Exhibit 10(b)
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ARTICLES AND PLAN OF MERGER
OF
SBS ACQUISITIONS, INC.
WITH AND INTO
SBS INTERACTIVE, INC.
(The Surviving Corporation)
Pursuant to the provisions of the Nevada Private Corporation Act, SBS
Interactive, Inc., a Nevada corporation ("SBS"), and SBS Acquisitions, Inc., a
Nevada corporation ("Acquisition"), such corporations sometimes called the
"Constituent Corporations," and joined in by SBS Interactive, Co., formerly
known as Inet Commerce Conduit Corp., a Florida corporation ("Interactive"), for
certain purposes, but not as a Constituent Corporation, set forth the following
information and execute and enter into this Articles and Plan of Merger ("Merger
Plan") On October 24, 2002.
W I T N E S S E T H:
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SBS has authorized capital stock consisting of 50,000,000 shares of Common
Stock, $.001 par value per share ("SBS Common Stock"), of which, as of the date
first above written, 20,676,000 shares are issued and outstanding.
As of the date first above written, Acquisition has authorized capital
stock of 50,000 shares of Common Stock, $.01 par value per share, ("Acquisition
Stock") of which 5,000 shares are issued and outstanding, all of which are owned
by Interactive.
SBS and Interactive have entered into a Merger Agreement, dated July 22,
2002 ("Merger Agreement"), setting forth certain representations, warranties,
conditions, and agreements relating to the transactions provided for herein;
The Boards of Directors of the Constituent Corporations deem it fair and
equitable to, and in the best interests of, their respective shareholders, that
Acquisition be merged into SBS, with SBS ("Merger") being the Surviving
Corporation (as hereinafter defined), on terms and conditions set forth under
and pursuant to the applicable statutes of the State of Nevada; and they have
approved this Merger Plan and the Merger Agreement, have authorized their
execution and delivery, and have directed their submission to their respective
shareholders for approval.
The Merger Plan was submitted to the owners (shareholders) of SBS for their
action and on July 25,2002 the owners of l0,674,9l7 outstanding shares,
constituting 5l.6% of the outstanding shares, voted to approve the Merger Plan
which is a legally sufficient vote for that approval by the owners of SBS. The
sole shareholder or owner of Acquisition voted l00% of all shares of Acquisition
in favor of the Merger Plan on October 23, 2002, which is a legally sufficient
vote for that approval by the owner of Acquisition.
In consideration of the premises and the mutual agreements, provisions, and
covenants herein contained, and as further provided in the Merger Agreement, and
for the purposes of prescribing the terms and conditions of the Merger, the mode
of carrying the same into effect, the manner and basis of converting the shares
of SBS Common Stock into the Common Stock, par value $.001 per share, of
Interactive ("Interactive Common Stock"), and such other details and provisions
that are deemed necessary or desirable, the parties hereto hereby agree in
accordance with the applicable statutes of the State of Nevada that SBS and
Acquisition shall be, and they hereby are, at the Effective Time (as defined in
Section 4.1 of this Merger Plan and Section 1.3 of the Merger Agreement), merged
into a single corporation existing under the laws of the State of Nevada, to
wit: SBS, which shall be the Surviving Corporation, (such corporation in its
capacity as such Surviving Corporation being heretofore and hereafter sometimes
called the "Surviving Corporation"); and all of the parties signatory hereto
adopt and agree to the following agreements, terms and conditions relating to
the Merger and the mode of carrying the same into effect.
ARTICLE I
1.1 SURVIVING CORPORATION. In accordance with the provisions of the
applicable statutes of the State of Nevada, Acquisition shall be, at the
Effective Time, merged into SBS, which shall be the Surviving Corporation, and
SBS shall continue to exist as a Nevada corporation in accordance with the laws
of the State of Nevada. The corporate existence and rights of Acquisition shall
be merged into SBS, and SBS, as the Surviving Corporation, shall be fully vested
therewith. The separate existence and corporate organization of Acquisition,
except insofar as they may be continued by statute, shall cease when the Merger
shall become effective. Except as herein specifically set forth, the Surviving
Corporation shall possess the rights, privileges, immunities, and franchises,
public and private, of the Constituent Corporations. All real, personal, and
mixed property, and all debts due, and other chooses in action, and every other
interest of or belonging to or due to each of the Constituent Corporations are
transferred to and vested in the Surviving Corporation. The title to real
estate, or interest in real estate, vested in the Constituent Corporations does
not revert nor is it in any way impaired because of the Merger. The Surviving
Corporation shall be liable for the liabilities and obligations of each of the
Constituent Corporations. A claim existing or action or proceeding pending by or
against the Constituent Corporations may be prosecuted as if the Merger had not
taken place, or the Surviving Corporation may be substituted in a Constituent
Corporation's place. Neither the rights of creditors nor liens upon the property
of the Constituent Corporations shall be impaired by the Merger.
ARTICLE II
2.1 NAME. The name of the corporation that survives the Merger shall be and
continue to be, on and after the Effective Time, "SBS Interactive, Inc." until
amended as provided by law.
2.2 ARTICLES OF INCORPORATION. The Articles of Incorporation of SBS, as in
effect immediately prior to the Effective Time, shall, from and after the
Effective Time, be and shall continue to be the Articles of Incorporation of the
Surviving Corporation until amended as provided by law.
2.3 BY-LAWS. The By-Laws of SBS, as in effect immediately prior to the
Effective Time, shall, from and after the Effective Time, be and shall continue
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to be the By-Laws of the Surviving Corporation until the same shall be altered,
amended, or rescinded as therein provided or as provided in the Articles of
Incorporation of the Surviving Corporation.
2.4 DIRECTORS. The directors of SBS in office immediately prior to the
Effective Time shall be the directors of the Surviving Corporation and shall
hold office from the Effective Time until their respective successors are
elected and qualified in accordance with the law and the By-Laws of the
Surviving Corporation.
2.5 OFFICERS. The officers of SBS in office immediately prior to the
Effective Time shall be the officers of the Surviving Corporation and shall hold
their respective offices from the Effective Time until their respective
successors are elected and qualified in accordance with the law and the By-Laws
of the Surviving Corporation.
ARTICLE III
3.1 MANNER AND BASIS OF CONVERTING SHARES. At the Effective Time:
(a) Each share of Acquisition Stock which is issued and outstanding
immediately prior to the Effective Time shall be canceled.
(b) The 20,676,000 shares of SBS Common Stock which are issued and
outstanding immediately prior to the Effective Time shall be converted into
approximately 3,180,923 shares of Interactive's Common Stock at the ratio of 6.5
shares of SBS Common Stock for each share of Interactive ("Conversion Price").
(c) SBS shall issue and deliver to Interactive 1,000 shares of SBS
Common Stock which shall become the only remaining issued and outstanding shares
of Capital Stock of SBS as of the Effective Time.
3.2 CESSATION OF SHAREHOLDERS STATUS OF PRIOR SHAREHOLDERS. Holders of
certificates which represent shares of SBS Common Stock outstanding immediately
prior to the Effective Time (hereinafter called the "Old Certificates" when
referring to SBS) shall cease to be, and shall have no rights as, shareholders
of SBS as of the Effective Time
3.3 EXCHANGE AGENT. SBS shall act as it's own Agent ("Exchange Agent") to
accept surrender of the Old Certificates representing shares of SBS Common Stock
and to deliver, in exchange for such surrendered certificates, Interactive
Common Stock at the Conversion Price for the shares of SBS Common Stock
represented by such certificates.
3.4 FRACTIONAL SHARES. Each holder of Old Certificates who would otherwise
have been entitled to receive a fraction of a share of Interactive's Common
Stock (after taking into account all of the shares of the capital stock of SBS
represented by the Old Certificates then delivered by such holder) share of
Interactive Common Stock shall receive, in lieu thereof, one additional share of
Interactive Common Stock.
3.5 ANTI-DILUTION ADJUSTMENT. If between the date of this Merger Plan and
the Effective Time the outstanding shares of Interactive Common Stock shall have
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been changed, without receipt by Interactive of consideration for such change,
into a different number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of shares,
or readjustment, or a stock dividend thereon shall be declared with a record
date within said period, adjustments will be made to the Conversion Price as
appropriate.
ARTICLE IV
4.1 FILING OF MERGER ARTICLES. On the Closing Date (as set forth in the
Merger Agreement), or as soon thereafter as practicable, this Merger Plan, and
any other certificates, articles, or required documents, executed and verified
in accordance with law, shall be delivered for filing to the Secretary of State
of the State of Nevada. The Merger shall become effective in accordance with the
laws of the State of Nevada upon the filing of the Articles of Merger pursuant
to the provisions of the Nevada Corporation Laws. The time when the Merger shall
become effective is herein called the "Effective Time."
4.2 FURTHER ASSURANCES. Each party to this Merger Plan shall take all such
action as may be reasonably necessary and appropriate in order to consummate the
Merger as promptly as practicable. If at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Merger Plan and to vest unto SBS the full right, title, and possession of all of
the rights, privileges, immunities and franchises of either SBS or Acquisition,
the officers and directors of such corporations are fully authorized, in the
names of their respective corporations or otherwise, to take, and shall take,
all such action and, in doing so, shall be indemnified by SBS to the same extent
as they would have been indemnified had such action been taken prior to the
Effective Time.
4.3 COUNTERPARTS. This Merger Plan may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one agreement.
4.4 GOVERNING LAW. This Merger Plan shall be governed in all respects,
including, but not limited to, validity, interpretation, effect, and
performance, by the laws of the State of Nevada.
4.5 AMENDMENT. Subject to applicable law, this Merger Plan may be amended,
modified, or supplemented only by written agreement to Interactive, Acquisition,
and SBS, or by the respective officers there unto duly authorized, at any time
prior to the Effective Time; provided, however, that after the adoption of the
Merger Agreement by the shareholders of SBS, no such amendment, modification, or
supplement shall alter or change the amount of INTERACTIVE Common Stock to be
received on conversion of SBS Common Stock, as provided in this Merger Plan and
the Merger Agreement, or alter or change any of the terms and conditions of this
Merger Plan or the Merger Agreement if such alteration or change would adversely
affect the holders of any class or series of stock of the Constituent
Corporations.
4.6 WAIVER. Any of the terms or conditions of this Merger Plan may be
waived at any time by whichever of the Constituent Corporations is, or the
shareholders of which are, entitled to the benefit thereof by action taken by
the Boards of Directors of such Constituent Corporation.
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4.7 TERMINATION. This Merger Plan shall terminate upon the termination of
the Merger Agreement, and there shall be no liability on the part of any of the
parties hereto (or any of their respective directors or officers).
IN WITNESS WHEREOF, each of the Constituent Corporations and Interactive
have caused this Merger Plan to be executed on their-behalf by their officers
hereunto duly authorized and their respective corporate seals to be affixed
hereto, all as of the date first above written.
SBS INTERACTIVE, INC.
By: /s/ Barry D. Alter
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Barry D. Alter, Vice-President
SBS ACQUISITIONS, INC.
By: /s/ Patti Cooke
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Patti Cooke, President
SBS INTERACTIVE, CO.
By: /s/ Patti Cooke
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Patti Cooke, Vice President
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PROVINCE OF ONTARIO )
) ss.
CANADA )
On this 24th day of October, 2002, before me personally came Barry D.
Alter, who, being by me duly sworn, did depose and say that he is the
Vice-President of SBS Interactive, Inc.; that he signed the foregoing Articles
and Plan of Merger as Vice-President of said corporation in accordance with a
resolution of the Board of Directors of said Corporation; that the statements
contained therein are true; and that said Corporation executed the same.
My commission expires:
No Expiration
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/s/ Michael Eustace
--------------------------
Notary Public
PROVINCE OF ONTARIO )
) ss.
CANADA )
On this 24th day of October, 2002, before me personally came Patti Cooke,
who, being by me duly sworn, did depose and say that she is the President of SBS
Acquisitions, Inc.; that she signed the foregoing Articles and Plan of Merger as
President of said corporation in accordance with a resolution of the Board of
Directors of said Corporation; that the statements contained therein are true;
and that said Corporation executed the same.
My commission expires:
No Expiration
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/s/ Michael Eustace
--------------------------
Notary Public
6
PROVINCE OF ONTARIO )
) ss.
CANADA )
On this 24th day of October, 2002, before me personally came Patti Cooke,
who, being by me duly sworn, did depose and say that she is the Vice President
of SBS Interactive, Co.; that she signed the foregoing Articles and Plan of
Merger as Vice President of said corporation in accordance with a resolution of
the Board of Directors of said Corporation; that the statements contained
therein are true; and that said Corporation executed the same.
My commission expires:
No Expiration
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/s/ Michael Eustace
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Notary Public
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