EXHIBIT 10.2
AGREEMENT AND PLAN OF MERGER
between
XXXXX SERVICES, INC.
and
APPLIED NANOSCIENCE INC.
Dated as of September 1, 2005
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 1, 2005, between Xxxxx
Services, Inc., a Nevada corporation ("Parent"), and Applied Nanoscience Inc., a
Nevada corporation and a direct wholly-owned subsidiary of Parent ("Applied").
Parent and Applied are hereinafter collectively referred to as the "Constituent
Corporations."
WITNESSETH:
WHEREAS, the board of directors of Parent has determined that it is
advisable and in the best interests of the respective companies and shareholders
to enter into a business combination by means of the merger of Applied with and
into Parent (the "Merger") and has approved and adopted this Agreement and Plan
of Merger (the "Agreement");
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. MERGER AND EFFECTIVE TIME. Effective upon the filing of the articles of
merger (the "Articles of Merger"), entered into concurrently herewith, with the
Secretary of State of the State of Nevada (the "Effective Time"), Applied shall
be merged with and into Parent (the "Merger") and Parent shall be the surviving
corporation of the Merger (the "Surviving Corporation").
2. EFFECT OF MERGER. At the Effective Time, the Constituent Corporations
shall merge into the Surviving Corporation and the separate existence of the
Constituent Corporations shall cease. The effect of the Merger shall be as
provided in the Nevada Revised Statutes. Without limiting the generality of the
foregoing, all rights, powers, privileges, obligations and duties of Applied
shall become the rights, powers, privileges, obligations and duties of the
Surviving Corporation.
3. NAME OF SURVIVING CORPORATION. The name of the Surviving Corporation
shall be "Applied Nanoscience Inc."
4. GOVERNING DOCUMENTS. The Articles of Incorporation of Parent, as amended
to the extent provided in the Articles of Merger, and the Bylaws of Parent, as
in effect at the Effective Time, shall continue in full force and effect as the
Articles of Incorporation and Bylaws of the Surviving Corporation until sooner
terminated or changed as permitted by the provisions of Nevada Revised Statutes,
as amended.
5. DIRECTORS AND OFFICERS. At the Effective Time, the directors and the
officers of the Surviving Corporation shall be the incumbent directors and
officers of Parent, all of whom shall hold their directorships and officerships
until the election and qualification of their respective successors or until
their tenure is otherwise terminated in accordance with the Articles of
Incorporation or Bylaws of the Surviving Corporation.
6. CONVERSION OF SECURITIES AND CONSIDERATION. At the Effective Time, by
virtue of the Merger and in consideration therefor, and without any action on
the part of the Constituent Corporations or any stockholder thereof, (i) each
share of Applied' Common Stock shall be cancelled; and (ii) each share of
Parent's Common Stock shall remain unchanged in the hands of the holder thereof
as an outstanding share of the Surviving Corporation.
7. REPRESENTATIONS OF PARENT. Parent represents and warrants to Applied
that as of the date of this Agreement and as of the Effective Time (a) it is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada, (b) it has all requisite corporate power and authority
to enter into a perform its obligations under this Agreement and Plan of Merger
and to execute the Articles of Merger and to perform its obligations hereunder,
(c) this Agreement has been duly executed and delivered by Parent, and has been
authorized by all necessary corporate action, and constitutes the legal, valid
and binding obligations of Parent, enforceable in accordance with its terms, and
(d) the execution, delivery and performance of this Agreement does not conflict
with any provision of the Articles of Incorporation or Bylaws of Parent.
8. REPRESENTATIONS OF APPLIED. Applied represents and warrants to Parent
that as of the date of this Agreement and as of the Effective Time (a) it is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada, (b) it has all requisite corporate power and authority
to enter into and perform its obligations under this Agreement and to perform
its obligations hereunder, (c) this Agreement has been duly executed and
delivered by Applied, and has been authorized by all necessary corporate action,
and constitutes the legal, valid and binding obligations of Applied, enforceable
in accordance with its terms, and (d) the execution, delivery and performance of
this Agreement does not conflict with any provision of the Articles of
Incorporation or Bylaws of Applied.
9. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of every kind
and nature among them.
10. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other provisions of this Agreement shall nevertheless remain in full
force and effect.
11. TERMINATION AND ABANDONMENT. Prior to the Effective Time, this
Agreement may be terminated and the Merger abandoned by the Board of Directors
of Parent.
12. AMENDMENT. Prior to the Effective Time, this Agreement may be amended,
modified or supplemented by the Board of Directors of Parent.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada without giving effect to
principles of conflicts of law.
14. HEADINGS. The underlined headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Xxxxx Services, Inc.
By: /s/ XXXXXX X. XXXXX 9-2-05
_________________________
Xxxxxx X. Xxxxx
Title: President
Applied Nanoscience Inc.
By: _________________________
Xxxxxxx Xxxxxx
Title: President
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Xxxxx Services, Inc.
By: _________________________
Xxxxxx X. Xxxxx
Title: President
Applied Nanoscience Inc.
By: /s/ XXXXXXX XXXXXX
_________________________
Xxxxxxx Xxxxxx
Title: President
