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EXHIBIT 2.5
AGREEMENT OF MERGER
OF
AMERICAN GRAPHICS INDUSTRIES, INC.
a Delaware Corporation
AND
HAWAIIAN VINTAGE CHOCOLATE COMPANY, INC.
a Hawaii Corporation
This agreement of merger (the "Agreement of Merger") is made on 9/30, 1997
by and between Hawaiian Vintage Chocolate Company, Inc. (""HVCC"), a corporation
organized under the laws of the State of Hawaii, with its principal office
located at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx 00000, and American
Graphics Industries, Inc. (""AGI"), a corporation organized under the laws of
the State of Delaware, with its principal office located at Xxx Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000.
RECITALS
WHEREAS, AGI is a debtor in a Chapter 11 proceeding in the U.S. Bankruptcy
Court of the District of New Jersey, Case No. 94-27979 (NLW) (the "Proceeding"),
in which Proceeding AGI is subject to the Order Confirming Modification of
Amended Plan of Reorganization filed August 19, 1997 (the "Order");
WHEREAS, the board of directors of HVCC deems it desirable and in the best
interest of the corporation and its shareholders that AGI be merged into HVCC
pursuant to the Order;
WHEREAS, AGI, pursuant to the Order, has agreed to and is authorized to
merge into HVCC; and
WHEREAS, for the reasons set forth above, and in consideration of the
mutual covenants and promises of the parties hereto, the constituent
corporations agree, pursuant to the Order, that AGI shall be merged into HVCC
and the parties agree to and prescribe the terms and conditions of such merger,
the method of carrying it into effect, and the manner of converting the shares
of AGI into shares or other securities of HVCC, as hereinafter set
forth and as set forth in the Order.
SECTION ONE
HVCC TO BE SURVIVING CORPORATION
AGI shall be merged into HVCC, and the corporate existence of AGI shall
cease and the corporate existence of HVCC shall continue under the name Hawaiian
Vintage Chocolate Company, Inc. HVCC shall succeed to all the rights,
privileges, immunities, and franchises,
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and all the property, real, personal, and mixed, of AGI, without the necessity
for any separate transfer.
HVCC hereby agrees that it may be served with process in Delaware in any
suit or proceeding for enforcement of any obligation (a) of AGI or (b) of HVCC
arising from this merger, and hereby irrevocably appoints the Delaware
Secretary of State as agent to accept service of process in any such suit or
proceeding. The Delaware Secretary of State shall mail a copy of such process
to HVCC at the following address:
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
SECTION TWO
PRINCIPAL OFFICE
The principal office of HVCC, at the address set forth in Section One
hereof, shall remain the principal office of the corporation following the
merger.
SECTION THREE
ARTICLES OF INCORPORATION OF HVCC
The Articles of Incorporation of HVCC shall continue to be its Articles of
Incorporation following the effective date of the merger subject to the
following amendment:
Article IV of the Articles of Incorporation shall be deleted in its
entirety and the following shall be inserted in its place and stead:
IV.
The aggregate number of common shares all of the same class which the
corporation shall have the authority to issue is twenty million
(20,000,000).
SECTION FOUR
BYLAWS
The present bylaws of HVCC, insofar as not inconsistent with this
Agreement of Merger, shall be the bylaws of the corporation following the
merger until altered, amended, or repealed as therein provided.
SECTION FIVE
DIRECTORS AND OFFICERS
The directors and officers of HVCC on the effective date of the merger (as
set forth in Section Eight hereof) shall continue as
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the directors of officers of HVCC for the full unexpired terms of their offices
or until their successors have been elected or appointed and qualified.
SECTION SIX
SHARES OF AGI
All authorized shares of AGI stock shall be cancelled pursuant to the
Order. AGI's creditors and other parties in interest will receive shares in
HVCC on account of their allowed claims in accordance with the provisions of
the Order, which provisions are summarized as follows:
300,000 shares of HVCC common stock will be available for pro rata
allocation among AGI's creditors and other parties in interest under
the Plan. The current shareholders of HVCC will receive 5,000,000
shares and DLS Financial Services, Inc. ("DLS") will receive 250,000
shares of common stock on account of its administrative claim. In
addition to the 300,000 shares of common stock available to AGI's
creditors and other parties in interest, such creditors and other
parties in interest will also receive a pro rata share of 100,000
Class A Warrants with an exercise price of $2.50 per share with an
expiration date of six months from the effective date, a pro rata
share of 200,000 Class B Warrants with an exercise price of $4.00 per
share with an expiration date of twelve months from the effective
date, and a pro rate share of 200,000 Class C Warrants with an
exercise price of $6.00 per share with an expiration date of 24 months
from the effective date. Total HVCC shares outstanding upon the
conclusion of the transaction will be approximately 5,550,000. In
addition to the foregoing, DLS will receive 100,000 Class A and
200,000 Class B and Class C Warrants. No odd lots of shares or
warrants and no fractional shares or fractional warrants will be
issued and all allocations of shares will be rounded up to the next
whole number.
SECTION SEVEN
EXTRAORDINARY TRANSACTIONS
Neither corporation shall, from the date hereof and until the effective
date of the merger or until the merger is abandoned (as provided for in Section
Nine hereof), engage in any activity or
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transaction other than in the ordinary course of business, except as
contemplated by this Agreement of Merger.
SECTION EIGHT
SUBMISSION TO STOCKHOLDERS; EFFECTIVE DATE
Agreement to this merger by AGI has been mandated through the balloting in
the Proceeding. Pursuant to the Order, the Court in the Proceeding has
authorized this merger. This Agreement of Merger shall be submitted to the
stockholders of HVCC in the manner provided by the General Corporation Law of
the State of Hawaii. Upon approval of HVCC stockholders, this Agreement of
Merger shall, subject to the provisions of Section Nine hereof, take effect as
the Agreement of Merger of the constituent corporations. The constituent
corporations agree that they will cause to be executed and filed and/or
recorded any document or documents prescribed by the laws of the State of
Hawaii and State of Delaware, respectively, and that they will cause to be
performed all necessary acts therein and elsewhere to effectuate the merger.
The merger will become effective on the date on which this Agreement of Merger
is filed in the office of the Secretary of State of the State of Hawaii,
together with evidence of its adoption as required by law.
SECTION NINE
ABANDONMENT OF MERGER
Anything to the contrary herein notwithstanding, if the Board of Directors
of HVCC, should determine, either before or after the meeting of the
stockholders of HVCC called to vote on the adoption or rejection of this
Agreement of Merger, that for any legal, financial, economic, or business
reason deemed sufficient by the Board it is not in the interest of HVCC, or the
stockholders of HVCC, or is otherwise inadvisable or impracticable to
consummate the merger, the Board of Directors may abandon the merger by
directing the officers of the corporation to refrain from executing or filing
this Agreement of Merger, and thereupon this Agreement shall be void and of no
effect. HVCC nor its Board shall have the right to abandon this merger
following the filing of this Agreement of Merger with the Secretary of State of
the State of Hawaii.
SECTION TEN
EXECUTION OF AGREEMENT
This Agreement of Merger may be executed in any number of counterparts,
and each such counterpart shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties by their proper corporate
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officers have executed below and have sealed with their corporate seals,
respectively, as of the date first written above.
HAWAIIAN VINTAGE CHOCOLATE
COMPANY, INC.
a Hawaii corporation
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx, President
AMERICAN GRAPHICS INDUSTRIES,
INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, President
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