan are subject, at its
option, to the fulfillment, before the Closing, of each of the following
conditions:
7.1 Accuracy of Representations. The representations and
warranties made by Graduated Plastics and the Shareholders under this Plan
were true when made and shall be true as of the Closing date (except for
changes therein permitted by this Plan) with the same force and effect as
if such representations and warranties were made at and as of the Closing
date; and, Millennium shall have performed and complied with all aspects of
this Agreement, unless waived or extended in writing by the parties hereto.
Millennium shall have been furnished with a certificate, signed by a duly
authorized executive officer of Graduated Plastics and dated the Closing
date, to the foregoing effect.
7.2 Officers' Certificate. Millennium shall have been furnished
with a certificate dated the Closing date and signed by a duly authorized
executive officer of Graduated Plastics, to the effect that no litigation,
proceeding, investigation, claim, deed, or inquiry is pending, or to the
best knowledge of Graduated Plastics, threatened, which might result in an
action to enjoin or prevent the consummation of the transactions
contemplated by this Plan, or which might result in any material adverse
change in the assets, properties, business, or operations of Graduated
Plastics, and that this Agreement has been complied with in all material
respects.
7.3 No Material Adverse Change. Prior to the Closing date,
there shall have not occurred any material adverse change in the financial
condition, business or operations of Millennium, nor shall any event have
occurred which, with lapse of time or the giving of notice or both, may
cause or create any material adverse change in the financial condition,
business or operations of Graduated Plastics, except as otherwise disclosed
to Millennium.
7.4 Dissenters' Rights Waived. Shareholders representing one
hundred percent (100%) of the issued and outstanding shares of Graduated
Plastics, and each of them, have agreed and hereby waive any dissenters'
rights, if any, under the laws of the State of Nevada in regards to any
objection to this Plan as outlined herein and otherwise consent to and
agree and authorize the execution and consummation of the within Plan in
accordance to the terms and conditions of this Plan by Graduated Plastics.
7.5 Other Items. Millennium shall have received such further
documents, certifications or instruments relating to the transactions
contemplated hereby as Millennium may reasonably request.
7.6 Execution of Investment Letter. The Shareholders shall have
executed and delivered copies of Exhibit B to Millennium.
Section 8
Termination
8.1 Termination by Graduated Plastics or the Shareholders. This
Plan may be terminated at any time prior to the Closing date by action of
Graduated Plastics or the Shareholders, if Millennium shall fail to comply
in any material respect with any of the covenants or agreements contained
in this Plan, or if any of its representations and warranties contained
herein shall be inaccurate in any material respect.
8.2 Termination by Millennium. This Plan may be terminated at
any time prior to the Closing date by action of Millennium if Graduated
Plastics shall fail to comply in any material respect with any of the
covenants or agreements contained in this Plan, or if any of its
representations or warranties contained herein shall be inaccurate in any
material respect.
8.3 Termination by Mutual Consent
(a) This Plan may be terminated at any time prior to the
Closing date by mutual consent of Millennium, expressed by action of its
Board of Directors, Graduated Plastics or the Shareholders.
(b) If this Plan is terminated pursuant to Section 8, this
Plan shall be of no further force and effect and no obligation, right or
liability shall arise hereunder. Each party shall bare its own costs in
connection herewith.
Section 9
Shareholders' Representative
The Shareholders hereby irrevocably designate and appoint Xxxx
Xxxxxxxx, as their agent and attorney in fact (the "Shareholders'
Representative") with full power and authority until the Closing to
execute, deliver and receive on their behalf all notices, requests and
other communications hereunder; to fix and alter on their behalf the date,
time and place of the Closing; to waive, amend or modify any provisions of
this Plan and to take such other action on their behalf in connection with
this Plan, the Closing and the transactions contemplated hereby as such
agent deems appropriate; provided, however, that no such waiver, amendment
or modification may be made if it would decrease the number of shares to be
issued to the Shareholders under Section 1 hereof or increase the extent of
their obligation to Millennium hereunder, unless agreed in writing by the
Shareholders.
Section 10
General Provisions
10.1 Further Assurances. At any time, and from time to time,
after the Closing date, each party will execute such additional instruments
and take such action as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or otherwise
to carry out the intent and purposes of the Plan.
10.2 Consolidated Financial Statements. As soon as practicable
after the closing Graduated Plastics and the Shareholders shall cause to
have consolidated financial statements prepared.
10.3 Payments of Costs and Fees. Millennium and Graduated
Plastics shall each bear their own costs and expenses, including any legal
and accounting fees in connection with the negotiation, execution and
consummation of the Plan.
10.4 Press Release and Shareholders' Communications. On the
date of Closing, or as soon thereafter as practicable, Graduated Plastics
and the Shareholders shall cause to have promptly prepared and disseminated
a news release concerning the execution and consummation of the Plan, such
press release and communication to be released promptly and within the time
required by the laws, rules and regulations as promulgated by the United
States Securities and Exchange Commission, and concomitant therewith to
cause to be prepared a full and complete letter to Millennium's
shareholders which shall contain information required by Regulation 240.14f-
1 as promulgated under Section 14(f) as mandated under the Securities and
Exchange Act of 1934, as amended.
10.5 Notices. All notices and other communications required or
permitted hereunder shall be sufficiently given if personally delivered,
sent by registered mail, or certified mail, return receipt requested,
postage prepaid, or by facsimile transmission addressed to the following
parties hereto or at such other addresses as follows:
If to Millennium: Millennium Plastics Corporation
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
If to Graduated Plastics: Graduated Plastics, Inc.
0000 Xxxxx
Xxx Xxxxx, Xxxxxx 00000
If to the Shareholders: Xxxx Xxxxxxxx
5631 Pecos
Xxx Xxxxx, Xxxxxx 00000
or at such other addresses as shall be furnished in writing by any party in
the manner for giving notices hereunder, and any such notice or
communication shall be deemed to have been given as of the date so
delivered, mailed, sent by facsimile transmission, or telegraphed.
10.6 Entire Agreement. This Plan represents the entire
agreement between the parties relating to the subject matter hereof,
including any previous letters of intent, understandings, or agreements
between Millennium, Graduated Plastics and the Shareholders with respect to
the subject matter hereof, all of which are hereby merged into this Plan,
which alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. Excepting the foregoing agreement,
there are no other courses of dealing, understandings, agreements,
representations, or warranties, written or oral, except as set forth
herein.
10.7 Governing Law. This Plan shall be governed by and
construed and enforced in accordance with the laws of the State of Nevada,
except to the extent preempted by federal law, in which event (and to that
extent only) federal law shall govern.
10.8 Tax Treatment. The transaction contemplated by this Plan
is intended to qualify as a "tax-free" reorganization under the provisions
of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
Graduated Plastics and Millennium acknowledge, however, that each are being
represented by their own tax advisors in connection with this transaction,
and neither has made any representations or warranties to the other with
respect to treatment of such transaction or any part or effect thereof
under applicable tax laws, regulations or interpretations; and no
attorney's opinion or tax revenue ruling has been obtained with respect to
the tax consequences of the transactions contemplated by the within Plan.
10.9 Attorney Fees. In the event that any party prevails in any
action or suit to enforce this Plan, or secure relief from any default
hereunder or breach hereof, the nonprevailing party or parties shall
reimburse the prevailing party or parties for all costs, including
reasonable attorney fees, incurred in connection therewith.
10.10 Amendment of Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether
conferred herein, at law or in equity, and may be enforced concurrently or
separately, and no waiver by any party of the performance of any obligation
by the other shall be construed as a waiver of the same or any other
default then, therefore, or thereafter occurring or existing. Any time
prior to the expiration of thirty (30) days from the date hereof, this Plan
may be amended by a writing signed by all parties hereto, with respect to
any of the terms contained herein, and any term or condition of this Plan
may be waived or the time for performance thereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
10.11 Counterparts. This Plan may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to
be an original, and all of which together shall constitute one and the same
instruments.
10.12 Headings. The section and subsection headings in this
Plan are inserted for convenience only and shall not effect in any way the
meaning or interpretation of the Plan.
10.13 Parties in Interest. Except as may be otherwise expressly
provided herein, all terms and provisions of this Plan shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, beneficiaries, personal and legal representatives, and assigns.
IN WITNESS WHEREOF, the parties have executed this Plan and
Agreement of Merger effective the day and year first set forth above.
MILLENNIUM PLASTICS CORPORATION
Attest:
_____________________ By/s/ Xxxxxx Mayor
Its President
GRADUATED PLASTICS, INC.
Attest:
_____________________ By /s/ Xxxx Xxxxxxxx
Its President
SHAREHOLDERS
Attest:
_____________________ By /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Attest:
_____________________ By /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxxx and Xxxxx Xxxxxx
Xxxxx And Xxxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
Attest:
_____________________ By /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Attest:
_____________________ By /s/ Xxxxxx Xxxx
Xxxxxx Xxxx
Attest:
_____________________ By /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Attest:
_____________________ By /s/ Xxxxx Xxxxxx
Xxxxx X. Xxxxxx
Attest:
_____________________ By /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Augeous Partners
Attest:
_____________________ By /s/ Augeous Partners
Transint Consutancy & Holdings
Attest:
_____________________ By /s/ Transint Consutancy & Holdings
Willow Holdings
Attest:
_____________________ By /s/ Willow Holdings
Event Management Incentives
Attest:
_____________________ By /s/ Event Management Incentives
Kidakus Consulting S.A.
Attest:
_____________________ By /s/ Kidakus Consulting
NAME AND LOCATION OF GRADUATED PLASTICS, INC.'S
BANK ACCOUNT
BANK OF AMERICA
X.X. XXX 000
XXXXXXXXX, XX 00000
SIGNER: XXXX XXXXXXXX
SHAREHOLDERS OF GRADUATED PLASTICS CORPORATION
Name Shares
Xxxxxx Xxxxxx 100,000
Xxxxxxx Xxxxxx 50,000
Xxxxxxxx Xxxxxx 50,000
Xxxx Xxxxxx 50,000
Xxxx Xxxxxxxx 250,000
Xxxxxxx Xxxxxx 25,000
Xxxxx And Xxxxx Xxxxxx 50,000
Xxxxxxxx Xxxxxxxxx 25,000
Xxxxxx Xxxxxx 100,000
Xxxxxx Xxxx 50,000
Event Management Incentives 100,000
Kidakus Consulting S.A. 1,200,000
Transint Consutancy & Holdings 500,000
Willow Holdings 400,000
Xxxxxxx Xxxxxxxxx 600,000
Xxxxx X. Xxxxxx 600,000
Xxxx Xxxxxx 600,000
Augeous Partners 600,000
TOTAL 6,050,000 Shares
EXHIBIT A
Graduated Plastics Public Company
Name Shares Shares
Xxxxxx Xxxxxx 100,000
Xxxxxxx Xxxxxx 50,000
Xxxxxxxx Xxxxxx 50,000
Xxxx Xxxxxx 50,000
Xxxx Xxxxxxxx 250,000
Xxxxxxx Xxxxxx 25,000
Xxxxx And Xxxxx Xxxxxx 50,000
Xxxxxxxx Xxxxxxxxx 25,000
Xxxxxx Xxxxxx 100,000
Xxxxxx Xxxx 50,000
Event Management Incentives 100,000
Kidakus Consulting S.A. 1,200,000
Transint Consutancy & Holdings 500,000
Willow Holdings 400,000
Xxxxxxx Xxxxxxxxx 600,000
Xxxxx X. Xxxxxx 600,000
Xxxx Xxxxxx 600,000
Augeous Partners 600,000
TOTAL 6,050,000
