AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Agreement") is
entered as of November 14, 2000 by and between Infinex
Ventures, Inc., a Nevada corporation (the "Buyer"), and
Dollar Maker Inc., a Nevada corporation (the "Target"). The
Buyer and the Target are referred to collectively herein as
the "Parties."
RECITAL
This Agreement contemplates a merger of the Target with and
into the Buyer. The Target Stockholders will receive Ten
Thousand (10,000) restricted shares of Buyer's common stock
and cash in the aggregate amount of Forty Five Thousand
Dollars ($45,000) in exchange for all of the capital stock
in the Target. The Parties expect that the Merger will
further certain of their business objectives.
NOW, THEREFORE, in consideration of the premises and the
mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained,
the Parties agree as follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Rule 501
of the regulations promulgated under the Securities Act.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
"Certificate of Merger" has the meaning set forth in Section
2.3 below.
"Buyer" has the meaning set forth in the preface above.
"Closing" has the meaning set forth in Section 2.2 below.
"Closing Date" has the meaning set forth in Section 2.2
below.
"Effective Time" has the meaning set forth in Section 2.5.1
below.
"Merger" has the meaning set forth in Section 2.1 below.
"Most Recent Fiscal Year End" has the meaning set forth in
Section 3.6 below.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation,
an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental
entity (or any department, agency, or political subdivision
thereof).
"Public Reports" has the meaning set forth in Section 3.5
below.
"Requisite Target Stockholder Approval" means the written
consent of the majority of the holders of Target Shares in
favor of this Agreement and the Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended. "Security Interest" means any mortgage,
pledge, lien, encumbrance, charge, or other security
interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for taxes not yet due and payable
or for taxes that the taxpayer is contesting in good faith
through appropriate proceedings, (c) purchase money liens
and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary
Course of Business and not incurred in connection with the
borrowing of money.
"Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority
of the common stock or has the power to vote or direct the
voting of sufficient securities to elect a majority of the
directors.
"Surviving Corporation" has the meaning set forth in Section
2.1 below.
"Target" has the meaning set forth in the preface above.
"Target Share" means any share of the Common Stock of the
Target.
"Target Stockholder" means any Person who or which holds any
Target Shares.
2. Basic Transaction.
2.1 The Merger. On and subject to the terms and conditions
of this Agreement, the Target will merge with and into the
Buyer (the "Merger") at the Effective Time. The Buyer shall
be the corporation surviving the Merger (the "Surviving
Corporation").
2.2 The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take
place at the offices of Xxxxxxx X. Xxxxxx & Associates, in
Freehold, New Jersey, commencing at 9:00 a.m. local time on
the first business day following the satisfaction or waiver
of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties
will take at the Closing itself) or such other date as the
Parties may mutually determine (the "Closing Date").
2.3 Actions at the Closing. At the Closing, (i) the Target
will deliver to the Buyer the various certificates,
instruments, and documents referred to in Section 6.1, (ii)
the Buyer will deliver to the Target the various
certificates, instruments, and documents referred to in
Section 6.2, (iii) the Buyer and the Target will file with
the Secretary of State of the State of Nevada, a Certificate
of Merger (the "Certificate of Merger"), and (iv) the Buyer
will deliver to the Seller the certificates representing the
shares and the sum of Forty Five Thousand Dollars ($45,000)
to be distributed to the Target Shareholders.
2.4 Effect of Merger.
2.4.1 General. The Merger shall become effective at the time
(the "Effective Time") the Buyer and the Target sign a
Certificate of Merger and file the Certificate of Merger
with the Secretary of State of the State of Nevada. The
Merger shall have the effect set forth in the laws of the
State of Nevada. The Surviving Corporation may, at any time
after the Effective Time, take any action (including
executing and delivering any document) in the name and on
behalf of either the Buyer or the Target in order to carry
out and effectuate the transactions contemplated by this
Agreement.
2.4.2 Articles of Incorporation. The Articles of
Incorporation of the Buyer in effect at and as of the
Effective Time will remain the Articles of Incorporation of
the Surviving Corporation without any modification or
amendment in the Merger.
2.4.3 Bylaws. The Bylaws of the Buyer in effect at and as of
the Effective Time will remain the Bylaws of the Surviving
Corporation without any modification or amendment in the
Merger.
2.4.4 Directors and Officers. The directors and officers of
the Buyer in office at and as of the Effective Time will
remain the directors and officers of the Surviving
Corporation (retaining their respective positions and terms
of office).
2.4.5 Cancellation of Target Shares. At and as of the
Effective Time, each Target Share shall be canceled.
2.4.6 Buyer Shares. Each Buyer Share issued and outstanding
at and as of the Effective Time will remain issued and
outstanding.
2.5 Procedure for Payment.
2.5.1 Immediately after the Effective Time, the Buyer will
furnish to Xxxxxxx X. Xxxxxx and Associates, counsel for
Buyer, as Exchange Agent, the sum of Forty Five Thousand
Dollars ($45,000). Each shareholder of Target, shall receive
the amount of 138/10,000 Dollars ($0.0138) per share.
2.5.2 Immediately after the Effective Time, the Buyer will
issue a total of Ten Thousand (10,000) shares of restricted
common stock of Buyer to the shareholders of the Target as
follows: Every 325 shares of Target shall receive 1 share of
Buyer.
2.5.3 The Exchange Agent shall deduct all of its charges and
expenses from the proceeds before distributing to the Target
Shareholders.
3. Representations and Warranties of the Target. The Target
and each of its shareholders represent and warrant to the
Buyer that the statements contained in this Section 3 are
correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this
Section 3).
3.1 Organization, Qualification, and Corporate Power. Each
of the Target and its Subsidiaries, if any, is a
corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its
incorporation. Each of the Target and its Subsidiaries, if
any, is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such
qualification is required. Each of the Target and its
Subsidiaries, if any, has full corporate power and authority
to carry on the businesses in which it is engaged and to own
and use the properties owned and used by it.
3.2 Capitalization. The entire authorized capital stock of
the Target consists of no shares of Preferred Stock and
25,000,000 shares of Common Stock, of which 3,250,000 of the
Target Shares are issued and outstanding. All of the issued
and outstanding Target Shares have been duly authorized and
are validly issued, fully paid, and non-assessable. There
are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require
the Target to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no
outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to the
Target.
3.3 Authorization of Transaction. The Target has full power
and authority (including full corporate power and authority)
to execute and deliver this Agreement and to perform its
obligations hereunder; provided, however, that the Target
cannot consummate the Merger unless and until it receives
the Requisite Target Stockholder Approval. This Agreement
constitutes the valid and legally binding obligation of the
Target, enforceable in accordance with its terms and
conditions.
3.4 Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which any of
the Target and its Subsidiaries, if any, is subject or any
provision of the charter or bylaws of any of the Target and
its Subsidiaries, if any or (ii) conflict with, result in a
breach of, constitute a default under, result in the
acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license,
instrument or other arrangement to which any of the Target
and its Subsidiaries, if any, is a party or by which it is
bound or to which any of its assets is subject (or result in
the imposition of any Security Interest upon any of its
assets). Other than in connection with the provisions of
Nevada law, none of the Target and its Subsidiaries, if any,
needs to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate
the transactions contemplated by this Agreement.
3.5 Filings with the SEC. The Target has made all filings
with the SEC that it has been required to make under the
Securities Act and the Securities Exchange Act (collectively
the "Public Reports") and has received from the SEC a letter
to the effect that the SEC will have no further comment on
Target's Form 10-SB. Each of the Public Reports has complied
with the Securities Act and the Securities Exchange Act in
all material respects. None of the Public Reports, as of
their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements made therein, in light of
the circumstances under which they were made, not
misleading. The Target has delivered to the Buyer a correct
and complete copy of each Public Report (together with all
exhibits and schedules thereto and as amended to date).
3.6 Financial Statements. The Target has filed audited
financial statements for the fiscal year ended December 31,
1999 ("Most Recent Fiscal Year End") in its registration
statement on Form 10-SB filed February 10, 2000. The
financial statements included in or incorporated by
reference into these Public Reports (including the related
notes and schedules) have been prepared in accordance with
GAAP applied on a consistent basis throughout the periods
covered thereby, and present fairly the financial condition
of the Target and its Subsidiaries, if any, as of the
indicated dates and the results of operations of the Target
and its Subsidiaries for the indicated periods; provided,
however, that the interim statements are subject to normal
year-end adjustments.
3.7 Events Subsequent to Most Recent Fiscal Quarter End.
Since the Most Recent Fiscal Year End, there has not been
any material adverse change in the business, financial
condition, operations, results of operations, or future
prospects of the Target and its Subsidiaries taken as a
whole.
3.8 Undisclosed Liabilities. None of the Target and its
Subsidiaries, if any, has any liability (whether known or
unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated
or unliquidated, and whether due or to become due),
including any liability for taxes, except for (i)
liabilities set forth on the face of the balance sheet dated
as of the Most Recent Fiscal Year End (rather than in any
notes thereto) and (ii) liabilities which have arisen after
the Most Recent Fiscal Year End in the Ordinary Course of
Business (none of which results from, arises out of, relates
to, is in the nature of, or was caused by any breach of
contract, breach of warranty, tort, infringement, or
violation of law).
3.9 Finders Fees. None of the Target and its Subsidiaries,
if any, has any liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement.
3.10 Affiliate and Accredited Investor Status. All
shareholders of Target are Affiliates of Target and are
Accredited Investors.
4. Representations and Warranties of the Buyer. The Buyer
represents and warrants to the Target that the statements
contained in this Section 4 are correct and complete as of
the date 5 of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of
this Agreement throughout this Section 4).
4.1 Organization. The Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
4.2 Authorization of Transaction. The Buyer has full power
and authority (including full corporate power and authority)
to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid
and legally binding obligation of the Buyer, enforceable in
accordance with its terms and conditions.
4.3 Noncontravention. To the knowledge of any director or
officer of the Buyer, neither the execution and the delivery
of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Buyer
is subject or any provision of the charter or bylaws of the
Buyer or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other
arrangement to which the Buyer is a party or by which it is
bound or to which any of its assets is subject except where
the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, or failure to give
notice would not have a material adverse effect on the
ability of the Parties to consummate the transactions
contemplated by this Agreement. To the knowledge of any
director or officer of the Buyer, and other than in
connection with the provisions of Nevada law, the Buyer does
not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties
to consummate the transactions contemplated by this
Agreement, except where the failure to give notice, to file,
or to obtain any authorization, consent, or approval would
not have a material adverse effect on the ability of the
Parties to consummate the transactions contemplated by this
Agreement.
5. Covenants. The Parties agree as follows with respect to
the period from and after the execution of this Agreement.
5.1 General. Each of the Parties will use its best efforts
to take all action and to do all things necessary, proper,
or advisable in order to consummate and make effective the
transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set
forth in Section 6 below).
5.2 Notices and Consents. The Target will give any notices
(and will cause each of its Subsidiaries, if any, to give
any notices) to third parties, and will use its best efforts
to obtain any third party consents, that the Buyer
reasonably may request in connection with the matters
referred to in Section 3.4 above.
5.3 Regulatory Matters and Approvals. Each of the Parties
will give any notices to, make any filings with, and use its
reasonable best efforts to obtain any authorizations,
consents, and approvals of governments and governmental
agencies in connection with the matters referred to in
Section 3.4 and Section 4.3 above.
5.4 Nevada Law. The Target will obtain the unanimous written
consent of its stockholders for the adoption of this
Agreement and the approval of the Merger in accordance with
Nevada Law.
6. Conditions to Obligation to Close.
6.1 Conditions to Obligation of the Buyer. The obligation of
the Buyer to consummate the transactions to be performed by
it in connection with the Closing is subject to satisfaction
of the following conditions:
6.1.1 this Agreement and the Merger shall have been approved
by the unanimous written consent of the shareholders of
Target;
6.1.2 Target and its Subsidiaries shall have procured all of
the third party consents specified in Section 5.2 above;
6.1.3 the representations and warranties set forth in
Section 3 above shall be true and correct in all material
respects at and as of the Closing Date;
6.1.4 the Target shall have performed and complied with all
of its covenants hereunder in all material respects through
the Closing;
6.1.5 no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any
of the transactions contemplated by this Agreement to be
rescinded following consummation, (C) affect adversely the
right of the Surviving Corporation to own the former assets,
to operate the former businesses, and to control the former
Subsidiaries of the Target, or (D) affect adversely the
right of any of the former Subsidiaries of the Target to own
its assets and to operate its businesses (and no such
injunction, judgment, order, decree, ruling, or charge shall
be in effect);
6.1.6 the Target shall have delivered to the Buyer a
certificate to the effect that each of the conditions
specified above in Sections 6.1.1 through 6.1.5 is satisfied
in all respects;
6.1.7 the Buyer shall have received from counsel to the
Target an opinion in form and substance satisfactory
addressed to the Buyer, and dated as of the Closing Date;
and
6.1.8 all actions to be taken by the Target in connection
with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance
to the Buyer. The Buyer may waive any condition specified in
this Section 6.1 if it executes a writing so stating at or
prior to the Closing.
6.2 Conditions to Obligation of the Target. The obligation
of the Target to consummate the transactions to be performed
by it in connection with the Closing is subject to
satisfaction of the following conditions:
6.2.1 the representations and warranties set forth in
Section 4 above shall be true and correct in all material
respects at and as of the Closing Date;
6.2.2 the Buyer shall have performed and complied with all
of its covenants hereunder in all material respects through
the Closing;
6.2.3 all actions to be taken by the Buyer in connection
with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be satisfactory in form and substance to the
Target; The Target may waive any condition specified in this
Section 6.2 if it executes a writing so stating at or prior
to the Closing.
7. Termination.
7.1 Termination of Agreement. Either of the Parties may
terminate this Agreement with the prior authorization of its
board of directors (whether before or after stockholder
approval) as provided below:
7.1.1 the Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time;
7.1.2 the Buyer may terminate this Agreement by giving
written notice to the Target at any time prior to the
Effective Time (A) in the event the Target has breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, the Buyer has
notified the Target of the breach, and the breach has
continued without cure for a period of 30 days after the
notice of breach or (B) if the Closing shall not have
occurred on or before November 15, 2000, by reason of the
failure of any condition precedent under Section 6.1 hereof
(unless the failure results primarily from the Buyer
breaching any representation, warranty, or covenant
contained in this Agreement);
7.1.3 the Target may terminate this Agreement by giving
written notice to the Buyer at any time prior to the
Effective Time (A) in the event the Buyer has breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, the Target has
notified the Buyer of the breach, and the breach has
continued without cure for a period of 30 days after the
notice of breach or (B) if the Closing shall not have
occurred on or before November 15, 2000, by reason of the
failure of any condition precedent under Section 6.2 hereof
(unless the failure results primarily from the Target
breaching any representation, warranty, or covenant
contained in this Agreement);
7.2 Effect of Termination. If any Party terminates this
Agreement pursuant to Section 7.1 above, all rights and
obligations of the Parties hereunder shall terminate without
any liability of any Party to any other Party (except for
any liability of any Party then in breach); provided
however, that Target shall not be required to refund the
Deposit for any reason.
8. Miscellaneous.
8.1 Survival. None of the representations, warranties, and
covenants of the Parties will survive the Effective Time.
8.2 Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire
agreement between the Parties and supersedes any prior
understandings, agreements, or representations by or between
the Parties, written or oral, to the extent they related in
any way to the subject matter hereof.
8.3 Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted
assigns. No Party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the
prior written approval of the other Party.
8.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original
but all of which together will constitute one and the same
instrument.
8.5 Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
8.6 Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any
notice, request, demand, claim, or other communication
hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified
mail, return receipt requested, postage prepaid, and
addressed to the intended recipient at the last address give
to the other party. Any Party may send any notice, request,
demand, claim, or other communication hereunder to the
intended recipient at the last address give to the other
party using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it actually
is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims, and
other 9 communications hereunder are to be delivered by
giving the other Party notice in the manner herein set
forth.
8.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State
of Nevada without giving effect to any choice or conflict of
law provision or rule (whether of the State of Nevada or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Nevada.
8.8 Amendments and Waivers. The Parties may mutually amend
any provision of this Agreement at any time prior to the
Effective Time with the prior authorization of their
respective boards of directors; provided, however, that any
amendment effected subsequent to stockholder approval will
be subject to the restrictions contained in the laws of the
State of Delaware. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by both of the Parties. No waiver by any Party of
any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
8.9 Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
8.10 Expenses. Each of the Parties will bear its own costs
and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions
contemplated hereby.
8.11 Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event
an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by
the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context
otherwise requires.
IN WITNESS WHEREOF, the Parties hereto have executed
this Agreement on as of the date first above written.
BUYER:
INFINEX VENTURES, INC.
BY /s/ Xxxxx Xxxxxx
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TARGET:
DOLLAR MAKER INC.
By: /s/ Xxxx Xxxxx
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