EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated this 3rd day of September, 1998
(the "Agreement"), pursuant to Section 905 of the New York Business
Corporation Law, between Famous Fixins, Inc., a New York corporation ("FFI"),
and Famous Fixins Holding Company, Inc., a New York corporation ("FFHC").
WITNESSETH THAT:
WHEREAS, all of the constituent corporations desire to merge into a
single corporation;
NOW, THEREFORE, the corporations, parties to this Agreement and Plan of
Merger, in consideration of the premises and the mutual covenants, agreements
and provisions contained herein, do hereby prescribe the terms and conditions
of said merger and plan of carrying the same into effect, as follows:
FIRST: FFI, which shall be the merged corporation, shall be merged
into FFHC, which shall be the surviving corporation, pursuant to the terms of
this Agreement.
SECOND: There are 6,633,891 shares of common stock of the surviving
corporation heretofore issued or outstanding. FFI has an authorized capital
of 25,000,000 shares of common stock, par value $.001 per share ("Common
Stock"), and 4,237,039 shares of Common Stock issued and outstanding on the
date hereof. Upon filing of Certificate of Merger with respect to the merger
with the Secretary of State of New York, each share of Common Stock of FFI,
the merged corporation, issued and outstanding immediately prior to the
merger and all rights in respect thereof shall forthwith be cancelled. After
the effective date of this Agreement, any uncertificated shares of common
stock of the merged corporation registered with such corporation shall be
cancelled, and the holder of any such uncertificated but registered shares
shall be entitled to receive the number of shares of NY Common Stock of the
surviving corporation into which such uncertificated shares of stock of the
merged corporation are required to be converted as provided herein.
THIRD: Certain terms and conditions of the merger are as follows:
(a) The Certificate of Incorporation of FFHC as in effect on the
date of the merger provided for in this Agreement and Plan of Merger shall
continue in full force and effect as the Certificate of Incorporation of the
corporation surviving this merger, unless and until the same shall he amended
or modified in accordance with the provision thereof and of the Business
Corporation Law of New York, which power to amend or modify is hereby
expressly reserved. Such Certificate of Incorporation shall constitute the
Certificate of Incorporation of FFHC separate and apart from this Agreement
and Plan of Merger and may be separately certified as the Certificate of
Incorporation of FFHC.
(b) The Bylaws of the surviving corporation as they exist on the
effective date of this merger shall be and remain the Bylaws of the surviving
corporation until the same shall be altered, amended or repealed as therein
provided.
(c) The directors and officers of the surviving corporation
shall continue in office as directors and officers of the surviving
corporation until the next annual meeting of stockholders and until their
successors shall have been elected and qualify.
(d) This merger shall become effective upon filing of the
Certificate of Merger of FFHC and the Articles of Merger of FFI in the forms
of Exhibits A and B annexed hereto, respectively, with the Secretary of State
of New York and the Secretary of State of Nevada.
(e) Upon the effectiveness of the merger as provided herein, all
of the property, rights, privileges, franchises, patents, trademarks,
licenses, registrations and other assets of every kind and description of the
merged corporations shall be transferred to, vested in, and devolve upon the
surviving corporation without further act or deed, and all property, rights,
and every other interest of the surviving corporation and the merged
corporations shall be as effectively the property of the surviving
corporation as they were of the surviving corporation and the merged
corporation, respectively.
(f) Prior to the effectiveness of the merger, the merged
corporations hereby agree from time to time, as and when requested by the
surviving corporation or by its successors or assigns, to execute and deliver
or cause to be executed and delivered all such documents, deeds and
instruments and to 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 confirm to the surviving corporation title to and possession of any
property of the merged corporations acquired or to be acquired by reason of
or as a result of the merger herein provided for and otherwise to carry out
the intent and purposes hereof, and the proper officers and directors of the
merged corporations are fully authorized in the name of the merged
corporations or otherwise to take any and all such action; the proper
officers and directors of the surviving corporation are fully authorized, in
the name of the merged corporations or otherwise, following the effectiveness
of the merger, to execute and deliver or cause to be executed and delivered
all such documents, deeds and instruments and to take or cause to be taken
such further or other actions as the surviving corporation may deem necessary
or desirable in order to vest in and confirm to the surviving corporation
title to and possession of any property of the merged corporations acquired
or to be acquired by reason of or as a result of the merger herein provided
for and otherwise to carry out the intent and purposes hereof.
FOURTH: (a) Directors. The names and post office addresses of the
directors of FFHC, who shall be four in number and who shall hold office from
the effective date until the next annual meeting of stockholders of FFHC and
until their successors shall be duly elected and qualify, are as follows:
Name Post Office Address
-------------------------- ------------------------------------
Xxxxx Xxxxx 000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxxxxx 000 Xxxxxx Xxxx #0
Xxxxxxxxx, Xxx Xxxxxx 00000
Xxxx Xxxxx, Director 000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxxx, Director 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, Xxx Xxxxxx 00000
(b) Officers. The names and post office addresses of the
officers of FFHC who shall be three in number and who shall hold office from
the effective date until their successors shall be duly elected and qualify
or until they shall resign or be removed from office, are as follows:
Name Offices Post Office Address
-------------- ---------------- -----------------------
Xxxxx Xxxxx President 000 X. 00xx Xx.
Xxxxxxxxx Xxx Xxxx, XX 00000
Xxxxx Xxxxxx Vice President 000 Xxxxxx Xxxx #0
Xxxxxxxxx Xxxxxxxxx, XX 00000
(c) Vacancies. If, upon the effective date, a vacancy exists
still on the Board of Directors or in any of the offices of FFHC as the same
are specified above, such vacancy shall thereafter be filled in the manner
provided by law and the Bylaws of FFHC.
FIFTH: Anything contained herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned by the Board
of Directors of any constituent corporation at any time prior to the date of
filing of a Certificate of Merger with respect to the merger with the
Secretary of State of New York, provided that an amendment made subsequent to
the adoption of this Agreement and Plan of Merger by the stockholders of any
constituent corporation shall not (a) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange
for or on conversion of all or any of the shares of any class or series
thereof of such constituent corporation, (b) alter or change any term of the
Certificate of Incorporation of the surviving corporation to be effected by
the merger, or (c) alter or change any of the terms and conditions of this
Agreement and Plan of Merger if such alteration or change would adversely
affect the holders of any class of such constituent corporation or any series
of any such class.
IN WITNESS WHEREOF, the parties to this Agreement and Plan of Merger,
pursuant to the approval and authority duly given by resolutions adopted by
their respective Boards of Directors and by their shareholders have caused
this Agreement and Plan of Merger to be executed by the President of each
party hereto as the respective act, deed and 'agreement of each of said
corporations, on this 3rd day of September, 1998.
FAMOUS FIXINS, INC.
(a New York corporation)
By: /s/ Xxxxx Xxxxx
----------------------------
Xxxxx Xxxxx,
President
By: /s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx,
Secretary
FAMOUS FIXINS HOLDING COMPANY, INC.
(a New York corporation)
By: /s/ Xxxxx Xxxxx
----------------------------
Xxxxx Xxxxx,
President
By: /s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx,
Secretary
