AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is entered into by and between Rocky
Mountain Fudge Company, Inc., a Utah corporation (herein sometimes called the
"Utah Corporation"), and Rocky Mountain Fudge Company, Inc., a Nevada
corporation (herein sometimes called the "Nevada Corporation").
W I T N E S S E T H :
WHEREAS, the Utah Corporation was incorporated by the filing of a
Certificate of Incorporation in the office of the Secretary of State of the
State of Utah on January 4, 1990; the total number of shares which it is
authorized to issue is 50,000,000 shares of common stock, $0.001 par value per
share ("Common Stock"), and the total number of shares which are issued and
outstanding is 6,250,000 shares of Common Stock;
WHEREAS, the Nevada Corporation was incorporated on September 12, 2005
under the provisions of the Nevada Revised Statutes; the total number of shares
which it is authorized to issue is 50,000,000 shares of Common Stock, $0.001 par
value per share, and no shares have been issued;
WHEREAS, the respective laws of the States of Nevada and Utah permit the
merger of said corporations (herein sometimes called the "constituent
corporations")into a single corporation; and
WHEREAS, it is deemed advisable by the Board of Directors of each of the
constituent corporations that the Utah Corporation be merged with and into the
Nevada Corporation;
NOW, THEREFORE, it is agreed as follows:
1. The Utah Corporation as of the Effective Date (as defined herein) shall
be merged, pursuant to Section 92A.100 of the Nevada Revised Statutes, with and
into the Nevada Corporation (the "Merger"). The Nevada Corporation shall be the
surviving corporation and it shall continue and shall be deemed to continue for
all purposes whatsoever after the merger with and into itself of the Utah
Corporation. The sole purpose of the merger is to change the corporate domicile
of the Utah Corporation from the State of Utah to the State of Nevada
2. The Merger shall become effective when this Agreement has been adopted
by the Utah Corporation and by the Nevada Corporation and appropriate
documentation has been prepared and filed in accordance with the respective laws
of the States of Utah and Nevada. For operational, accounting and bookkeeping
purposes, the time when the Merger shall become effective is referred to herein
as the "Effective Date" which shall be the date fixed in accordance with the
laws of and the documentation filed with the state of incorporation of the
surviving corporation.
3. After the Effective Date, the surviving corporation shall be governed
by the laws of the State of Nevada and its name shall continue to be Rocky
Mountain Fudge Company, Inc. The present Certificate of Incorporation of the
Nevada Corporation shall continue to be the Certificate of Incorporation of the
surviving corporation. The present By-Laws of the Nevada Corporation shall be
and remain the By-Laws of the surviving corporation. The directors and officers
of the Utah Corporation immediately prior to the Effective Date shall be the
directors of the surviving corporation upon the Effective Date.
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4. Each share of Common Stock of the Utah Corporation shall be converted
into one share of Common Stock of the surviving corporation. Each warrant,
option, right or convertible security which entitles the holder to purchase or
convert into a share of Common Stock of the Utah Corporation shall be converted
into a warrant, option, right or convertible security to purchase or convert
into one share of Common Stock of the surviving corporation, taking into
consideration the effect of the five shares for one share forward stock split
approved by shareholders of the Utah Corporation on September 27, 2005.
5. Upon the Effective Date, the outstanding certificates for shares of the
Utah Corporation's Common Stock will, until replaced by the surviving
corporation, represent the same number of shares of Common Stock of the
surviving corporation, taking into consideration the effect of the five shares
for one share forward stock split approved by shareholders of the Utah
Corporation on September 27, 2005.
6. This Agreement may be terminated and abandoned by action of the Board
of Directors of the Utah Corporation or the Nevada Corporation at any time prior
to the Effective Date, for any reason whatsoever.
7. This Agreement, upon being authorized, adopted, approved, signed and
acknowledged by each of the constituent corporations in accordance with the laws
under which it is formed, and filed in the office of the Secretary of State of
the State of Nevada, shall take effect and shall thereupon be deemed and taken
to be the Agreement and act of merger and consolidation of the constituent
corporations; and the organization and separate corporate existence of the Utah
Corporation, except in so far as it may be continued by statute, shall cease.
The point of time at which the constituent corporations shall become a single
corporation shall be the Effective Date.
8. Upon the Effective Date, all and singular rights, capacity, privileges,
powers, franchises and authority of each of the constituent corporations, and
all property, real, personal and mixed, and all debts, obligations and
liabilities due to each of the constituent corporations on whatever account as
well as for subscriptions for shares as for all other things, belonging to each
of the constituent corporations shall be vested in the surviving corporation;
and all such property, rights, capacity, privileges, powers, franchises,
authority and immunities and all and every other interest shall be thereafter as
fully and effectually the property of the surviving corporation as though they
were the property of the several and respective constituent corporations, and
shall not revert or be in any way impaired by reason of the Merger; provided
however, that all rights of the creditors of the constituent corporations shall
be preserved unimpaired and all debts, liabilities (including liability, if any,
to dissenting shareholders) and duties of the respective constituent
corporations shall thenceforth be attached to the surviving corporation and may
be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by the surviving corporation.
9. Each constituent corporation agrees that from time to time as when it
shall be requested by the surviving corporation or by its successors or assigns,
it will execute and deliver or cause to be executed and delivered all such other
instruments and will take or cause to be taken such further or other action as
the surviving corporation may deem necessary or desirable in order to vest in
and to confirm to the surviving corporation title to all of the property,
capacity, privileges, powers, franchises, authority, and immunities of the
constituent corporation and otherwise to carry out the intent and purposes of
this Agreement.
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10. The surviving corporation agrees that it may be served with process in
the State of Nevada or in the State of Utah, in any proceeding for enforcement
of any obligation of the Utah Corporation as well as for enforcement of any
obligation of the corporation arising from the Merger, including any suit or
other proceeding to enforce the right of any stockholder as determined in any
appraisal proceeding pursuant to Section 16-10a-1302 of the Utah Revised
Business Corporation Act and shall irrevocably appoint the Secretary of State of
the State of Nevada as its agent in Nevada and the Secretary of State of the
State of Utah as its agent in Utah to accept service of process in any such suit
or other proceeding. The address to which a copy of such process shall be mailed
by the Secretary of State of the State of Nevada shall be c/o R/A's of America,
0000 XX Xxxxxxx 000, Xxxxxxxxxxxx, Xxxxxx 0000-00000, and by the Secretary of
State of the State of Utah shall be Xxxxxx Xxxxxxx, 0000 Xxxxxxx Xxxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000.
11. The surviving corporation hereby reserves the right to amend, alter,
change or repeal any provisions contained in any of the articles of this
Agreement or as the same may hereafter be amended, in the manner now or
hereafter provided by the laws of the State of Nevada and all rights of the
stockholders of the surviving corporation are granted subject to this
reservation.
IN WITNESS WHEREOF, the undersigned have signed this Agreement this 27th
day of September 2005.
Rocky Mountain Fudge Company, Inc. Rocky Mountain Fudge Company, Inc.
a Nevada corporation a Utah Corporation
By: By:
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Xxxxxx Xxxxxxx, President Xxxxxx Xxxxxxx, President
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