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Exhibit 2.3
Form 10-SB
Xx. Xxxxxxxxxxx'x Original Formulas Inc.
File No.:
PLAN OF MERGER
THIS PLAN OF MERGER, dated June 20, 2001, is made and
entered into by and between Xx. Xxxxxxxxxxx'x Original Formulas,
Inc., a New Jersey corporation ("Xx. Xxxxxxxxxxx'x"), and Xx.
Xxxxxxxxxxx'x Original Formulas, Inc., a Nevada corporation
("DCOF"). DCOF is sometimes hereinafter referred to as the
"Surviving Corporation," and Xx. Xxxxxxxxxxx'x is sometimes
hereinafter referred to as the "Constituent Corporation."
WITNESSETH
WHEREAS, Xx. Xxxxxxxxxxx'x is a corporation duly organized
and existing under the laws of the state of New Jersey, having an
authorized capital of 50,000,000 shares of common stock, with
$0.001 par value per share (the "Common Stock of Xx.
Xxxxxxxxxxx'x"), of which 5,033,716 shares are issued and
outstanding as of the date hereof; and
WHEREAS, DCOF is a corporation duly organized and existing
under the laws of the state of Nevada, having an authorized
capital of 60,000,000 shares, of which 10,000,000 shares are
designated as preferred stock, par value $0.001 and 50,000,000
shares are designated as common stock, par value $0.001 (the
"Common Stock of DCOF"), and of which no shares are issued and
outstanding as of the date hereof; and
WHEREAS, the respective boards of directors of Xx.
Xxxxxxxxxxx'x and DCOF have each duly approved this Plan of
Merger (the "Plan") providing for the merger of Xx. Xxxxxxxxxxx'x
with and into DCOF with DCOF as the surviving corporation as
authorized by the statutes of the states of Nevada and New
Jersey.
NOW, THEREFORE, based on the foregoing premises and in
consideration of the mutual covenants and agreements herein
contained, and for the purpose of setting forth the terms and
conditions of said merger and the manner and basis of causing the
shares of Common Stock of Xx. Xxxxxxxxxxx'x to be converted into
shares of Common Stock of DCOF and such other provisions as are
deemed necessary or desirable, the parties hereto have agreed and
do hereby agree, subject to the approval and adoption of this
Plan by the requisite vote of the stockholders of Xx.
Xxxxxxxxxxx'x, and subject to the conditions hereinafter set
forth, as follows:
ARTICLE I
MERGER AND NAME OF SURVIVING CORPORATION
On the effective date of the merger, Xx. Xxxxxxxxxxx'x shall
cease to exist separately and Xx. Xxxxxxxxxxx'x shall be merged
with and into DCOF, which is hereby designated as the "Surviving
Corporation," the name of which on and after the effective date
of the merger shall be
"Xx. Xxxxxxxxxxx'x Original Formulas, Inc." or such other name as
may be available and to which the parties may agree.
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ARTICLE II
TERMS AND CONDITIONS OF MERGER
The terms and conditions of the merger are (in addition to
those set forth elsewhere in this Plan) as follows:
1) On the effective date of the merger:
(i) Xx. Xxxxxxxxxxx'x shall be merged into DCOF to
form a single corporation and DCOF shall be, and is
designated herein as, the Surviving Corporation;
(ii) The separate existence of Xx. Xxxxxxxxxxx'x shall
cease;
(iii) The Surviving Corporation shall have all the
rights, privileges, immunities and powers and shall be
subject to all duties and liabilities of a corporation
organized under the laws of Nevada; and
(iv) The Surviving Corporation shall thereupon and
thereafter possess all the rights, privileges,
immunities, and franchises, of a public as well as of a
private nature, of the Constituent Corporation; and all
property, real, personal, and mixed, and all debts due
of whatever account, including subscriptions to shares,
and all other causes of action, and all and every other
interest, of or belonging to or due to the Constituent
Corporation, shall be taken and deemed to be
transferred to and vested in the Surviving Corporation
without further act or deed; the title to any real
estate, or any interest therein, vested in the
Constituent Corporation shall not revert or be in any
way impaired by reason of the merger; the Surviving
Corporation shall thenceforth be responsible and liable
for all the liabilities and obligations of the
Constituent Corporation; any claim existing or action
or proceeding pending by or against the Constituent
Corporation may be prosecuted as if the merger had not
taken place, or the Surviving Corporation may be
substituted in place of the Constituent Corporation;
and neither the rights of creditors nor any liens on
the property of the Constituent Corporation shall be
impaired by the merger.
2) On the effective date of the merger, the board of directors
of the Surviving Corporation and the members thereof, shall be
and consist of the members of the board of directors of DCOF
immediately prior to the merger, to serve thereafter in
accordance with the bylaws of the Surviving Corporation and until
their respective successors shall have been duly elected and
qualified in accordance with such bylaws and the laws of the
state of Nevada.
3) On the effective date of the merger, the officers of the
Surviving Corporation shall be and consist of the officers of
DCOF immediately prior to the merger, such officers to serve
thereafter in accordance with the bylaws of the Surviving
Corporation and until
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their respective successors shall have been duly elected and
qualified in accordance with such bylaws and the laws of the
state of Nevada.
4) If on the effective date of the merger, a vacancy shall
exist in the board of directors or in any of the offices of the
Surviving Corporation, such vacancy may be filled in the manner
provided in the bylaws of the Surviving Corporation and the laws
of the state of Nevada.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
The manner and basis of converting the shares of Common
Stock and securities of Xx. Xxxxxxxxxxx'x into shares of the
Common Stock and securities of DCOF, and the mode of carrying the
merger into effect are as follows:
1) Each one share of Common Stock of Xx. Xxxxxxxxxxx'x
outstanding on the effective date of the merger shall, without
any action on the part of the holder thereof, be converted into
one fully paid and nonassessable share of Common Stock of the
Surviving Corporation, so that the 5,033,716 outstanding shares
of Xx. Xxxxxxxxxxx'x are converted into an aggregate of
approximately 5,033,716 shares of DCOF, which shall be, on
conversion, validly issued and outstanding, fully paid, and
nonassessable, and shall not be liable to any further call, nor
shall the holder thereof be liable for any further payment with
respect thereto. Until so surrendered, each such outstanding
certificate of Xx. Xxxxxxxxxxx'x which, prior to the effective
date of the merger, represented shares of the Common Stock of Xx.
Xxxxxxxxxxx'x shall for all purposes evidence the ownership of
the shares of Common Stock of DCOF into which such shares shall
have been converted. DCOF shall not issue any fractional
interest in shares of Common Stock of DCOF in connection with the
aforesaid conversion and the number of shares of DCOF to which
Xx. Xxxxxxxxxxx'x shares will be converted shall be rounded to
the nearest whole number of shares.
2) All shares of Common Stock of DCOF into which shares of the
Common Stock of Xx. Xxxxxxxxxxx'x shall have been converted
pursuant to this Article III shall be issued in full satisfaction
of all rights pertaining to the shares of Common Stock of Xx.
Xxxxxxxxxxx'x.
3) If any certificate for shares of Common Stock of DCOF is to
be issued in a name other than that in which the certificate
surrendered in exchange therefore is registered, it shall be a
condition of the issuance thereof that the certificate so
surrendered shall be properly endorsed and otherwise in proper
form for transfer and that the person requesting such exchange
pay to DCOF or any agent designated by it any transfer or other
taxes required by reason of the issuance of a certificate for
shares of Common Stock of DCOF in any name other than that of the
registered holder of the certificate surrendered, or establish to
the satisfaction of DCOF and or any agent designated by it that
such tax has been paid or is not payable.
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4) On the effective date: (a) DCOF will assume and
continue the 2000 Stock Incentive Plan of Xx. Xxxxxxxxxxx'x
and any successor plan or plans, and the number of shares
of DCOF Common Stock subject to the existing stock plan
assumed by DCOF shall be 1,000,000 shares; and (b) the
outstanding and unexercised portions of all options to buy
Xx. Xxxxxxxxxxx'x Common Stock shall become options for the
same number of shares of DCOF Common Stock, the exercise
price for such options to buy DCOF Common Stock shall be
the same exercise price under the options to buy Xx.
Xxxxxxxxxxx'x Common Stock, there will be no other changes
in the terms and conditions of such options, and DCOF shall
assume the outstanding and unexercised portions of such
options and the obligations of Xx. Xxxxxxxxxxx'x with
respect thereto as modified hereby.
ARTICLE IV
ARTICLES OF INCORPORATION AND BYLAWS
1) The articles of incorporation of DCOF shall, on the merger
becoming effective, be and constitute the articles of
incorporation of the Surviving Corporation unless and until
amended in the manner provided by law.
2) The bylaws of DCOF shall, on the merger becoming effective,
be and constitute the bylaws of the Surviving Corporation until
amended in the manner provided by law.
ARTICLE V
OTHER PROVISIONS WITH RESPECT TO MERGER
This Plan, having been approved by the directors of DCOF,
shall not require a vote of shareholders, as there is no stock
currently issued and outstanding of DCOF. This Plan shall be
submitted to a vote of shareholders of Xx. Xxxxxxxxxxx'x pursuant
to a written consent as provided by the laws of the state of New
Jersey. After the approval or written consent thereof by the
shareholders of Xx. Xxxxxxxxxxx'x and the directors of DCOF in
accordance with the requirements of the laws of the states of New
Jersey and Nevada, respectively, all required documents shall be
executed, filed, and recorded in accordance with all requirements
of the states of New Jersey and Nevada.
ARTICLE VI
APPROVAL AND EFFECTIVE DATE OF THE MERGER; MISCELLANEOUS MATTERS
1) In order to aid the parties in establishing a date certain
for effectiveness of the merger for accounting and other
purposes, the merger shall be deemed to have become effective as
of the filing date with the Nevada Secretary of State. In
furtherance of the merger, the parties hereto shall perform the
following:
(i) This Plan shall be authorized, adopted, and approved on
behalf of the Constituent Corporation and the Surviving
Corporation in accordance with the laws of the states of New
Jersey and Nevada; and
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(ii) Articles of Merger (with this Plan attached as part
thereof), setting forth the information required by, and executed
and certified in accordance with, the laws of the states of New
Jersey and Nevada, shall be filed in the office of the secretary
of state of the states of New Jersey and Nevada and each
secretary of state shall have issued a certificate of merger
reflecting such filing.
2) If at any time the Surviving Corporation shall deem or be
advised that any further grants, assignments, confirmations, or
assurances are necessary or desirable to vest, perfect, or
confirm title in the Surviving Corporation, of record or
otherwise, to any property of Xx. Xxxxxxxxxxx'x acquired or to be
acquired by, or as a result of, the merger, the officers and
directors of Xx. Xxxxxxxxxxx'x or any of them shall be severally
and fully authorized to execute and deliver any and all such
deeds, assignments, confirmations, and assurances and to do all
things necessary or proper so as to best prove, confirm, and
ratify title to such property in the Surviving Corporation and
otherwise carry out the purposes of the merger and the terms of
this Plan.
3) For the convenience of the parties and to facilitate the
filing and recording of this Plan, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed
to be an original instrument and all such counterparts together
shall be considered one instrument.
4) This Plan shall be governed by and construed in accordance
with the laws of the state of Nevada.
5) This Plan cannot be altered or amended except pursuant to an
instrument in writing signed on behalf of the parties hereto.
IN WITNESS WHEREOF, Xx. Xxxxxxxxxxx'x and DCOF have caused
this Plan of Merger to be executed, all as of the date first
above written.
XX. XXXXXXXXXXX'X XX. XXXXXXXXXXX'X
ORIGINAL FORMULAS, INC. ORIGINAL FORMULAS, INC.
a New Jersey corporation a Nevada corporation
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
Its President Its President
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