Exhibit 2.1
Form 10-SB
Xx. Xxxxxxxxxxx'x Original Formulas Inc.
File No.:
AGREEMENT AND PLAN OF EXCHANGE
This AGREEMENT AND PLAN OF EXCHANGE (the "Exchange
Agreement"), effective as of March 16, 2000, is made by and
between University Graphics, Inc., a New Jersey corporation
("UGI"), Xx. Xxxxxxxxxxx'x Original Formulas, Inc., a Utah
corporation ("DCO"), and each of the stockholders of DCO listed on
Exhibit A attached hereto who are required to tender their shares
for exchange as provided herein ("DCO Stockholders").
The authorized capital stock of DCO consists of 5,000,000
shares of Common Stock, no par value ("DCO Common Stock") and the
authorized capital stock of UGI consists of 5,000,000 shares of
Common Stock, $0.10 par value, as of the date of this Exchange
Agreement and shall be 50,000,000, par value $0.001, if the
stockholders of UGI approve an amendment to the Articles of
Incorporation of UGI at the meeting of stockholders scheduled to
occur on or about April 7, 2000 (the "UGI Common Stock"). The
directors of both UGI and DCO deem it advisable and to the
advantage of said corporations that UGI acquire DCO as a
subsidiary upon the terms and conditions provided herein.
NOW, THEREFORE, the parties hereby adopt the plan of
reorganization encompassed by this Exchange Agreement and hereby
agree that UG1 shall acquire DCO as a subsidiary on the following
terms, conditions and other provisions:
1. Terms and Conditions.
1.1 Exchange. Pursuant to this Exchange Agreement, all issued
and outstanding shares of DCO Common Stock are being transferred
and assigned to UGI in exchange for postreverse split UGI Common
Stock as follows:
(a) The DCO Stockholders listed on Exhibit A attached hereto
shall transfer and assign to UGI, DCO Common Stock in exchange for
UGI Common Stock at the rate of one share of DCO Common Stock for
0.6515909 fully paid and nonassessable shares of UGI Common Stock,
or a total of 4,400,000 shares of DCO Common Stock for
approximately 2,867,000 shares of UGI Common Stock.
(b) No fractional shares will be issued upon the exchange
contemplated by paragraph 1.1(a), but if the exchange results in a
fractional interest, the number of shares issued shall be rounded
up to the nearest whole share.
(c) The UGI Common Stock issued in exchange for the DCO
Common Stock shall be, when issued, fully paid and non-assessable.
2. Additional Covenants.
2.1 Amendment. At any time prior to the completion of the
actions described in paragraph 1.1(a), above, this Exchange
Agreement may be amended in any manner as may be determined in the
judgment of the respective Boards of Directors of DCO and UGI to
be necessary, desirable or expedient in order to clarify the
intention of the parties hereto or to effect or facilitate the
purpose and intent of this Exchange Agreement.
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2.2 Abandonment. At any time prior to the completion of the
actions described in paragraph 1.1(a), above, this Exchange
Agreement may be terminated and the exchange may be abandoned by
the Board of Directors of DCO or UGL
2.3 DCO Status and Approval. As an inducement to, and to
obtain the reliance of, UGI, DCO represents and warrants as
follows:
(a) DCO is a corporation duly organized and validly existing
under the laws of the state of Utah. The execution and delivery of
this Exchange Agreement does not, and the consummation of the
transactions contemplated by this Exchange Agreement in accordance
with the terms hereof will not: violate any provision of the
articles of incorporation, charter or bylaws of DCO; result in the
breach of, constitute a default under, result in the acceleration
of, create in any person the right to accelerate, terminate,
modify, cancel, or require any notice under, any material
agreement, contract, lease, license, instrument, or other
arrangement to which DCO is a party or by which it is bound or to
which any of its assets is subject; or, violate any statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court of which DCO has knowledge and to which it is
subject, the result of which would have a material adverse effect
on the proposed business operations, assets, or financial
condition of DCO.
(b) DCO has full power and authority, and has taken all
action required by law, its articles of incorporation and bylaws,
and otherwise to execute and deliver this Exchange Agreement and
to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of DCO has
duly authorized the execution, delivery, and performance of this
Exchange Agreement by DCO. This Exchange Agreement represents the
valid and binding obligation of DCO enforceable in accordance with
its terms.
2.7 UGI Status and Approval. As an inducement to, and to
obtain the reliance of, DCO, UGI represents and warrants as
follows:
(a) UGI is a corporation duly organized and validly existing
under the laws of the state of New Jersey. The execution and
delivery of this Exchange Agreement does not, and the consummation
of the transactions contemplated by this Exchange Agreement in
accordance with the terms hereof will not: violate any provision
of the articles of incorporation, charter or bylaws of UGI; result
in the breach of, constitute a default under, result in the
acceleration of, create in any person the right to accelerate,
terminate, modify, cancel, or require any notice under, any
material agreement, contract, lease, license, instrument, or other
arrangement to which UGI is a party or by which it is bound or to
which any of its assets is subject; or, violate any statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court of which UGI has knowledge and to which it is
subject, the result of which would have a material adverse effect
on the proposed business operations, assets, or financial
condition of UGI.
(b) UGI has full power and authority, and has taken all
action required by law, its articles of incorporation and bylaws,
and otherwise to execute and deliver this Exchange Agreement and
to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of UGI has
duly authorized the execution, delivery, and performance of this
Exchange Agreement by UGL This Exchange Agreement represents the
valid and binding obligation of UGI enforceable in accordance with
its terms.
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2.8 DCO Stockholder Status and Approval. As an inducement to,
and to obtain the reliance of, UGI, each of the DCO Stockholders
for itself represents and warrants as follows:
(a) The execution and delivery of this Exchange Agreement
does not, and the consummation of the transactions contemplated by
this Exchange Agreement in accordance with the terms hereof will
not: result in the breach of, constitute a default under, result
in the acceleration of, create in any person the right to
accelerate, terminate, modify, cancel, or require any notice
under, any material agreement, contract, lease, license,
instrument, or other arrangement to which the DCO Stockholder is a
party or by which it is bound or to which any of its assets is
subject; or, violate any statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of
any government, governmental agency, or court of which the DCO
Stockholder has knowledge and to which it is subject.
(b) The DCO Stockholder has full power and authority to
execute and deliver this Exchange Agreement and to perform its
obligations hereunder. This Exchange Agreement represents the
valid and binding obligation of UGI enforceable in accordance with
its terms.
(c) The DCO Stockholder has good and marketable title to the
DCO Common Stock owned by its free of any liens, encumbrances or
security interests, whatsoever.
(d) With respect to the acquisition of UGI Common Stock,
each DCO Stockholder further represents and warrants:
(i) The DCO Stockholder is over the age of 18 years;
(ii) The DCO Stockholder acknowledges that neither the United
States Securities and Exchange Commission nor the securities
commission of any state or other federal agency has made any
determination as to the merits of purchasing these securities;
(iii) The DCO Stockholder acknowledges that an investment
in the Company involves high risks;
(iv) The DCO Stockholder, either alone or with the assistance
of one or more advisers engaged by him or her, has such knowledge
and experience in business and financial matters that he or she is
capable of evaluating the Company, its business operations, and
the risks and merits of an investment in the Company;
(v) The DCO Stockholder has been provided with all materials
and information requested by the DCO Stockholder or his or her
representatives, including any information requested to verify any
information furnished, and the DCO Stockholder has been provided
the opportunity for direct communication between the UGI and DCO
and their representatives and the DCO Stockholder and its
representatives regarding the purchase made hereby, including the
opportunity to ask questions of and receive answers from the UGI
and DCO;
(vi) The DCO Stockholder has no present intention of dividing
any of the securities or the rights under this Exchange Agreement
with others or of reselling or otherwise disposing of any portion
of the securities, either currently or after the passage of a
fixed or determinable period of time or on the occurrence or
nonoccurrence of any predetermined event or circumstance;
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(vii) The DCO Stockholder was at no time solicited by any
leaflet, public promotional meeting, circular, newspaper or
magazine article, radio or television advertisement, or any other
form of general advertising or solicitation in connection with the
offer, sale, or purchase of the securities through this Exchange
Agreement; and
(viii) The DCO Stockholder has adequate means of providing
for his or her current needs and possible contingencies and has no
need now and anticipates no need in the foreseeable future, to
sell any portion of the securities for which the DCO Stockholder
hereby subscribes; the DCO Stockholder is able to bear the
economic risks of this investment and, consequently, without
limiting the generality of the foregoing, is able to hold the
securities for an indefinite period of time, and has a sufficient
net worth to sustain a loss of the entire investment, in the event
such loss should occur.
(e) Each DCO Stockholder represents that the UGI Common Stock
is being acquired without a view to, or for, resale in connection
with any distribution of the securities or any interest therein
without registration or other compliance under the Securities Act
of 1933, and that the DCO Stockholder has no direct or indirect
participation in any such undertaking or in the underwriting of
such an undertaking. The DCO Stockholder understands that the
securities have not been registered, but are being acquired by
reason of a specific exemption under the Securities Act of 1933 as
well as under certain state statutes for transactions by an issuer
not involving any public offering and that any disposition of the
securities may, under certain circumstances, be inconsistent with
this exemption and may make the DCO Stockholder an C6 underwriter"
within the meaning of the Securities Act of 1933. The DCO
Stockholder acknowledges that the securities must be held and may
not be sold, transferred, or otherwise disposed of for value
unless they are subsequently registered under the Act or an
exemption from such registration is available. UGI is under no
obligation to register the securities under the Securities Act of
1933 or under Section 12 of the Securities Exchange Act of 1934,
as amended, except as may be expressly agreed to by it in writing.
The certificates representing the securities will bear a legend
restricting transfer, except in compliance with applicable federal
and state securities statutes.
3. Closing.
3.1 Conditions to Closing. Closing of the exchange
contemplated by paragraph 1.1(a) is subject to UGI holding a
meeting of stockholders on or about April 7, 2000, at which the
stockholders approve the following proposals:
(a) To amend the Company's Articles of Incorporation to:
(i) Change the name of the Company to "Xx. Xxxxxxxxxxx'x
Original Formulas, Inc.",
(ii) Change the authorized capitalization of the Company to
50,000,000 shares of common stock, par value $0.001, and
(iii) Change the vote required for approval of any merger,
consolidation, or other corporate reorganization in which
stockholder approval is required by the New Jersey Business
Corporation Act from two-thirds to a majority.
(b) To effect a reverse split in the issued and outstanding
common stock of the Company, so that each shareholder will receive
one share of common stock for every three shares now held.
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(c) To approve the Company's acquisition of Xx. Xxxxxxxxxxx'x
Original Formulas, Inc., a Utah corporation, as a wholly owned
subsidiary in exchange for 2,867,000 post-reverse split common
shares of the Company.
(d) To approve sale of the Company's sole asset, a note
receivable in the amount of $400,000, to Xxxx Xxxxxx, a former
officer and director of the Company, in consideration of his
assumption and discharge of all obligations of the Company in the
amount of approximately $400,000.
(e) To elect Xxxxxx Xxxxx, Xxxxx X. Xxxxxxx, and Xxxx Xxxxx,
as directors of the Company to serve until the next annual meeting
of stockholders and their successors are duly elected and
qualified.
3.2 Closing. The closing of the exchange contemplated by
paragraph 1.1 shall be held within five days following the date of
the meeting of stockholders provided for in paragraph 3.1 at a
location mutually agreed to by UGI and DCO. At the closing each of
the DCO Stockholders will deliver to UGI their certificates
representing their DCO Common Stock duly endorsed for transfer
with signature guarantees and will receive in exchange therefor
certificates representing UGI Common Stock in the amounts
resulting from the ratio of exchange set forth is paragraph
1.1(a).
4. Miscellaneous.
(a) This Exchange Agreement shall be governed by, enforced,
and construed under and in accordance with the laws of the state
of Utah. The state and federal courts of the state of Utah shall
have exclusive jurisdiction in any litigation arising under or
pertaining to this Exchange Agreement, and by the execution hereof
each of the parties hereto irrevocably submits to the personal and
subject matter jurisdiction of such Utah courts.
(b) In the event any party institutes any action or suit to
enforce this Exchange Agreement or to secure relief from any
default or breach hereof, the breaching party or parties shall
reimburse the non-breaching party or parties for all costs,
including reasonable attorney's fees, incurred in connection
therewith and in enforcing or collecting any judgment rendered
therein.
(c) This Exchange Agreement is solely between UGI, DCO, and
the DCO Stockholders, and no other person or entity shall be
deemed to be a third party beneficiary of this Exchange Agreement.
(d) This Exchange Agreement represents the entire agreement
between the parties relating to the subject matter hereof, and all
previous negotiations, discussions, correspondence, memoranda, and
other communications are merged into this Exchange Agreement. This
Exchange Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof.
There are no other courses of dealing, understandings, agreements,
representations, or warranties, written or oral, except as set
forth herein.
(e) Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently
herewith. No waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same
or any other default then, theretofore, or thereafter occurring or
existing. This Exchange Agreement may be amended by a writing
signed by all parties hereto, with respect to any of the terms
contained herein, and any term or condition of this Exchange
Agreement may be waived or the time for performance thereof may be
extended by a writing signed by the party or parties for whose
benefit the provision is intended.
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(f) This Exchange Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
IN WITNESS WHEREOF, this Exchange Agreement has been signed
as of the date first above written for and on behalf of the
corporate parties hereto by each of the DCO Stockholders thereunto
duly authorized.
University Graphics, Inc. Xx. Xxxxxxxxxxx'x
Original Formulas, Inc.
By /s/ Xxxxxx Xxxxx By /s/ Xxxxxx Xxxxx
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