Exhibit 10.2
Agreement and Plan of Merger
By and Between
ANTs software inc. (a Delaware Corporation)
And
ANTs xxxxxxxx.xxx (a Nevada Corporation)
This Agreement and Plan of Merger is made on this 8th day of December
2000, between ANTs xxxxxxxx.xxx, a Nevada corporation, (hereinafter called the
"Nevada Company"), and ANTs software inc., a Delaware corporation which has
recently been formed for the purpose of this merger the principal purpose of
which is to change the state of incorporation of the Nevada Company,
(hereinafter called the "Delaware Company").
WHEREAS, the Nevada Company has an authorized capital stock consisting of
Twenty Million (20,000,000) shares of common stock, being a single class,
without series, $0.001 par value per share, of which 12,988,099 shares have been
duly issued, fully paid and are now outstanding on the books of the corporation
as of the date of this agreement (pre-merger); and
WHEREAS, the Delaware Company has an authorized capital stock consisting
of One Hundred Million (100,000,000) shares of common stock, being a single
class, without series, $0.0001 par value per share, of which one (1) share has
been duly issued, fully paid and is now outstanding as of the date of this
agreement; and
WHEREAS, the Board of Directors of the Nevada Company and the Delaware
Company, respectively, deem it advisable and generally to the advantage and
welfare of the parties to this agreement and their respective shareholders, that
the Nevada Company merge with and into the Delaware Company pursuant to the
provisions of Sections 92A.005 et seq. of Nevada Revised Statutes and Sections
251 et seq. of the General Corporation Law of the State of Delaware; and
WHEREAS, pursuant to the 2000 Annual Meeting of Shareholders of the Nevada
Company held on the 12th day of September 2000, representing a majority of
common shares of record of the Nevada Company there being Twelve Million Seven
Hundred Fifty Six Thousand One Hundred Ninety Seven (12,756,197) shares issued
and outstanding entitled to vote at such meeting (pre-merger), a majority of
shareholders of record voted either by proxy or in person, Seven Million One
Hundred Eighty Six Thousand Seven Hundred Five (7,186,705) shares voted FOR and
One Hundred Eight Thousand Forty Seven (108,047) shares voted AGAINST the change
of domicile of the Nevada Company; and
WHEREAS, the Nevada Company, by approval of a majority of its shareholders
and Directors, and the Delaware Company by approval of its sole shareholder and
sole Director, do agree to a merger of the two corporations upon the following
terms and conditions.
NOW THEREFORE, in consideration of the premises and of the mutual
agreement herein contained and of the mutual benefits provided, it is agreed by
and between the parties hereto as follows:
PLAN OF MERGER
1. Preliminary Matters
A. The registered office of the Nevada Company in the State of Nevada is
located at 000 Xxxx Xxxxx Xxxx, Xxxx, Xxxxxx 00000, and J. Xxxxxxx Xxxxx is the
registered agent of the Nevada Company upon whom service of process for the
Nevada Company may be received within the State of Nevada.
B. The registered office of the Delaware Company in the State of Delaware
is located at 000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000, County of Kent,
and National Corporate Research, Ltd. is the registered agent of the Delaware
Company upon which service of process for the Delaware Company may be received
within the State of Delaware.
C. Hereafter, the Nevada Company does appoint the Nevada Secretary of
State as the Registered Agent of the Nevada Company upon whom service of process
may be received on behalf of the Nevada Company within the State of Nevada, and
any notification of procedure shall hereafter be forwarded by the Nevada
Secretary of State to the principal office and place of business of the Delaware
Company at 000 Xxxxxx Xxxx, Xxxxx X, Xxxxxxxxxx, XX 00000.
D. A copy of this Agreement and Plan of Merger shall be placed permanently
on file at the principal office and place of business of the Delaware Company.
E. The surviving corporation, the Delaware Company, is to be governed by
the laws of the State of Delaware, but it shall comply with the applicable
provisions of the California Corporations Code, as amended, since it will
transact business in the State of California, and this Agreement and Plan of
Merger shall be filed with the Delaware Secretary of State and the Nevada
Secretary of State so that:
1) The Delaware Company may be served with process in any proceeding for
the enforcement of the rights of dissenting shareholders of the Nevada Company
against the Delaware Company which is the surviving corporation of this
Agreement and Plan of Merger; and
2) The Delaware Company agrees to the irrevocable appointment of the
Nevada Secretary of State as its registered agent to accept service of process
in any proceeding within the State of Nevada; and
3) The Delaware Company agrees that it will promptly pay to any dissenting
shareholders of the Nevada Company, the amount, if any, to which they shall be
entitled under
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the provisions of Sections 92A.300 et seq. of Nevada Revised Statutes with
respect to the rights of dissenting shareholders; and
4) A copy of this agreement will be provided to shareholders of the Nevada
Company at no cost.
2. Merger. The Nevada Company shall be and it hereby is merged into the
Delaware Company, upon the Effective Date defined in Section 3 hereunder.
3. Effective Date. This Agreement and Plan of Merger shall become
effective immediately upon compliance with the laws of the States of Nevada and
Delaware, the time of such effectiveness being hereinafter called the Effective
Date.
4. Surviving Corporation. The Delaware Company shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware, but the separate existence of the Nevada Company shall cease
forthwith upon the Effective Date.
5. Authorized Capital. The authorized capital stock of the Delaware
Company following the Effective Date is and shall remain One Hundred Million
(100,000,000) shares of Common Stock, being of a single class, without series
and with a $0.0001 par value per share as defined in Article IV of its Amended
and Restated Certificate of Incorporation, unless and until they shall be
changed in accordance with the laws of the State of Delaware.
6. Certificate of Incorporation. Upon the Effective Date, pursuant to
Sections 242 and 245 of the General Corporation Law of the State of Delaware,
the Amended and Restated Certificate of Incorporation of the Delaware Company
now on file with the Secretary of State of Delaware shall be amended to change
the name of the Delaware Company to "ANTs software inc". Such Amended and
Restated Certificate of Incorporation shall be the Certificate of Incorporation
of the Delaware Company following the Effective Date unless and until such
Amended and Restated Certificate of Incorporation shall be amended or repealed
in accordance with the provisions thereof, which power to amend or repeal is
hereby expressly reserved, and all rights or powers of whatsoever nature
conferred with such Amended and Restated Certificate of Incorporation or herein
upon any shareholder or director or officer of the Delaware Company or upon any
other person whomsoever are subject to the reserve of such power. Such Amended
and Restated Certificate of Incorporation shall constitute the Certificate of
Incorporation of the Delaware Company separate and apart from this Agreement and
Plan of Merger and may be separately certified as the Certificate of
Incorporation of the Delaware Company.
7. By-Laws. The By-Laws of the Delaware Company as they exist on the
Effective Date shall be the By-Laws of the Delaware Company following the
Effective Date unless and until such By-Laws shall be amended or repealed in
accordance with the provisions thereof.
8. Board of Directors and Officers. The members of the first Board of
Directors and the officers of the Delaware Company immediately after the
effective time of the merger
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shall be those persons who were members of the Board of Directors and the
officers, respectively, of the Nevada Company, immediately prior to the
effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the By-Laws or until their
respective successors are duly elected and qualified, including, without
limitations, service by the directors in accordance with the election of such
directors as Class 1 directors, Class 2 directors and Class 3 directors at the
most recent Shareholder meeting of the Nevada Company in anticipation of this
re-incorporation in Delaware.
9. Vacancies. If, upon the Effective Date, a vacancy shall exist in the
Board of Directors or in any of the officers of the Delaware Company as they are
specified above, such vacancy shall thereafter be filled by appointment and
majority approval of the Board of Directors of the Delaware Company in the
manner provided by law and the By-Laws of the Delaware Company.
10. Further Assurance of Title. If at any time the Delaware Company shall
consider or be advised that any acknowledgements or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm in
and to the Delaware Company any right, title, or interest in the Nevada Company
held immediately prior to the Effective Date, the Nevada Company and its proper
officers and directors shall and will execute and deliver all such
acknowledgments or assurances in law and do all such things as are necessary or
proper to acknowledge or confirm such right, title or interest in the Delaware
Company in accordance with this Agreement and Plan of Merger, and the Delaware
Company and the proper officers and directors thereof are fully authorized to
take any and all such action in the name of the Nevada Company or otherwise.
11. Retirement of Outstanding Stock. Forthwith upon the Effective Date,
the one (1) share of the Common Stock of the Delaware Company presently issued
and outstanding shall be retired, and no shares of Common Stock or other
securities of the Delaware Company shall be issued in respect thereof.
12. Conversion of Outstanding Stock. Forthwith upon the Effective Date,
each of the issued and outstanding shares of Common Stock of the Nevada Company
and all rights in respect thereof shall be converted into one fully paid and
non-assessable share of Common Stock of the Delaware Company, and each
certificate nominally representing shares of Common Stock of the Nevada Company
shall for all purposes be deemed to evidence the ownership of shares of Common
Stock of the Delaware Company. The holders of such certificates of the Nevada
Company shall not be required to surrender their certificates in exchange for
certificates of Common Stock of the Delaware Company but, as certificates
nominally representing shares of Common Stock of the Nevada Company are
surrendered for transfer, the Delaware Company will cause to be issued
certificates representing shares of Common Stock of the Delaware Company, and,
at any time upon surrender by any holder of certificates nominally representing
shares of Common Stock of the Nevada Company, the Delaware Company will cause to
be issued therefore certificates for a like number of shares of Common Stock of
the Delaware Company, subject to any reverse or forward splits of Common Stock
of the Delaware Company in effect thereafter.
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13. Retirement of Treasury Stock. Forthwith upon the Effective Date,
shares of Common Stock of the Nevada Company held in the Treasury of the Nevada
Company, if any, on the Effective Date, shall be retired and no shares of Common
Stock or any other securities of the Delaware Company shall be issued in respect
thereof.
14. Rights and Liabilities of the Delaware Company. At and after the
effective time of the merger, the Delaware Company shall succeed to and possess,
without further act or deed, all of the estate, rights, privileges, powers and
franchises, both public and private, and all of the property, real,
intellectual, personal, and mixed, of each of the parties hereto; all debts due
to the Nevada Company on whatever account shall be vested in the Delaware
Company; all claims, demands, property, rights, privileges, powers and
franchises and every other interest of either of the parties hereto shall be as
effectively the property of the Delaware Company as they were of the respective
parties hereto; the title to any real estate vested by deed or otherwise in the
Nevada Company shall not revert or be in any way impaired by reason of the
merger, but shall be vested in the Delaware Company; all rights of creditors and
all liens upon any property of either of the parties hereto shall be preserved
unimpaired, limited in lien to the property affected by such lien at the
Effective Date of the merger; all debts, liabilities, and duties of the
respective parties hereto shall henceforth attached to the Delaware Company and
may be enforced against it to the same extent as if such debts, liabilities, and
duties had been incurred or contracted by it; and the Delaware Company shall
indemnify and hold harmless the officers and directors of each of the parties
hereto against all such debts, liabilities and duties and against all claims and
demands arising out of the merger.
15. Book Entries. The merger contemplated hereby shall be treated as a
pooling of interests and as of the Effective Date entries shall be made upon the
books of the Delaware Company in accordance with the following:
A. The assets and liabilities of the Nevada Company shall be recorded at
the amounts at which they are carried on the books of the Nevada Company
immediately prior to the Effective Date with appropriate adjustment to reflect
the retirement of the one (1) share of Common Stock of the Delaware Company
presently issued and outstanding.
B. There shall be credited to Capital Account the aggregate amount of the
par value per share of all of the Common Stock of the Delaware Company resulting
from the conversion of the outstanding Common Stock of the Nevada Company.
C. There shall be credited to Capital Surplus Account an amount equal to
that carried on the Capital Surplus Account of the Nevada Company immediately
prior to the Effective Date.
D. There shall be credited to Earned Surplus Account an amount equal to
that carried on the Earned Surplus Account of the Nevada Company immediately
prior to the Effective Date.
16. Options and Warrants. Upon the Effective Date, the Delaware Company
will assume and continue all of the Nevada Company's stock option plans,
including but not limited
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to its 2000 Stock Option Plan, and the outstanding and unexercised portions of
all options and warrants to buy Common Stock of the Nevada Company shall become
respectively options and warrants for the same number of shares of Common Stock
of the Delaware Company with no other changes in the terms and conditions of
such options and warrants, including exercise prices, and, effective upon the
Effective Date, the Delaware Company shall assume the outstanding and
unexercised portions of any and all such options and warrants and the
obligations of the Nevada Company with respect thereto.
17. Service of Process on the Delaware Company. The Delaware Company
agrees that it may be served with process in the State of Nevada in any
proceeding for enforcement of any obligation of the Nevada Company as well as
for the enforcement of any obligation of the Delaware Company arising from the
merger, including any suit or other proceeding to enforce the right of any
shareholder as determined in appraisal proceedings pursuant to the provisions of
Sections 92A.300 et seq. of Nevada Revised Statues.
18. Amendment. At any time before or after approval by the shareholders of
the Nevada Company, this Agreement and Plan of Merger may be amended in any
manner (except that any of the principal terms may not be amended without the
approval of the shareholders of the Nevada Company) as may be determined in the
judgment of the respective Board of Directors of the Nevada Company and the
Delaware Company to be necessary, desirable or expedient in order to clarify the
intention of the parties hereto or to effect or facilitate the purpose and
intent of this Agreement and Plan of Merger.
19. Termination. This Agreement and Plan of Merger may be terminated and
abandoned by action of the Board of Directors of the Nevada Company at any time
prior to the Effective Date, whether before or after approval of the
shareholders of the parties hereto.
20. Expenses and Rights of Dissenting Shareholders. The Delaware Company
shall pay all expenses of carrying this Agreement and Plan of Merger into effect
and of accomplishing the merger, including amounts, if any, to which dissenting
shareholders of the Nevada Company may be entitled by reason of this merger.
21. Authorization. This Agreement and Plan of Merger was duly authorized
by a majority vote of the shareholders and Directors of the Nevada Company at
meetings held on September 12, 2000 and May 24, 2000, respectively, wherein
specific authorization was given for the incorporation and formation of the
Delaware Company for the purpose of changing the domicile of the Nevada Company
to that of the State of Delaware, and was duly adopted by the newly formed Board
of Directors of the Delaware Company.
22. Counterparts. In order to facilitate the filing and recording of this
Agreement and Plan of Merger, it may be executed in any number of counterparts,
each of which shall be deemed to be an original.
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IN WITNESS THEREOF, The Nevada Company and the Delaware Company, pursuant
to the approval and authority duly given by resolutions adopted by their
respective Board of Directors and by approval of a majority of the shareholders,
have caused this Agreement and Plan of Merger to be executed by its respective
President and Secretary, on December 8, 2000.
The Nevada Company The Delaware Company
By: ________________________________ By: ____________________________________
Xxxxxxxxx X. Xxxxxx, President Xxxxxxxxx X. Xxxxxx, President
and Secretary
By: ________________________________
Xxxxxxx Xxxxxxx, Secretary
The undersigned certify under penalty of perjury that they have read the
foregoing Agreement and Plan of Merger and know the contents thereof, that the
statements therein are true and that this Agreement and Plan of Merger was
executed at Burlingame, California on December 8, 2000.
The Nevada Company The Delaware Company
By: ________________________________ By: ____________________________________
Xxxxxxxxx X. Xxxxxx, President Xxxxxxxxx X. Xxxxxx, President
and Secretary
By: ________________________________
Xxxxxxx Xxxxxxx, Secretary
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CERTIFICATE OF THE SECRETARY
OF
ANTS XXXXXXXX.XXX
(a Nevada Company)
I, Xxxxxxx Xxxxxxx, the Secretary of ANTs xxxxxxxx.xxx, a corporation
organized and existing under the laws of the State of Nevada (the "Nevada
Company"), hereby certify, as such Secretary, that:
1. The transaction described in the Agreement and Plan of Merger
attached to this Certificate (the "Plan of Merger") was duly submitted to the
stockholders of the Nevada Company, at the 2000 Annual Meeting of Shareholders
held on September 12, 2000. For the purpose of considering and taking action
upon the proposed Plan of Merger, there were12,756,197 fully paid,
non-assessable shares of Common Stock of the Nevada Company issued and
outstanding entitled to vote, and the holders voted either in person or by
proxy. 7,186,705 shares voted FOR and 108,047 shares voted AGAINST the Plan of
Merger, and thereby the Plan of Merger was also duly adopted as the act of the
shareholders of the Nevada Company.
2. The principal terms of the Plan of Merger were duly approved by
the Board of Directors of the Nevada Company.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on December 8, 2000, at Burlingame, California
________________________________________
Xxxxxxx Xxxxxxx, Secretary of
ANTs xxxxxxxx.xxx
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CERTIFICATE OF THE SECRETARY
OF
ANTS SOFTWARE INC.
(a Delaware Company)
I, Xxxxxxxxx X. Xxxxxx, the Secretary of ANTs software inc., a corporation
organized and existing under the laws of the State of Delaware (the "Delaware
Company"), hereby certify, as such Secretary, that the principal terms of the
Plan of Merger were duly approved by the sole Director and the sole shareholder
of the Delaware Company.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on December 8, 2000, at Burlingame, California
________________________________________
Xxxxxxxxx X. Xxxxxx, Secretary of
ANTs software inc.
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