AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
(this
“Amendment’) by and among NANOSENSORS,
INC., a
Nevada
corporation (“Buyer”), CUCHULAINN
ACQUISITION, INC.,
a
Panamanian corporation and wholly-owned subsidiary of Buyer (“Merger Sub”) and
CUCHULAINN
HOLDINGS INC., a
Panamanian corporation (the “Seller”). Buyer, Merger Sub and Seller are
sometimes referred to individually as a “Party” and collectively herein as the
“Parties”.
WHEREAS,
Buyer,
Merger Sub and Seller are Parties to that certain Agreement and Plan of Merger,
dated as of November 27, 2007 (the “Merger Agreement”);
WHEREAS,
pursuant
to Section 10(i) of the Merger Agreement, the parties desire to amend the Merger
Agreement as provided in this Amendment; and
WHEREAS,
the
respective Boards of Directors of Buyer, Merger Sub and Seller have approved
this Amendment and the other transactions contemplated hereby,
NOW,
THEREFORE, in
consideration of the foregoing and the mutual agreements contained in this
Amendment, and for other good and valuable consideration, the receipt and
sufficient of which are hereby acknowledged, intending to be legally bound,
the
parties hereto agree as follows:
Section
1. Amendment
to Section 2(b). Closing.
Section
2(b) of the Merger Agreement is hereby amended by deleting “December 15, 2007”
and replacing it with “January 31, 2008”. The Parties agree that no default on
the part of either party shall be deemed to have occurred by reason of the
failure of the Closing to have occurred on or prior to the date
hereof.
Section
2. Amendment
to Section 2(g)(i). Effect on Seller Common Stock. (i) Seller Common Stock;
Warrants to Purchase Seller Common Stock.
Section
2(g)(i) of the Merger Agreement is hereby amended by (a) deleting “168,729.068”
and replacing it with “199,604.068”; and (b) adding the following sentence at
the end of the first paragraph:
“At
the
Closing, Buyer and each Selling Stockholder will execute a registration rights
agreement, of like tenor to the registration rights agreement previously
executed by each Selling Stockholder and Seller, as further provided in Section
6(b), in connection with the issuance of shares of Buyer Preferred Stock and
Buyer Warrants.
Section
3. Amendment
to Section 4(d). Capitalization.
Section
4(d) of the Merger Agreement is hereby amended by deleting “36,621,348” and
replacing it with “49,149,842” with reference to the number of issued and
outstanding Buyer Options, and by deleting “240,831,660” and replacing it with
“241,081,660” with reference to the number of issued and outstanding Buyer
Warrants.
Section
4. Amendment
to Section 5(f). Exclusivity.
Section
5(f) of the Merger Agreement is hereby amended by deleting “December 15, 2007”
and replacing it with “January 31, 2008.”
Section
5. Amendment
to Section 8(a)(ii)(B) and (iii)(B). Termination of Merger
Agreement.
Section
8(a)(ii)(B) of the Merger Agreement is hereby amended by deleting “December 15,
2007” and replacing it with “January 31, 2008.” Section 8(a)(iii)(B) of the
Merger Agreement is hereby amended by deleting “December 15, 2007” and replacing
it with “January 31, 2008.”
Section
6. Amendment
to Exhibit A.
Exhibit
A to the Merger Agreement is hereby amended in its entirety by deleting Exhibit
A previously attached thereto and replacing it with Exhibit A attached
hereto.
Section
7. General
Provisions.
(a) Modification;
Full Force and Effect.
Except
as expressly modified and superseded by this Amendment, the terms,
representations, warranties, covenants and other provisions of the Merger
Agreement are and shall continue to be in full force and effect in accordance
with their respective terms.
(b) References
to the Merger Agreement.
After
the date hereof, all references to “this Agreement,” “the transactions
contemplated by this Agreement,” “the Merger Agreement” and phrases of similar
import, shall refer to the Merger Agreement as amended by this Amendment (it
being understood that all references to the date hereof or the date of this
Agreement shall continue to refer to November 27, 2007).
(c) Definitions.
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Merger Agreement.
[Remainder
of Page Intentionally Left Blank}
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be signed by their respective
officers thereunto duly authorized, on this 16th
day of
January 2008.
| NANOSENSORS, INC., as the Buyer | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
|
Xxxxxx Xxxxx |
||
| Interim Chief Executive Officer | ||
|
CUCHULAINN
HOLDINGS, INC.,
as the Seller
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxx | |
|
Xxxx Xxxxxx |
||
| President | ||
| CUCHULAINN ACQUISITION INC., as the Merger Sub | ||
| |
|
|
| By: | /s/ Xxxxxxxxx Xxxxxxx | |
|
Xxxxxxxxx Xxxxxxx |
||
| President | ||
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