AGREEMENT AND PLAN OF MERGER between TORBAY ACQUISITION
CORPORATION, a Delaware corporation ("TAC"), and TORBAY HOLDINGS,
INC., a Delaware corporation ("THC"), TAC and THC being sometimes
referred to herein as the "Constituent Corporations," and each one a
"Constituent Corporation."
WHEREAS, the board of directors of each Constituent
Corporation deems it advisable that the Constituent Corporations
merge into a single corporation in a transaction intended to qualify
as a reorganization within the meaning of Section368(a)(1)(A) of the
Internal Revenue Code of 1986, as amended (the "Merger");
NOW, THEREFORE, in consideration of the premises and the
respective mutual covenants, representations and warranties herein
contained, the parties agree as follows:
1. SURVIVING CORPORATION. TAC shall be merged with and
into THC which shall be the surviving reporting corporation
(hereinafter the "Surviving Corporation") in accordance with the
applicable laws of the State of Delaware.
2. MERGER DATE. The Merger shall become effective (the
"Merger Date") upon the completion of:
2.1. Adoption of this Agreement by the board of directors
and the shareholders of TAC and by the board of directors of THC,
pursuant to the General Corporation Law of Delaware.
2.2. Execution and filing of the Certificate of Merger
with the Secretary of State of the State of Delaware in accordance
with the General Corporation Law of Delaware.
3. TIME OF FILINGS. The Certificate of Merger shall be
filed with the Secretary of State of Delaware upon the approval of
this Agreement by the shareholders of TAC and the fulfillment or
waiver of the terms and conditions herein.
4. GOVERNING LAW. The Surviving Corporation shall be
governed by the laws of the State of Delaware.
5. CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of THC shall be the Certificate of Incorporation of
the Surviving Corporation from and after the Merger Date.
6. BYLAWS. The Bylaws of the Surviving Corporation
shall be the Bylaws of THC as in effect on the date of this Agreement.
7. NAME OF SURVIVING CORPORATION. The Surviving
Corporation will continue to use its name "Torbay Holdings, Inc." or
such name as it may choose and shall be available.
8. CONVERSION. The mode of carrying the merger into
effect and the manner and basis of converting the shares of TAC into
shares of the Surviving Corporation are as follows:
8.1. The aggregate number of shares of TAC Common Stock
issued and outstanding on the Merger Date shall, by virtue of the
merger and without any action on the part of the holders thereof, be
converted into an aggregate of 250,000 shares of THC Common Stock
(which obligation has been satisfied by the prior issuance of
250,000 common shares of THC the holders of TAC Common Stock).
8.2. At September 24, 1999, there were issued and
outstanding 5,100,000 shares of Common Stock of THC and 700,000
shares of Series 1 Convertible Preferred Stock of THC.
8.3. Each share of TAC Common Stock that is issued and
outstanding and owned by TAC on the Merger Date shall, by virtue of
the merger and without any action on the part of TAC, be retired and
canceled.
8.4. Each certificate evidencing ownership of shares of
THC Common Stock issued and outstanding on the Merger Date or held
by THC in its treasury shall continue to evidence ownership of the
same number of shares of THC Common Stock.
9. UNEXCHANGED CERTIFICATES. Until surrendered, each
outstanding certificate that prior to the Merger Date represented
TAC Common Stock (other than certificates representing Dissenting
Shares) shall be deemed for all purposes, other than the payment of
dividends or other distributions, to evidence ownership of the
number of shares of THC Common Stock into which it was converted.
No dividend or other distribution payable to holders of THC Common
Stock as of any date subsequent to the Merger Date shall be paid to
the holders of outstanding certificates of TAC Common Stock;
provided, however, that upon surrender and exchange of such
outstanding certificates (other than certificates representing
Dissenting Shares), there shall be paid to the record holders of the
certificates issued in exchange therefor the amount, without
interest thereon, of dividends and other distributions that would
have been payable subsequent to the Merger Date with respect to the
shares of THC Common Stock represented thereby.
10. BOARD OF DIRECTORS AND OFFICERS. The members of the
board of directors of the Surviving Corporation shall be the members
of the board of directors of THC on the Merger Date or such others
as THC may designate. The officers of the Surviving Corporation
shall be the officers of THC on the Merger Date or such others as
THC may designate.
11. EFFECT OF THE MERGER. On the Merger Date, the
separate existence of TAC shall cease (except insofar as continued
by statute), and it shall be merged with and into the Surviving
Corporation. All the property, real, personal, and mixed, of each
of the Constituent Corporations, and all debts due to either of
them, shall be transferred to and vested in the Surviving
Corporation, without further act or deed. The Surviving Corporation
shall thenceforth be responsible and liable for all the liabilities
and obligations, including liabilities to holders of Dissenting
Shares, of each of the Constituent Corporations, and any claim or
judgment against either of the Constituent Corporations may be
enforced against the Surviving Corporation.
12. APPROVAL OF SHAREHOLDERS. This Agreement shall be
adopted by the shareholders of TAC at a meeting of such shareholders
called for that purpose or by written consent pursuant to the laws
applicable thereto. There shall be required for the adoption of
this Agreement the affirmative vote of the holders of at least a
majority of the holders of all the shares of the Common Stock issued
and outstanding and entitled to vote for TAC. Approval by the
shareholders of THC is not required by applicable law.
13. REPRESENTATIONS AND WARRANTIES OF TAC. TAC
represents and warrants that:
13.1. CORPORATE ORGANIZATION AND GOOD STANDING. TAC is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification.
13.2. REPORTING COMPANY. TAC has filed with the Securities
and Exchange Commission a registration statement on Form F-10 which
became effective pursuant to the Securities Exchange Act of 1934 and
is a reporting company pursuant to Section12 thereunder.
13.3. REPORTING COMPANY STATUS. TAC has timely filed and
is current on all reports required to be filed by it pursuant to
Section12(g) of the Securities Exchange Act of 1934.
13.4. CAPITALIZATION. TAC's authorized capital stock
consists of 120,000,000 shares of Common Stock, $.0001 par value, of
which 5,000,000 shares are issued and outstanding, and 20,000,000
shares of non-designated preferred stock of which no shares are
designated or issued.
13.5. ISSUANCE OF STOCK. All the outstanding shares of its
Common Stock are duly authorized and validly issued, fully paid and
non-assessable.
13.6. STOCK RIGHTS. There are no stock grants, options,
rights, warrants or other rights to purchase or obtain the TAC
Common or Preferred Stock issued or committed to be issued.
13.7. CORPORATE AUTHORITY. TAC has all requisite corporate
power and authority to own, operate and lease its properties, to
carry on its business as it is now being conducted and to execute,
deliver, perform and conclude the transactions contemplated by this
Agreement and all other agreements and instruments related to this
Agreement.
13.8. AUTHORIZATION. Execution of this Agreement has been
duly authorized and approved by TAC's board of directors.
13.9. SUBSIDIARIES. TAC has no subsidiaries.
13.10. FINANCIAL STATEMENTS. TAC's audited financial
statements dated December 31, 1998, copies of which will have been
delivered by TAC to THC prior to the Merger Date (the "TAC Financial
Statements"), fairly present the financial condition of TAC as of
the date therein and the results of its operations for the periods
then ended in conformity with generally accepted accounting
principles consistently applied.
13.11. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the TAC Financial
Statements, TAC did not have at that date any liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a
nature customarily reflected in a corporate balance sheet prepared
in accordance with generally accepted accounting principles.
13.12. NO MATERIAL CHANGES. There has been no material
adverse change in the business, properties, or financial condition
of TAC since the date of the TAC Financial Statements.
13.13. LITIGATION. There is not, to the knowledge of TAC,
any pending, threatened, or existing litigation, bankruptcy,
criminal, civil, or regulatory proceeding or investigation,
threatened or contemplated against TAC or against any of its
officers.
13.14. CONTRACTS. TAC is not a party to any material
contract not in the ordinary course of business that is to be
performed in whole or in part at or after the date of this Agreement.
13.15. TITLE. TAC has good and marketable title to all the
real property and good and valid title to all other property
included in the TAC Financial Statements. Except as set out in the
balance sheet thereof, the properties of TAC are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances
that do not materially interfere with the use of the property in the
conduct of the business of TAC.
13.16. TAX RETURNS. All federal, state, county, municipal,
local, foreign and other taxes and assessments, including any and
all interest, penalties and additions imposed with respect to such
amounts, have been properly prepared and filed by TAC for all years
to and including the taxable year ending December 31, 1998. Any and
all federal, state, county, municipal, local, foreign and other
taxes and assessments, including any and all interest, penalties and
additions imposed with respect to such amounts for the year ending
December 31, 1998, have been paid or if any is outstanding as at the
date hereof provision has been made prorated to the date hereof to
be an adjustment to the credit of THC payable to THC on the merger
hereof. The provisions for federal and state taxes reflected in the
TAC Financial Statements are adequate to cover any such taxes that
may be assessed against TAC in respect of its business and its
operations during the periods covered by the TAC Financial
Statements and all prior periods.
13.17. NO VIOLATION. Consummation of the merger will not
constitute or result in a breach or default under any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any property of
TAC is subject or by which TAC is bound.
14. REPRESENTATIONS AND WARRANTIES OF THC. THC
represents and warrants that:
14.1. CORPORATE ORGANIZATION AND GOOD STANDING. THC is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification.
14.2. CAPITALIZATION. THC's authorized capital stock
consists of 100,000,000 shares of Common Stock, $.0001 par value, of
which 5,100,000 shares are issued and outstanding, and 20,000,000
shares of Preferred Stock, $.0001 par value, of which 700,000 shares
have been designated as Series 1 Convertible Preferred Stock, and
700,000 shares thereof have been issued. Each share of Series 1
Convertible Preferred Stock is convertible into ten shares of common
stock of THC at such time or times, if any, that the subsidiary of
THC, whose common shares were acquired in exchange for the Series 1
Convertible Preferred Stock, has returned a net profit to THC of
$1,000,000 in any one year within five years of issuance of such
Series 1 Convertible Preferred Shares. In the event that after such
five year term the Series 1 Convertible Preferred Shares have not
been so converted, each share not then converted shall be
automatically converted into one share of common stock of THC. Each
share of Series 1 Convertible Preferred Stock shall be entitled to
one vote on all matters on which such shareholders are lawfully
entitled to vote and shall be entitled to receive notice of or
attend any annual or extraordinary meeting of shareholders of THC.
14.3. ISSUED STOCK. All the outstanding shares of its
Common Stock and Series 1 Convertible Preferred Stock are duly
authorized and validly issued, fully paid and non-assessable.
14.4. CORPORATE AUTHORITY. THC has all requisite corporate
power and authority to own, operate and lease its properties, to
carry on its business as it is now being conducted and to execute,
deliver, perform and conclude the transactions contemplated by this
Agreement and all other agreements and instruments related to this
Agreement.
14.5. AUTHORIZATION. Execution of this Agreement has been
duly authorized and approved by THC's board of directors.
14.6. SUBSIDIARIES. THC has one subsidiary.
14.7. FINANCIAL STATEMENTS. THC's unaudited financial
statements of December 31, 1998, copies of which will have been
delivered by THC to TAC by the Merger Date (the "THC Financial
Statements"), are believed to be substantially correct and fairly
present the financial condition of THC as of the date therein and
the results of its operations for the periods then ended in
conformity with generally accepted accounting principles
consistently applied. THC shall deliver audited financial
statements to TAC within sixty (60) days after Closing, as
hereinafter defined.
14.8. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the THC Financial
Statements, THC did not have at that date any liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a
nature customarily reflected in a corporate balance sheet prepared
in accordance with generally accepted accounting principles.
14.9. NO MATERIAL CHANGES. There has been no material
adverse change in the business, properties, or financial condition
of THC since the date of the THC Financial Statements.
14.10. LITIGATION. There is not, to the knowledge of THC,
any pending, threatened, or existing litigation, bankruptcy,
criminal, civil, or regulatory proceeding or investigation,
threatened or contemplated against THC or against any of its
officers.
14.11. CONTRACTS. THC is not a party to any material
contract not in the ordinary course of business that is to be
performed in whole or in part at or after the date of this Agreement.
14.12. TITLE. THC has good and marketable title to all the
real property and good and valid title to all other property
included in the THC Financial Statements. Except as set out in the
balance sheet thereof, the properties of THC are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances
that do not materially interfere with the use of the property in the
conduct of the business of THC.
14.13. NO VIOLATION. Consummation of the merger will not
constitute or result in a breach or default under any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any property of
THC is subject or by which THC is bound.
15. CONDUCT OF TAC PENDING THE MERGER DATE. TAC
covenants that between the date of this Agreement and the Merger Date:
15.1. No change will be made in TAC's articles of
incorporation or bylaws.
15.2. TAC will not make any change in its authorized or
issued capital stock, declare or pay any dividend or other
distribution or issue, encumber, purchase, or otherwise acquire any
of its capital stock other than as provided herein.
15.3. TAC will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors
and will use its best efforts to obtain the requisite shareholder
approval.
15.4. TAC will use its best efforts to maintain and
preserve its business organization, employee relationships, and
goodwill intact, and will not enter into any material commitment
except in the ordinary course of business.
16. CONDUCT OF THC PENDING THE MERGER DATE. THC
covenants that between the date of this Agreement and the Merger Date:
16.1. No change will be made in THC's certificate of
incorporation or bylaws.
16.2. THC will not make any change in its authorized or
issued capital stock, declare or pay any dividend or other
distribution or issue, encumber, purchase, or otherwise acquire any
of its capital stock otherwise than as provided herein.
16.3. THC will submit this Agreement for approval by its
board of directors and will use its best efforts to obtain the
requisite approval.
16.4. THC will use its best efforts to maintain and
preserve its business organization, employee relationships, and
goodwill intact, and will not enter into any material commitment
except in the ordinary course of business.
17. CONDITIONS PRECEDENT TO OBLIGATION OF TAC. TAC's
obligation to consummate this merger shall be subject to fulfillment
on or before the Merger Date of each of the following conditions,
unless waived in writing by TAC:
17.1. THC'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of THC set forth herein shall be true
and correct at the Merger Date as though made at and as of that
date, except as affected by transactions contemplated hereby.
17.2. THC'S COVENANTS. THC shall have performed all
covenants required by this Agreement to be performed by it on or
before the Merger Date.
17.3. SHAREHOLDER APPROVAL. This Agreement shall have been
approved by the required number of shareholders of the Constituent
Corporations, if required by law.
17.4. SUPPORTING DOCUMENTS OF THC. THC shall have
delivered to TAC supporting documents in form and substance
satisfactory to TAC to the effect that:
(i) THC is a corporation duly organized, validly existing,
and in good standing.
(ii) THC's authorized and issued capital stock is as set
forth herein.
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by THC's board of
directors.
18. CONDITIONS PRECEDENT TO OBLIGATION OF THC. THC's
obligation to consummate this merger shall be subject to fulfillment
on or before the Merger Date of each of the following conditions,
unless waived in writing by THC:
18.1. TAC'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of TAC set forth herein shall be true
and correct at the Merger Date as though made at and as of that
date, except as affected by transactions contemplated hereby.
18.2. TAC'S COVENANTS. TAC shall have performed all
covenants required by this Agreement to be performed by it on or
before the Merger Date.
18.3. SHAREHOLDER APPROVAL. This Agreement shall have been
approved by the board of directors and the required number of
shareholders of TAC.
18.4. SUPPORTING DOCUMENTS OF TAC. TAC SHALL HAVE
DELIVERED TO THC supporting documents in form and substance
satisfactory to THC to the effect that:
(i) TAC is a corporation duly organized, validly
existing, and in good standing.
(ii) TAC's authorized and issued capital stock is as set
forth herein.
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by TAC's board of
directors and shareholders.
19. ACCESS. From the date hereof to the Merger Date, THC
and TAC shall provide each other with such information and permit
each other's officers and representatives such access to its
properties and books and records as the other may from time to time
reasonably request. If the merger is not consummated, all documents
received in connection with this Agreement shall be returned to the
party furnishing such documents, and all information so received
shall be treated as confidential.
20. CLOSING. The transfers and deliveries to be made
pursuant to this Agreement (the "Closing") shall be made by and take
place at the offices of the Exchange Agent or other location
designated by the Constituent Corporations without requiring the
meeting of the parties hereof. All proceedings to be taken and all
documents to be executed at the Closing shall be deemed to have been
taken, delivered and executed simultaneously, and no proceeding
shall be deemed taken nor documents deemed executed or delivered
until all have been taken, delivered and executed.
20.1. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission required by
this Agreement or any signature required thereon may be used in lieu
of an original writing or transmission or signature for any and all
purposes for which the original could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or transmission
or original signature.
20.2. At the Closing, TAC shall deliver to the Exchange
Agent in satisfactory form, if not already delivered to THC:
(i) A list of the holders of the shares of TAC Common Stock
exchanged with an itemization of the number of shares held by each,
the address of each holder, and the aggregate number of shares of
THC Common Stock issued to each holder;
(ii) Evidence of the consent of shareholders of TAC to this
Agreement;
(iii) Certificate of the Secretary of State of Delaware as
of a recent date as to the good standing of TAC;
(iv) Certified copies of the resolutions of the board of
directors of TAC authorizing the execution of this Agreement and the
consummation of the Merger;
(v) The TAC Financial Statements;
(vi) Secretary's certificate of incumbency of the officers
and directors of TAC; and
(vii) Any document as may be specified herein or required
to satisfy the conditions, representations and warranties enumerated
elsewhere herein.
20.3. At the Closing, THC shall deliver to the Exchange
Agent in satisfactory form, if not already delivered to TAC:
(i) A list of the shareholders of record of THC, including,
wherever available, addresses and telephone numbers;
(ii) Evidence of the consent of the board of directors of
THC to this Agreement;
(iii) Certificate of the Secretary of State of Delaware as
of a recent date as to the good standing of THC;
(iv) Certified copies of the resolutions of the board of
directors of THC authorizing the execution of this Agreement and the
consummation of the merger;
(v) The THC Financial Statements;
(vi) Secretary's certificate of incumbency of the officers
and directors of THC; and
(vii) Any document as may be specified herein or required
to satisfy the conditions, representations and warranties enumerated
elsewhere herein.
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Constituent Corporations set
out herein shall survive the Merger Date.
22. ARBITRATION.
22.1. SCOPE. The parties hereby agree that any and all
claims (except only for requests for injunctive or other equitable
relief) whether existing now, in the past or in the future as to
which the parties or any affiliates may be adverse parties, and
whether arising out of this agreement or from any other cause, will
be resolved by arbitration before the American Arbitration
Association within the District of Columbia.
22.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The
parties hereby irrevocably consent to the jurisdiction of the
American Arbitration Association and the situs of the arbitration
within the District of Columbia. Any award in arbitration may be
entered in any domestic or foreign court having jurisdiction over
the enforcement of such awards.
22.3. APPLICABLE LAW. The law applicable to the
arbitration and this agreement shall be that of the District of
Columbia, determined without regard to its provisions which would
otherwise apply to a question of conflict of laws.
22.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in
its discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be
modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration.
22.5. RULES OF LAW. Regardless of any practices of
arbitration to the contrary, the arbitrator will apply the rules of
contract and other law of the jurisdiction whose law applies to the
arbitration so that the decision of the arbitrator will be, as much
as possible, the same as if the dispute had been determined by a
court of competent jurisdiction.
22.6. FINALITY AND FEES. Any award or decision by the
American Arbitration Association shall be final, binding and
non-appealable except as to errors of law or the failure of the
arbitrator to adhere to the arbitration provisions contained in this
agreement. Each party to the arbitration shall pay its own costs
and counsel fees except as specifically provided otherwise in this
agreement.
22.7. MEASURE OF DAMAGES. In any adverse action, the
parties shall restrict themselves to claims for compensatory damages
and\or securities issued or to be issued and no claims shall be made
by any party or affiliate for lost profits, punitive or multiple
damages.
22.8. COVENANT NOT TO SUE. The parties covenant that
under no conditions will any party or any affiliate file any action
against the other (except only requests for injunctive or other
equitable relief) in any forum other than before the American
Arbitration Association, and the parties agree that any such action,
if filed, shall be dismissed upon application and shall be referred
for arbitration hereunder with costs and attorney's fees to the
prevailing party.
22.9. INTENTION. It is the intention of the parties and
their affiliates that all disputes of any nature between them,
whenever arising, whether in regard to this agreement or any other
matter, from whatever cause, based on whatever law, rule or
regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that
no party or affiliate be required to litigate in any other forum any
disputes or other matters except for requests for injunctive or
equitable relief. This agreement shall be interpreted in
conformance with this stated intent of the parties and their
affiliates.
22.10. SURVIVAL. The provisions for arbitration contained
herein shall survive the termination of this agreement for any reason.
23. GENERAL PROVISIONS.
23.1. FURTHER ASSURANCES. From time to time, each party
will execute such additional instruments and take such actions as
may be reasonably required to carry out the intent and purposes of
this Agreement.
23.2. WAIVER. Any failure on the part of either party
hereto to comply with any of its obligations, agreements, or
conditions hereunder may be waived in writing by the party to whom
such compliance is owed.
23.3. BROKERS. Each party agrees to indemnify and hold
harmless the other party against any fee, loss, or expense arising
out of claims by brokers or finders employed or alleged to have been
employed by the indemnifying party.
23.4. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been given
if delivered in person or sent by prepaid first-class certified
mail, return receipt requested, or recognized commercial courier
service, as follows:
If to TAC, to:
Torbay Acquisition Corporation
1504 R Street, N.W.
Washington, D.C. 20009
If to THC, to
Torbay Holdings, Inc.
La Belle Epoque
Les Treacheries L'Islet
St Sampsons
Guernsey, CI, GY2 4SN
24. GOVERNING LAW. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State
of Delaware.
25. ASSIGNMENT. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their
successors and assigns; provided, however, that any assignment by
either party of its rights under this Agreement without the written
consent of the other party shall be void.
26. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Signatures sent by facsimile transmission
shall be deemed to be evidence of the original execution thereof.
27. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent
shall be Cassidy & Associates. Closing shall take place on a date
to be agreed to by the parties.
28. EFFECTIVE DATE. This effective date of this
Agreement shall be September 27, 1999.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
BETWEEN TORBAY ACQUISITION CORPORATION AND
TORBAY HOLDINGS, INC.
IN WITNESS WHEREOF, the parties have executed this Agreement.
TORBAY ACQUISITION CORPORATION
By
TORBAY HOLDINGS, INC.
By