ex_10-6.htm


    
      

      

    

    Exhibit
10.6

     

     

     

     

     

     

    
      AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION

      


      BY
AND AMONG

      


      GMS
CAPITAL CORP.

      


      AND

      


      


      METRATECH
RETAIL SYSTEMS, INC.

      


      AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

       

       

       

       

       

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      This AGREEMENT
AND
PLAN
OF
MERGER AND REORGANIZATION (the
"Agreement") is made and entered into as of September 19, 2007, by and among GMS
Capital Corp., a Florida corporation ("Parent"), and Metratech Retail Systems,
Inc., a Canadian federally incorporated company ("Company").

       

      RECITALS

       

      
        	
                A.

              	
                The
      Boards of Directors of Company and Parent believe it is in the best
      interests of their respective companies and the stockholders of their
      respective companies that Company and the Parent complete a reverse merger
      of the Company into the Parent through a share exchange (the "Merger")
      and, in furtherance thereof, have approved the
  Merger.

              


      

       

      
        	
                B.

              	
                Pursuant
      to the Merger, among other things, the outstanding shares of Company
      Common Stock ("Company Common Stock") shall be exchanged for shares of
      Parent Common Stock ("Parent Common Stock"), at the rate set forth
      herein.

              


      

       

      
        	
                C.

              	
                Company
      and Parent desire to make certain representations and warranties and other
      agreements in connection with the
Merger.

              


      

       

      
        	
                D.

              	
                The
      parties intend, by executing this Agreement, to adopt a plan of
      reorganization within the meaning of Section 368 of the Internal Revenue
      Code of 1986, as amended (the "Code"), and to cause the Merger to qualify
      as a reorganization under the provisions of Sections 368(a)(1)(B) of the
      Code, so that such exchange will constitute a tax-free share exchange
      under the Code.

              


      

       

      NOW, THEREFORE, in
consideration of the mutual covenants and premises contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby conclusively acknowledged, the parties hereto, intending to be legally
bound, agree as follows:

      


      ARTICLE
1


      THE
MERGER

      


      
        	
                1.1.  

              	
                THE MERGER. At
      the Closing Date (as defined in Section 1.2) and subject to and upon the
      terms and conditions of this Agreement including the exchange of shares
      described herein, the Company shareholders shall receive shares of Common
      Stock of Parent (the “Parent Common Stock”), the Parent shall receive all
      the outstanding Common Stock of the Company presently owned by the
      Company’s shareholders, and the Parent shall continue as the surviving
      corporation.  Parent as the surviving corporation after the
      Merger is hereinafter sometimes referred to as the "Surviving
      Corporation."

              


      

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

      

      
        	
                1.2.  

              	
                CLOSING. The
      closing of the transactions contemplated hereby (the "Closing") shall take
      place as soon as practicable after the satisfaction or waiver of each of
      the conditions set forth in Article VI hereof or at such other time as the
      parties hereto agree (the "Closing Date"). The Closing shall be held at
      the offices of the Company, or at such other location as the parties
      hereto agree.

              


      

      


      
        	
                1.3.  

              	
                EFFECT OF THE
      MERGER. At the Closing Date, the effect of the Merger shall be as
      provided in this Agreement. Without limiting the generality of the
      foregoing, and subject thereto, at the Closing Date, the Company shall
      become a wholly owned subsidiary of the
Parent.

              


      

      


      
        	
                1.4.  

              	
                CERTIFICATE OF
      INCORPORATION; BYLAWS.

              


      

      


      
        	
                1.4.1.  

              	
                At
      the Closing Date, the Articles of Incorporation of Parent shall be the
      Articles of Incorporation of the Surviving
  Corporation.

              


      

      


      
        	
                1.4.2.  

              	
                The
      Bylaws of Parent, as in effect immediately prior to the Closing Date,
      shall be the Bylaws of the Surviving Corporation until thereafter
      amended.

              


      

      


      
        	
                1.5.  

              	
                DIRECTORS AND
      OFFICERS. At the Closing Date, the directors of the Company shall
      be appointed as the directors of the Parent, in each case until their
      successors are elected or appointed and qualified, or until their earlier
      resignation or removal. The officers of the Company shall be appointed as
      officers of the Parent, until their respective successors are duly
      appointed and qualified or until their earlier resignation or
      removal.

              


      

      


      
        	
                1.6.  

              	
                EFFECT ON CAPITAL
      STOCK. By virtue of the Merger and without any action on the part
      of the Company or the holders of any of the following
      securities:

              


      

      


      
        	
                1.6.1.1.  

              	
                CONVERSION OF COMPANY
      COMMON STOCK. At the Closing Date, (i) all of the shares of the
      Company’s Common Stock issued and outstanding immediately prior to the
      Closing Date will be transferred and assigned to the Parent in
      consideration for the issuance of Two Million, Five Hundred and Seventy
      Eight Thousand (2,578,000) shares of the Parent’s Common Stock (the
      "Exchange Ratio") (the “Merger Consideration”)as
  follows:.

              


      

      


      
        	
                Shareholder

              	
                #
      of shares issued

              
	
                Metratech
      Business Solutions Inc.

              	
                1,000,000

              
	
                Marcel
      Côté

              	
                600,000

              
	
                Spiro
      Krallis

              	
                582,500

              
	
                George
      Samaan

              	
                320,500

              
	
                Epicad
      Design Inc.

              	
                25,000

              
	
                Marc
      Gagnon

              	
                25,000

              
	
                9091-5000
      Quebec Inc.

              	
                25,000

              
	
                Total

              	
                2,578,000

              


      

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      Each
certificate evidencing shares represented by the Merger Consideration issued
pursuant to this Section 1.6.1 shall bear the following legend (in addition to
any legend required under applicable state securities laws).

       

      
        	 	

                THE
      SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
      THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
      TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
      REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE
      IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE CORPORATION
      RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES
      REASONABLY SATISFACTORY TO THE CORPORATION STATING THAT SUCH SALE,
      TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM REGISTRATION AND
      PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."

              	 


      

       

      
        	
                1.7.  

              	
                TAX
      CONSEQUENCES. It is intended by the parties hereto that the Merger
      shall constitute a reorganization within the meaning of Section 368
      (a)(1)(B) of the Code.

              


      

       

      ARTICLE
II

      REPRESENTATIONS
AND WARRANTIES OF COMPANY

       

      In this
Agreement, any reference to any event, change, condition or effect being
"material" with respect to any person means any material event, change,
condition or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such person and its subsidiaries, taken
as a whole. In this Agreement, any reference to a "Material Adverse Effect" with
respect to any person means any event, change or effect that is materially
adverse to the condition (financial or otherwise), properties, assets,
liabilities, business, operations or results of operations of such person and
its subsidiaries, taken as a whole.

       

      In this
Agreement, any reference to a party's "Knowledge" means such party's actual
knowledge after reasonable inquiry of executive officers and directors (within
the meaning of Rule 405 under the Securities Act of 1933, as amended
("Securities Act").

       

      The
Company represents and warrants to Parent as follows:

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      
        	
                2.1  

              	
                ORGANIZATION, STANDING
      AND POWER. The Company is a corporation duly organized, validly
      existing and in good standing in Canada, and no certificate of dissolution
      has been filed under the laws of its jurisdiction of organization. The
      Company has the power to own its properties and to carry on its business
      as now being conducted and as presently proposed to be conducted, and is
      duly authorized and qualified to do business and is in good standing in
      each jurisdiction in which the failure to be so qualified and in good
      standing would have a Material Adverse Effect on Company. The Company is
      not in violation of any of the provisions of its charter or bylaws or
      equivalent organization documents.

              


      

      


      
        	
                2.2  

              	
                AUTHORITY. The
      Company has all requisite corporate power and authority to enter into this
      Agreement and to consummate the transactions contemplated hereby and
      thereby. The execution and delivery of this Agreement and the consummation
      of the transactions contemplated hereby and thereby have been duly
      authorized by all necessary corporate action on the part of Company,
      subject only to the adoption of this Agreement by Company's stockholders
      holding a majority of the outstanding shares of Company Common Stock. This
      Agreement has been duly executed and delivered by Company and constitutes
      the valid and binding obligation of Company enforceable against Company in
      accordance with its terms, except as enforceability may be limited by
      bankruptcy and other laws affecting the rights and remedies of creditors
      generally and general principles of equity. The execution and delivery of
      this Agreement by Company does not, and the consummation of the
      transactions contemplated hereby will not, conflict with, or result in any
      violation of, or default under (with or without notice or lapse of time,
      or both), or give rise to a right of termination, cancellation or
      acceleration of any obligation or loss of any benefit under (i) any
      provision of the Company Articles of Incorporation or Bylaws of Company,
      as amended, or (ii) any mortgage, indenture, lease, contract or other
      agreement or instrument, permit, concession, franchise, license, judgment,
      order, decree, statute, law, ordinance, rule or regulation applicable to
      the Company or any of its properties or assets. No consent, approval,
      order or authorization of, or registration, declaration or filing with,
      any court, administrative agency or commission or other governmental
      authority or instrumentality ("Governmental Entity") is required by or
      with respect to Company in connection with the execution and delivery of
      this Agreement by Company or the consummation by Company of the
      transactions contemplated hereby.

              


      

      


      
        	
                2.3  

              	
                ABSENCE OF CERTAIN
      CHANGES. The Company has no liabilities or obligations (whether
      known or unknown, absolute, accrued, contingent or otherwise and whether
      due or to become due) other than as separately disclosed to the Parent
      .

              


      

      


      
        	
                2.4  

              	
                COMPLIANCE WITH
      LAWS.  The Company has complied with and is not in
      violation of, and have not received any notices of violation with respect
      to, any federal, state, provincial, local or foreign statute, law or
      regulation with respect to the conduct of its business, or the ownership
      or operation of its business, except for such violations or failures to
      comply as would not be reasonably expected to have a Material Adverse
      Effect on the Company.

              


      

      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      
        


        
          	
                  2.5  

                	
                  BROKERS' AND FINDERS'
      FEES.  The Company has not incurred, nor will it
      incur, directly or indirectly, any liability for brokerage or finders'
      fees or agents' commissions or investment bankers' fees or any similar
      charges in connection with this Agreement or any transaction contemplated
      hereby.

                


        

        


        
          	
                  2.6  

                	
                  BOARD APPROVAL. The Board of
      Directors and the holders of the majority of the voting stock of Company
      has approved this Agreement and the Merger. The Board of Directors has (i)
      determined that this Agreement and the Merger are advisable and in the
      best interests of the stockholders of Company and are on terms that are
      fair to such stockholders and (ii) recommended that the stockholders of
      Company adopt and approve this Agreement and the consummation of the
      Merger.

                


        

        


        
          	
                  

                    2.7  
 

                	
                  REPRESENTATIONS COMPLETE. None
      of the representations or warranties made by Company herein or in any
      Schedule hereto, including the Company Disclosure Schedule, or
      certificates furnished by Company pursuant to this Agreement, when all
      such documents are read together in their entirety, contains or will
      contain at the Closing Date any untrue statement of a material fact, or
      omits or will omit at the Closing Date to state any material fact
      necessary in order to make the statements contained herein or therein, in
      the light of the circumstances under which made, not misleading. All
      projected, forecasted or prospective financial information provided by
      Company to Parent has been prepared in good faith on the basis of
      assumptions that the Company believes are reasonable and
      supportable.

                


        

         

      

      ARTICLE
III


      REPRESENTATIONS
AND WARRANTIES OF PARENT

       

      Parent
represents and warrants to the Company as follows:

       

      
        	
                

                  

                    3.1  

                  

                

              	
                ORGANIZATION, STANDING
      AND POWER.  Parent is a corporation duly organized in the
      state of Florida and no certificates of dissolution have been filed under
      the laws of its jurisdiction of organization. Parent represents and
      warrants that Parent has filed all applicable annual reports in the State
      of Florida, as required. Parent has the power to own its properties and to
      carry on its business as now being conducted and as presently proposed to
      be conducted and is duly authorized and qualified to do business and is in
      good standing in each jurisdiction in which the failure to be so qualified
      and in good standing would have a Material Adverse Effect on
      Parent.

              


      

       

      
        	
                

                  3.2  

                

              	
                CAPITAL
      STRUCTURE. The authorized capital stock of Parent consists of
      125,000,000 shares of common stock, $0.001 par value. There are presently
      0 shares issued and outstanding.   All outstanding shares
      of Parent Common Stock are duly authorized, validly issued, fully paid and
      non-assessable and are free of any liens or encumbrances other than any
      liens or encumbrances created by or imposed upon the holders thereof, and
      are not subject to preemptive rights or rights of first refusal created by
      statute, the Articles of Incorporation or Bylaws of Parent or any
      agreement to which Parent is a party or by which it is bound. There are no
      contracts, commitments or agreements relating to voting, purchase or sale
      of Parent's capital stock (i) between or among Parent and any of its
      stockholders and (ii) to the best of Parent's knowledge, between or among
      any of Parent's stockholders.

              


      

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

         

      

      
        	
                

                  3.3  

                

              	
                AUTHORITY.
      Parent has all requisite corporate power and authority to enter into this
      Agreement and to consummate the transactions contemplated hereby. The
      execution and delivery of this Agreement and the consummation of the
      transactions contemplated hereby have been duly authorized by all
      necessary corporate action on the part of Parent.  This
      Agreement has been duly executed and delivered by Parent a and constitutes
      the valid and binding obligations of Parent enforceable against Parent a
      in accordance with its terms, except as enforceability may be limited by
      bankruptcy and other laws affecting the rights and remedies of creditors
      generally and general principles of equity. The execution and delivery of
      this Agreement do not, and the consummation of the transactions
      contemplated hereby will not, conflict with, or result in any violation
      of, or default under (with or without notice or lapse of time, or both),
      or give rise to a right of termination, cancellation or acceleration of
      any obligation or loss of any benefit
under:

              


      

       

      3.3.1 any
provision of the Articles of Incorporation or Bylaws of Parent, as amended,
or;

       

      3.3.2 any
mortgage, indenture, lease, contract or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Parent or its properties or assets.
No consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Entity is required by or with respect to Parent in
connection with the execution and delivery of this Agreement by Parent or the
consummation by Parent of the transactions contemplated hereby.

       

      
        	
                

                  3.4  

                

              	
                LITIGATION.
      There is no private or governmental action, suit, proceeding, claim,
      arbitration, audit or investigation pending before any agency, court or
      tribunal, foreign or domestic, or, to the knowledge of Parent, threatened
      against Parent or any of its respective properties or any of its
      respective officers or directors (in their capacities as such) that,
      individually or in the aggregate, would reasonably be expected to have a
      Material Adverse Effect on Parent. There is no injunction, judgment,
      decree, order or regulatory restriction imposed upon Parent or any of its
      assets or business, or, to the knowledge of Parent, any of its directors
      or officers (in their capacities as such), that would prevent, enjoin,
      alter or materially delay any of the transactions contemplated by this
      Agreement, or that could reasonably be expected to have a Material Adverse
      Effect on Parent.

              


      

       

      
        	
                

                  3.5  

                

              	
                RESTRICTIONS ON
      BUSINESS ACTIVITIES. There is no agreement, judgment, injunction,
      order or decree binding upon Parent which has or reasonably could be
      expected to have the effect of prohibiting or materially impairing any
      business practice of Parent, any acquisition of property by Parent or the
      conduct of business by Parent.

              


      

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

         

      

      
        	
                

                  3.6  

                

              	
                CERTAIN AGREEMENTS
      AFFECTED BY THE MERGER. Neither the execution and delivery of this
      Agreement nor the consummation of the transaction contemplated hereby will
      (i) result in any entitlement, payment or benefit  (including,
      without limitation, severance, unemployment compensation, golden
      parachute, bonus or benefit under any Parent plan or policy or otherwise)
      becoming due to any current or former director or employee of Parent, (ii)
      increase the amount of any entitlements, payments or benefits otherwise
      payable by Parent, or (iii) result in the acceleration of the time of
      payment or vesting of any such entitlements, payments or
      benefits.

              


      

      


      
        	
                

                  3.8  

                

              	
                BROKERS' AND FINDERS'
      FEES. Parent has not incurred, nor will it incur, directly or
      indirectly, any liability for brokerage or finders' fees or agents'
      commissions or investment bankers' fees or any similar charges in
      connection with this Agreement or any transaction contemplated
      hereby.

              


      

      


      
        	
                

                  3.9  

                

              	
                BOARD APPROVAL.
      The Board of Directors of Parent has (i) approved this Agreement and the
      Merger, and (ii) approved the issuance of the shares of Parent Common
      Stock pursuant to this Agreement.

              


      

       

      
        	
                

                  3.10  

                

              	
                REPRESENTATIONS
      COMPLETE. None of the representations or warranties made by Parent
      herein, when all such documents are read together in their entirety,
      contains or will contain at the Closing Date any untrue statement of a
      material fact, or omits or will omit at the Closing Date to state any
      material fact necessary in order to make the statements contained herein
      or therein, in the light of the circumstances under which made, not
      misleading. All projected, forecasted or prospective financial information
      provided by Parent to the Company has been prepared in good faith on the
      basis of assumptions Parent believes are reasonable and
      supportable.

              


      

       

      ARTICLE
IV


      CONDUCT
PRIOR TO THE CLOSING DATE

       

      
        	
                

                  4.1  

                

              	
                CONDUCT OF
      BUSINESS. During the period from the date of this Agreement and
      continuing until the earlier of the termination of this Agreement or the
      Closing Date, each of Parent and Company agrees (except to the extent
      expressly contemplated by this Agreement or as consented to in writing by
      the other party), to carry on its business in the ordinary course in
      substantially the same manner as heretofore conducted, to pay and to cause
      its subsidiaries to pay debts and Taxes when due subject to good faith
      disputes over such debts or taxes, to pay or perform other obligations
      when due, and to use all reasonable efforts consistent with past practice
      and policies to preserve intact its and its subsidiaries' present business
      organizations, use its reasonable best efforts consistent with past
      practice to keep available the services of its present officers and key
      employees and use its reasonable best efforts consistent with past
      practice to preserve its relationships with customers, suppliers,
      distributors, licensors, licensees, and others having business dealings
      with it or its subsidiaries, to the end that its and its subsidiaries'
      goodwill and ongoing businesses shall be unimpaired at the Closing Date.
      The Parent and Company agree to promptly notify the other of any material
      event or occurrence not in the ordinary course of its or its subsidiaries'
      business, and of any event that would have a Material Adverse Effect on
      Parent or Company.

              


      

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

       

      ARTICLE
V

      CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE COMPANY

       

      The
Company’s obligation to enter into and complete the Closing is conditioned upon
the satisfaction or waiver in writing by the Company, on or before the Closing
Date, of all of the following conditions:

       

      
        	
                

                  6.1  

                

              	
                REPRESENTATIONS AND
      WARRANTIES.  The representations and warranties made by Parent
      contained in this Merger Agreement, the schedules or exhibits hereto or in
      any certificate or document delivered to the Company by Parent in
      connection with the transactions contemplated by this Merger Agreement
      shall be true in all respects (without giving effect to any materiality
      qualifications or limitations therein) on and as of the Closing Date with
      the same effect as though such representations and warranties were made on
      such date except for such failures to be true and correct which in the
      aggregate would not reasonably be expected to result in a Material Adverse
      Effect on Parent.

              


      

       

      
        	
                

                  6.2  

                

              	
                PERFORMANCE OF
      COVENANTS.  Parent shall have performed and complied in all
      material respects with all of the agreements and covenants required by
      this Merger Agreement to be performed and complied with by it prior to or
      on the Closing Date.

              


      

       

      
        	
                

                  6.3  

                

              	
                LITIGATION. 
      No injunction shall have been issued by any court or Governmental
      Authority that restrains or prohibits this Merger Agreement, or the
      consummation of the transactions contemplated
  hereby.

              


      

       

      
        	
                

                  6.4  

                

              	
                ANTITRUST LAWS
      COMPLIANCE.  There is an applicable exemption to rules and
      regulations of the Antitrust Laws applicable to the transactions
      contemplated by this Merger
Agreement.

              


      

       

      
        	
                

                  6.5  

                

              	
                SHAREHOLDER
      APPROVAL.  The Company shareholder approval required in
      connection with the consummation of the Merger shall have been obtained,
      or legal counsel of the Company shall issue its opinion that such approval
      is not necessary.

              


      

       

      
        	
                

                  6.7  

                

              	
                MATERIAL
      CHANGES.  There shall not have been any change that has had or
      could reasonably be expected to have a Material Adverse Effect on the
      assets, properties, condition (financial or otherwise), prospects or
      results of operations of the Parent from the date hereof to the Closing
      Date, nor shall there exist any condition which could reasonably be
      expected to result in such a Material Adverse Effect, and there shall have
      been delivered to Parent a certificate, dated the Closing Date, to such
      effect signed by an authorized officer of the
  Parent.

              


      

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

      


      ARTICLE
VI

      CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF

      PARENT


       

      The
obligations of Parent to enter into and complete the Closing are conditioned
upon the satisfaction or waiver by Parent, on or before the Closing Date, of the
following conditions:

       

      
        	
                

                  6.1  

                

              	
                REPRESENTATIONS AND
      WARRANTIES.  The representations and warranties made by the
      Company contained in this Merger Agreement, the schedules or exhibits
      hereto or in any certificate or document delivered to Parent by the
      Company in connection with the transactions contemplated by this Merger
      Agreement shall be true in all respects (without giving effect to any
      materiality qualifications or limitations therein) on and as of the
      Closing Date with the same effect as though such representations and
      warranties were made on such date, except (i) as otherwise
      contemplated by this Merger Agreement and (ii) for such failures to be
      true and correct which in the aggregate would not reasonably be expected
      to result in a Material Adverse Effect on the
  Company.

              


      

       

      
        	
                

                  6.2  

                

              	
                PERFORMANCE OF
      COVENANTS.  The Company shall have performed and complied in
      all material respects with all of the agreements and covenants required by
      this Merger Agreement to be performed and complied with by it prior to or
      on the Closing Date, except as otherwise contemplated by this Merger
      Agreement. 

              


      

       

      
        	
                

                  6.3  

                

              	
                LITIGATION. 
      No injunction shall have been issued by any court or Governmental
      Authority that restrains or prohibits this Merger Agreement, or the
      consummation of the transactions contemplated
  hereby.

              


      

       

      
        	
                

                  6.4  

                

              	
                ANTITRUST LAWS ACT
      COMPLIANCE.  There is an applicable exemption to rules and
      regulations of the Antitrust Laws Act applicable to the transactions
      contemplated by this Merger
Agreement.

              


      

       

      
        	
                

                  6.5  

                

              	
                CONSENTS AND
      APPROVALS.  The consents and approvals specified herein shall
      have been obtained in form and substance satisfactory to Parent in its
      reasonable discretion.

              


      

       

      
        	
                

                  6.6  

                

              	
                MATERIAL
      CHANGES.  There shall not have been any change that has had or
      could reasonably be expected to have a Material Adverse Effect on the
      assets, properties, condition (financial or otherwise), prospects or
      results of operations of the Company from the date hereof to the Closing
      Date, nor shall there exist any condition which could reasonably be
      expected to result in such a Material Adverse Effect, and there shall have
      been delivered to Parent a certificate, dated the Closing Date, to such
      effect signed by an authorized officer of the
  Company.

              


      

      


      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      ARTICLE
VII

      TERMINATION

      


      
        	
                

                  7.1  

                

              	
                TERMINATION
      EVENTS.  This Merger Agreement may be terminated and the
      Merger may be abandoned at any time prior to the Closing Date without
      prejudice to any other rights or remedies either party may have by written
      agreement, duly authorized by the Boards of Directors of Parent and the
      Company;

              


      

       

      
        	
                

                  

                    7.2  

                  

                

              	
                EFFECT OF
      TERMINATION.  In the event this Merger Agreement is terminated
      pursuant to Section 7.1, all further obligations of the parties hereunder
      shall terminate.  Each party’s right of termination hereunder is
      in addition to any other rights it may have hereunder or otherwise and the
      exercise of a right of termination shall not be an election of
      remedies.

              


      

       

      ARTICLE
VIII


      INDEMNIFICATION

      
         

        
          	
                  

                    

                      8.1   

                    

                  

                	
                  Indemnification

                


        

            

        (a) To
the extent, if any, not provided by an existing right under one of the parties,
directors and officers liability insurance policies, from and after the Closing
, Parent shall, to the fullest extent permitted by applicable law, indemnify,
defend and hold harmless each person who is now, or has been at any time prior
to the date hereof, or who becomes prior to the Closing, a director, officer or
employee of the parties hereto or any subsidiary thereof (each an “Indemnified
Party” and, collectively, the “Indemnified Parties”) against all losses,
expenses (including reasonable attorneys' fees and expenses), claims, damages or
liabilities or, subject to the proviso of the next succeeding sentence, amounts
paid in settlement arising out of actions or omissions occurring at or prior to
the Closing  and whether asserted or claimed prior to, at or after the
Closing ) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to the
transactions contemplated by this Agreement.

         

        (b) To
the fullest extent permitted by law, from and after the Closing, all rights to
indemnification now existing in favor of the employees, agents, directors or
officers of Parent and Company and their subsidiaries with respect to their
activities as such prior to the Closing , as provided in Parent's and Company's
certificate of incorporation or bylaws, in effect on the date thereof or
otherwise in effect on the date hereof, shall survive the Share Exchange and
shall continue in full force and effect for a period of not less than three
years from the Closing.

         

        
          
            
            

          

          
            11

            
              

            

          

          
            
            

          

        

         

        (c) The
provisions of this Section 8 are intended to be for the benefit of and shall be
enforceable by, each indemnified Party, his or her heirs and his or her
representatives

      

      


      ARTICLE
NINE


      CLOSING

      
         

        
          	
                  

                    

                      9.1   

                    

                  

                	
                  Deliveries
      by Company. At the Closing, in addition to any other documents or
      agreements required under this Agreement, Company shall deliver to Parent
      the following:

                


        

            

      

      (a) Certificates,
in genuine and unaltered form, representing all of the Company Common Shares,
free and clear of all Liens, duly endorsed in blank or accompanied by duly
executed stock powers endorsed in blank, for transfer to Parent by each of the
individual shareholders of the Company;

      


      (b) Evidence,
in form satisfactory to Parent, that all consents and approvals referred herein
have been obtained;

      


      (c) The
Articles of Incorporation of the Company, as certified by appropriate state
authority;

      


      (d) Certificate
of good standing from the appropriate provincial or
federal  authority;

      


      (e) Such
other agreements, documents and instruments reasonably requested by Parent to
effectuate the transactions contemplated in this Agreement.

      
        
           

          
            	
                    

                      

                        9.2   

                      

                    

                  	
                    Deliveries
      by Parent.
      At the Closing, Parent shall deliver to the Company and its Shareholder
      the following:

                  


          

           

        

      

      (a) 
Certificates evidencing the Parent Common Shares to the Company’s Shareholders
in accordance with Section 1.6.1;

      


      (b) 
The Articles of Incorporation of Parent, as certified by the applicable state
authority;

      


      (c
)  A Certificate of Good Standing for Parent from the applicable state
authorities;

      


      (d) Such
other agreements, documents and instruments reasonably requested by Company to
effectuate the transactions contemplated in this Agreement.

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

       

      ARTICLE
X


      MISCELLANEOUS

       

      
        
          
            	
                    

                      

                        10.1   

                      

                    

                  	
                    CAPTIONS AND HEADINGS. The
      Article and paragraph headings throughout this Agreement are for
      convenience and reference only, and shall in no way be deemed to define,
      limit, or add to the meaning of any provision of this
      Agreement.

                  


          

              

        

      

      
        
          
            	
                    

                      

                        10.2   

                      

                    

                  	
                    NO ORAL CHANGE. This Agreement
      and any provision hereof, may not be waived, changed, modified, or
      discharged orally, but only by an agreement in writing signed by the party
      against whom enforcement of any waiver, change, modification, or discharge
      is sought.

                  


          

                 


        

      

      
        
          
            	
                    

                      

                        10.3   

                      

                    

                  	
                    GOVERNING LAW. This Agreement
      shall be governed by and construed in accordance with the laws of the
      State of Florida , without regard to the laws that might otherwise govern
      under applicable principles of conflicts of law. Each of the parties
      hereto irrevocably consents to the exclusive jurisdiction of any court
      located within the State of Florida in connection with any matter based
      upon or arising out of this Agreement or the matters contemplated herein,
      agrees that process may be served upon them in any manner authorized by
      the laws of the State of Florida for such persons and waives and covenants
      not to assert or plead any objection which they might otherwise have to
      such jurisdiction and such process.

                  


          

                

        

      

      
        
          
            	
                    

                      

                        10.4   

                      

                    

                  	
                    PUBLIC ANNOUNCEMENTS. 
      Subject to any requirement of applicable law or stock exchange listing
      agreement, all public announcements or similar publicity with respect to
      this Merger Agreement or the transactions contemplated hereby shall be
      issued only with the consent of Parent and the Company.  Unless
      consented to by each party hereto in advance prior to the Closing, all
      parties hereto shall keep the provisions of this Merger Agreement strictly
      confidential and make no disclosure thereof to any Person, other than such
      party’s respective legal and financial advisors, subject to the
      requirements of applicable law or securities exchange
      regulations.

                  


          

                 

        

      

      
        
          
            	
                    

                      

                        10.5   

                      

                    

                  	
                    SUCCESSORS.  This Merger
      Agreement shall be binding upon and shall inure to the benefit of the
      parties hereto and their respective successors and permitted
      assigns.

                  


          

                   

        

      

      
        
          
            	
                    

                      

                        10.6   

                      

                    

                  	
                    FURTHER ASSURANCES.  Each
      of the parties hereto agrees that it will, from time to time after the
      date of this Merger Agreement, execute and deliver such other
      certificates, documents and instruments and take such other action as may
      be reasonably requested by the other party to carry out the actions and
      transactions contemplated by this Merger
  Agreement.

                  


          

               

        

      

      
        
          
            	
                    

                      

                        10.7   

                      

                    

                  	
                    NOTICES. All notices requests,
      demands, and other communications under this Agreement shall be in writing
      and shall be deemed to have been duly given on the date of service if
      served personally on the party to whom notice is to be given, or on the
      third day after mailing if mailed to the party to whom notice is to be
      given, by first class mail, registered or certified, postage prepaid, and
      properly addressed, and by fax, as
follows:

                  


          

           

          
            
              
              

            

            
              13

              
                

              

            

            
              
              

            

          

        



      If to Parent
:

      


      George
Metrakos

      PO Box
274, STN NDG

      Montreal,
QC H4A 3P6

      Telephone:
(514) 287-0103

      Fax:
(514) 938-6066

      


      With a copy
to:

      


      Joseph I.
Emas

      Attorney
at Law

      1224
Washington Avenue

      Miami
Beach, Florida 33139

      Telephone:
(305) 531-1174

      


      If to the
Company:

      


      George
Metrakos

      PO Box
274, STN NDG

      Montreal,
QC H4A 3P6

      Telephone:
(514) 287-0103

      Fax:
(514) 938-6066

      


      
        	
                

                  

                    10.9   

                  

                

              	
                NON-WAIVER.
      Except as otherwise expressly provided herein, no waiver of any covenant,
      condition, or provision of this Agreement shall be deemed to have been
      made unless expressly in writing and signed by the party against whom such
      waiver is charged; and (i) the failure of any party to insist in any one
      or more cases upon the performance of any of the provisions, covenants, or
      conditions of this Agreement or to exercise any option herein contained
      shall not be construed as a waiver or relinquishment for the future of any
      such provisions, covenants, or conditions, (ii) the acceptance of
      performance of anything required by this Agreement to be performed with
      knowledge of the breach or failure of a covenant, condition, or provision
      hereof shall not be deemed a waiver of such breach or failure, and (iii)
      no waiver by any party of one breach by another party shall be construed
      as a waiver with respect to any other or subsequent
  breach.

              


      

      


      
        	
                

                  

                    10.10   

                  

                

              	
                TIME OF
      ESSENCE. Time
      is of the essence of this Agreement and of each and every provision
      hereof.

              


      

      


      
        	
                

                  10.11   

                

              	
                REMEDIES
      CUMULATIVE. Except as otherwise provided herein, any and all
      remedies herein expressly conferred upon a party will be deemed cumulative
      with and not exclusive of any other remedy conferred hereby, or by law or
      equity upon such party, and the exercise by a party of any one remedy will
      not preclude the exercise of any other
remedy.

              


      

      


      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

         

      

      
        	
                

                  10.12   

                

              	
                SEVERABILITY.
      If any provision of this Agreement, or the application thereof, becomes or
      is declared by a court of competent jurisdiction to be illegal, void or
      unenforceable, the remainder of this Agreement will continue in full force
      and effect and the application of such provision to other persons or
      circumstances will be interpreted so as reasonably to effect the intent of
      the parties hereto. The parties further agree to replace such void or
      unenforceable provision of this Agreement with a valid and enforceable
      provision that will achieve, to the extent possible, the economic,
      business and other purposes of such void or unenforceable
      provision.

              


      

      


      
        	
                

                  10.13   

                

              	
                ENTIRE
      AGREEMENT. This Agreement contains the entire Agreement and
      understanding between the parties hereto, and supersedes all prior
      agreements and understandings.

              


      

      


      
        	
                

                  10.14   

                

              	
                RULES OF
      CONSTRUCTION. The parties hereto agree that they have been
      represented by counsel during the negotiation, preparation and execution
      of this Agreement and, therefore, waive the application of any law,
      regulation, holding or rule of construction providing that ambiguities in
      an agreement or other document will be construed against the party
      drafting such agreement or
document.

              


      

      


      
        	
                

                  10.15   

                

              	
                EXPENSES. 
      Except as expressly otherwise provided herein, each party shall bear its
      own expenses incurred in connection with the preparation, execution and
      performance of this Merger Agreement and the transactions contemplated
      hereby, including all fees and expenses of agents, representatives,
      counsel and accountants.  All such expenses incurred by the
      Company (“Company Transaction Expenses”) shall be repaid in full at the
      Closing.

              


      

      


      
        	
                

                  10.16   

                

              	
                COUNTERPARTS.
      This Agreement  maybe executed in one or more counterparts, all
      of which shall be considered one and the same agreement and shall become
      effective when one or more counterparts have been signed by each of the
      parties and delivered to the other parties, it being understood that all
      parties need not sign the same
counterpart.

              


      

      


      
         
[SIGNATURES
ON FOLLOWING PAGE]

         

        
          
            
            

          

          
            15

            
              

            

          

          
            
            

          

        

      

       

      IN
WITNESS WHEREOF, the parties have executed this Merger Agreement as of the date
first above written.

       

      
        
          	PARENT 	 	 	THE
      COMPANY	 
	 	 	 	 	 
	GMS
      CAPITAL CORP.	 	 	METRATECH
      RETAIL SYSTEMS, INC.	 
	 	 	 	 	 
	
                  /s/
      George Metrakos

                	 	 	
                  /s/
      George Metrakos

                	 
	
                  Name:
      George Metrakos

                	 	 	
                  Name:
      George Metrakos

                	 
	
                  Title:
      President, CEO, CFO and Chairman

                	 	 	
                  Title:  President
      and Chairman

                	 


        

      

                                                                                

       

      16