APPENDIX A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is entered into as
of September 3, 1999 by and between INTERNATIONAL TOURIST ENTERTAINMENT
CORPORATION, a U.S. Virgin Islands corporation (the "Company") with an address
at 0000 Xxxxxxxx xx xxx Xxxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000; and ITEC
Attractions, Inc.("ITEC- NV"), a Nevada corporation, with an address at 0000
Xxxxxxxx xx xxx Xxxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Board of Directors of the Company have determined that it
is in the best interests of the Company and necessary for carrying out its
corporate purposes that the Company change its domicile from the U.S. Virgin
Islands to the State of Nevada.
WHEREAS, the Board of Directors of the Company has caused to be formed
a Nevada corporation, ITEC Attractions, Inc., and has determined to merge the
Company with and into ITEC Attractions, Inc. upon the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
ARTICLE I - THE MERGER
1.1. The Merger. Upon the terms and subject to the conditions of this
Agreement, at the Effective Time (as defined in Section 1.3 of this Agreement),
the Company shall be merged with and into ITEC-NV in accordance with the laws of
the State of Nevada and the U.S. Virgin Islands and the terms of this Agreement
(the "Merger"), whereupon the separate corporate existence of the Company shall
cease, and ITEC-NV shall be the surviving corporation of the Merger (ITEC- NV,
as the surviving corporation after the Merger is sometimes referred to herein as
the "Surviving Corporation").
1.2. Closing. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") shall take place (a) at the offices of
the Company, 0000 Xxxxxxxx xx xxx Xxxxx Xxxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000 as
soon as administratively feasible after all the conditions set forth in Article
VI of this Agreement (other than those that are waived by the party or parties
for whose benefit such conditions exist) are satisfied; or (b) at such other
place, time, and/or date as the parties hereto may otherwise agree. The date
upon which the Closing shall occur is referred to herein as the "Closing Date."
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1.3. Effective Time. If all the conditions to the Merger set forth in
Article VI of this Agreement have been fulfilled or waived and this Agreement
shall not have been terminated as provided in Article VII hereof, the parties
hereto shall cause (i) articles of merger (the "Articles of Merger") to be
properly executed and filed in accordance with the laws of the State of Nevada
and the terms of this Agreement on or before the Closing Date and (ii) a
certified and acknowledged copy of this Agreement and Plan of Merger to be
properly filed in accordance with the laws of the U.S. Virgin Islands on or
before the Closing Date. The parties hereto shall also take such further actions
as may be required under the laws of the State of Nevada and the U.S. Virgin
Islands in connection with the consummation of the Merger. The Merger shall
become effective at such time as the Articles of Merger are duly filed with the
Secretary of State of Nevada or at such later time as is specified in the
Articles of Merger (the "Effective Time"). From and after the Effective Time,
the Surviving Corporation shall possess all the rights, privileges, powers and
franchises and be subject to all of the restrictions, disabilities and duties of
the Company, all as provided under applicable law.
1.4. Conversion of Shares. (a) At the Effective Time each share of
Common Stock, par value $0.001 per share, of the Company outstanding at the
Effective Time, by virtue of the Merger and without any action on the part of
the holders thereof, shall be converted into the right to receive one share of
ITEC-NV Common Stock (the "Exchange Ratio").
(b) As a result of the Merger and without any action on the part of the
holder thereof, at the Effective Time, all shares of Company Common Stock shall
cease to be outstanding and shall be canceled and retired and shall cease to
exist, and each holder of shares of Company Common Stock shall thereafter cease
to have any rights with respect to such shares of Company Common Stock, except
for the right to receive, without interest, the consideration set forth in this
Section 1.4 upon the surrender of a certificate (each, a "Certificate")
representing such shares of Company Common Stock in accordance with the
provisions of this Article I.
1.5. Stock Options. All options and warrants to acquire Company Common
Stock (individually, a "Company Option" and collectively, the "Company Options")
outstanding at the Effective Time shall remain outstanding following the
Effective Time. At the Effective Time, such Company Options, by virtue of the
Merger and without any further action on the part of the Company or the holder
of such Company Options, shall be assumed by ITEC-NV and shall be exercisable
upon the same terms and conditions as with respect to the Company. ITEC-NV shall
take all corporate actions necessary to reserve for issuance such number of
shares of ITEC-NV Common Stock as will be necessary to satisfy exercises in full
of all Company Options after the Effective Time.
1.6. Exchange of Certificates Representing Company Common Stock. (a)
Interwest Transfer Company, Inc. shall act as exchange agent (the "Exchange
Agent") in the Merger.
(b) At or promptly after the Effective Time, ITEC-NV shall cause the
Exchange Agent to mail to each holder of record of shares of Company Common
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Stock (i) a letter of transmittal which shall specify that delivery shall be
effected, and risk of loss and title to such shares of Company Common Stock
shall pass, only upon delivery of the Certificates representing such shares to
ITEC-NV; and (ii) instructions for use in effecting the surrender of such
Certificates in exchange for the consideration to be received by such holder
pursuant to Sections 1.4 and 1.6 hereof. Upon surrender of a Certificate
representing shares of Company Common Stock for cancellation to ITEC-NV,
together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, the holder of the shares represented
by such Certificate shall be entitled to receive in exchange therefor, a
certificate representing that number of whole shares of ITEC-NV Common Stock,
and unpaid dividends and distributions, if any, which such holder has the right
to receive in respect of the Certificate surrendered pursuant to the provisions
of this Section 1.6, after giving effect to any required withholding tax, and
the shares represented by the Certificate so surrendered shall forthwith be
canceled. In the event of a transfer of ownership of Company Common Stock which
is not registered in the transfer records of the Company, the consideration to
be paid to such holder of Company Common Stock pursuant to Sections 1.4 and 1.6
hereof may be issued to such a transferee if the Certificate representing such
Company Common Stock is presented to ITEC-NV, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid or, alternatively, payments of
such transfer tax to the Exchange Agent.
(d) At or after the Effective Time, there shall be no transfers on the
stock transfer books of the Company of the shares of Company Common Stock which
were outstanding at the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged for the consideration set forth in this Article I deliverable in
respect thereof pursuant to this Agreement in accordance with the procedures set
forth in this Section 1.6.
(e) All former stockholders of the Company (each, a "Stockholder" and
collectively the "Stockholders") shall look only to ITEC-NV for payment of
shares of ITEC-NV Common Stock deliverable in respect of each share of Company
Common Stock such Stockholder holds as determined pursuant to this Agreement,
without any interest thereon.
(f) None of ITEC-NV, the Company, the Surviving Corporation or any
other person shall be liable to any former holder of shares of Company Common
Stock for any amount properly delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
(g) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such Person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, ITEC-NV will issue
in exchange for such lost, stolen or destroyed Certificate, the consideration to
be received by the holder of such Certificate pursuant to Sections 1.4 and 1.6
hereof.
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1.7. Tax Consequences and Accounting Treatment. It is intended by the
parties hereto that the Merger shall constitute a reorganization within the
meaning of Section 368 of the Code and that the transaction be accounted for as
a pooling of interests.
1.8. Taking of Necessary Action; Further Action. If, at any time after
the Effective Time, any further action is necessary or desirable to carry out
the purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of the Company, the officers and directors of the Company are
fully authorized in the name of their respective corporations or otherwise to
take, and will take, all such lawful and necessary action, so long as such
action is consistent with this Agreement.
ARTICLE II - CERTAIN MATTERS RELATING TO THE SURVIVING CORPORATION
2.1. Certificate of Incorporation of the Surviving Corporation. The
certificate of incorporation of ITEC-NV in effect at the Effective Time shall be
the certificate of incorporation of the Surviving Corporation until amended in
accordance with its terms and pursuant to applicable law.
2.2. By-Laws of the Surviving Corporation. The By-Laws of the Company
in effect at the Effective Time shall be the By-Laws of the Surviving
Corporation until amended in accordance with the terms of such By-Laws and
pursuant to applicable law and the Certificate of Incorporation of the Surviving
Corporation.
2.3. Directors of the Surviving Corporation. The directors of the
Company prior to the Effective Time shall be the directors of the Surviving
Corporation, to hold office until their successors are duly appointed or elected
in accordance with applicable law.
2.4. Officers of the Surviving Corporation. The officers of the Company
prior to the Effective Time shall be the officers of the Surviving Corporation,
who shall hold their offices until their successors are duly appointed or
elected in accordance with applicable law.
2.5.Agent for Service of Process in the U.S. Virgin Islands. ITEC
Attractions, Inc., the Surviving Corporation hereby irrevocably appoints the
Lieutenant Governor of the U.S. Virgin Islands as its agent to accept service of
process in the U.S. Virgin Islands in any action or proceeding for enforcement
of any obligation of International Tourist Entertainment Corporation as well as
for enforcement of any obligation of the Surviving Corporation arising from the
merger described in this Agreement, including any action or other proceeding to
enforce the right of any stockholder as determined in appraisal proceedings
pursuant to the provisions of Section 256 of the General Corporation Law of the
U.S. Virgin Islands.
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ARTICLE III - REPRESENTATIONS AND WARRANTIES OF ITEC-NV
ITEC-NV represents and warrants to the Company that the statements
contained in this Article III are true and correct.
3.1. Existence, Good Standing, Corporate Authority. ITEC-NV, (i) is a
corporation duly incorporated, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation; and (ii) has all requisite
power and authority to (A) carry on its business as currently proposed to be
conducted, and (B) consummate the transactions contemplated hereby.
3.2. Authorization of Agreement and Other Documents. The execution and
delivery of this Agreement and the other documents executed or to be executed in
connection herewith to which ITEC-NV is a party (collectively, the "ITEC-NV
Ancillary Documents"), have been duly authorized by the Board of Directors of
ITEC-NV and no other proceedings on the part of ITEC- V or its stockholders are
necessary to authorize the execution, delivery or performance of this Agreement
or any ITEC-NV Ancillary Document. This Agreement is, and, as of the Closing
Date, each of the ITEC-NV Ancillary Documents will be, a valid and binding
obligation of ITEC-NV, as the case may be, enforceable against ITEC-NV, as the
case may be, in accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws affecting enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity).
3.3. Capitalization. (a) The total authorized capital stock of ITEC-NV
consists of (i) 40,000,000 shares of ITEC-NV Common Stock, none of which are
issued and outstanding as of the date of this Agreement and 7,937,638 shares of
which have been reserved for issuance pursuant to the Merger and (ii) 10,000,000
shares of preferred stock, none of which are issued and outstanding as of the
date of this Agreement. There are no shares of capital stock of ITEC- NV of any
other class authorized, issued or outstanding. The issuance of ITEC-NV Common
Stock pursuant to the Merger is not subject to any pre-emptive or other similar
rights to acquire ITEC-NV Common Stock.
(b) there are no outstanding (i) securities convertible into or
exchangeable for any capital stock of ITEC-NV, (ii) options, warrants or other
rights to purchase or subscribe to capital stock of ITEC-NV or securities
convertible into or exchangeable for capital stock of ITEC-NV, or (iii)
contracts, commitments, agreements, understandings, arrangements, calls or
claims of any kind relating to the issuance of any capital stock of ITEC-NV.
3.4. ITEC-NV Common Stock. The issuance and delivery by ITEC-NV of
shares of its Common Stock in connection with the Merger and this Agreement have
been duly and validly authorized by all necessary corporate action on the part
of ITEC-NV. The shares of ITEC-NV Common Stock to be issued in connection with
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the Merger and this Agreement, when issued in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable and free of
preemptive rights.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to ITEC-NV that the statements
contained in this Article IV are true and correct.
4.1. Organization, Standing and Qualification. The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) has all requisite power and authority
to (A) own or lease and operate its properties and assets and to carry on its
business as now conducted and as currently proposed to be conducted, and (B)
consummate the transactions contemplated hereby; (iii) is duly qualified or
licensed to do business and is in good standing in all jurisdictions in which it
owns or leases property or in which the conduct of its business requires it to
so qualify or be licensed; and (iv) has obtained all licenses, permits,
franchises and other governmental authorizations necessary to the ownership or
operation of its properties or the conduct of its business.
4.2. Authorization of Agreement and Other Documents. The execution and
delivery of this Agreement and the other documents executed or to be executed in
connection herewith to which the Company is a party (collectively, the "Company
Ancillary Documents"), have been duly authorized by the Board of Directors of
the Company and no other corporate or stockholder approvals are necessary to
authorize the execution, delivery or performance of this Agreement or any
Company Ancillary Document, except the approval of the Merger by the
Stockholders. This Agreement is, and, as of the Closing Date, each of the
Company Ancillary Documents will be, a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting enforcement of creditors' rights generally, and by general principles
of equity (regardless of whether enforcement is considered in a proceeding at
law or in equity) and subject to the receipt of Stockholder approval of the
Merger.
4.3. Capitalization. (a) Except for shares of Company Common Stock
issued upon the exercise of outstanding options and warrants to purchase Company
Common Stock listed in the Disclosure Statement, the total authorized capital
stock of the Company consists of (i) 40,000,000 shares of common stock, par
value $0.001 per share, 7,937,638 shares of which are issued and outstanding;
and (ii) 10,000,000 shares of preferred stock, none of which are issued and
outstanding. There are no shares of capital stock of the Company of any other
class authorized, issued or outstanding. The Company has outstanding warrants to
purchase 2,000,000 shares of its Common Stock at a price of $1.00 per share.
(b) Each share of the outstanding Company Common Stock is (i) duly
authorized and validly issued; (ii) fully paid and nonassessable and free of
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preemptive and similar rights; and (iii) to the knowledge of the Company, free
and clear of all liens, pledges, security interests, claims or other
encumbrances and restrictions on voting and transfer other than restrictions on
transfer imposed by Federal and state securities laws.
ARTICLE V - COVENANTS
5.1. Expenses. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the Company.
ARTICLE VI - CONDITIONS
6.1. Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Closing Date of each of the following
conditions (unless waived by each of the parties hereto in accordance with the
provisions of Section 7.3 hereof):
(a) This Agreement and the Merger and other transactions contemplated
hereby shall have been approved and adopted by the requisite vote of the
Stockholders.
(c) No preliminary or permanent injunction or other order or decree by
any federal or state court which prevents the consummation of the Merger or
materially changes the terms or conditions of this Agreement shall have been
issued and remain in effect. In the event any such order or injunction shall
have been issued, each party agrees to use its reasonable efforts to have any
such injunction lifted.
(d) The Form S-4 shall have been declared effective by the SEC and
shall be effective at the Effective Time, and no stop order suspending the
effectiveness of the Form S-4 shall have been issued, no action, suit,
proceeding or investigation by the SEC to suspend the effectiveness thereof
shall have been initiated and be continuing, and all necessary approvals under
state securities laws relating to the issuance or trading of the ITEC-NV Common
Stock to be issued to the Stockholders in connection with the Merger shall have
been received.
(e) All material consents, authorizations, orders and approvals of (or
filings or registrations with) any governmental commission, board or other
regulatory body required in connection with the execution, delivery and
performance of this Agreement shall have been obtained or made, except for
filings in connection with the Merger and any other documents required to be
filed after the Effective Time.
(f) The ITEC-NV Common Stock to be issued to the Stockholders in
connection with the Merger shall have been authorized for reporting on the
NASD's OTC Bulletin Board subject only to official notice of issuance.
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ARTICLE VII - TERMINATION
7.1. Termination. This Agreement may be terminated and the Merger may
be abandoned at any time before the Closing Date notwithstanding the approval or
adoption of this Agreement by the Stockholders by the mutual written consent of
ITEC-NV and the Company.
ARTICLE VIII - GENERAL PROVISIONS
8.1. Assignment, Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties.
8.2. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada without regard to its rules
of conflict of laws.
8.3. Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only and shall be given no substantive or
interpretive effect whatsoever.
8.4. Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
8.5. Severability. Any term or provision of this Agreement which is
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf as of the day and year first
written above.
ITEC-NV ITEC ATTRACTIONS, INC.
By: ________________________________
Xxxx X. Xxxxx, Chairman
THE COMPANY: INTERNATIONAL TOURIST
ENTERTAINMENT CORPORATION
By its Board of Directors:
BOARD OF DIRECTORS:
------------------------------------ ------------------------------------
Xxxx X. Xxxxx Lourette Xxx Xxxxx
Dated:___________________ Dated:___________________
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------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxxx
Dated:___________________ Dated:___________________
------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx. Xxxxxxx X. XxXxxxxxxx
Dated:___________________ Dated:___________________
------------------------------------
Kumar X. Xxxxx
Dated:___________________
The undersigned Secretary of International Tourist Entertainment
Corporation hereby certifies that this Agreement and Plan of Reorganization has
been duly adopted by the shareholders of the Corporation representing two-thirds
of the total number of shares of the issued and outstanding capital stock of the
Corporation.
Dated: __________________ ____________________________________
Xxx Xxxxxx, Secretary
This Agreement and Plan of Reorganization, having been duly adopted and
certified, is hereby signed on behalf of International Tourist Entertainment
Corporation by its President and Secretary.
------------------------------------ ------------------------------------
Xxx Xxxxxx, Secretary Xxxx Xxxxxxxxx, President
Dated: __________________ Dated: _____________________
STATE OF MISSOURI )
: ss.
COUNTY OF TANEY )
On the ___ day of October, 1999, personally appeared before me Xxxx
Xxxxxxxxx, who, being by me duly sworn, did say that he is the President of
International Tourist Entertainment Corporation and that the within and
foregoing instrument was signed in behalf of said corporation, and he duly
acknowledged to me that said corporation executed the same.
------------------------------------
My Commission expires: NOTARY PUBLIC
_____________________ Residing in:__________________________
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