Exhibit 10.2
ARTICLES OF MERGER
FILED PURSUANT TO CHAPTER 92A, NEVADA REVISED STATUTES
These Articles Of Merger (the "Articles"), dated as of August 16,2001,
between MTN Holdings, Inc., a Nevada corporation (the "Surviving Corporation" or
"MTNO") and AGIL, Inc., a Delaware corporation ("Acquisition Corp."), the two
corporations being herein sometimes collectively called the "Constituent
Corporations".
W I T N E S S E T H:
WHEREAS, the Surviving Corporation is a corporation duly organized and
existing under the laws of the State of Nevada, with its principal place of
business at
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WHEREAS, Acquisition Corp. is a corporation duly organized and existing
under the laws of the State of Delaware, with its principal place of business at
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WHEREAS, 100% of the issued and outstanding capital stock of
Acquisition Corp. is owned by MTNO; and
WHEREAS, the Boards of Directors of the Constituent Corporations hereto
deem it desirable upon the terns and subject to the conditions herein stated,
that Acquisition Corp. be merged with and into MTNO and that MTNO be the
Surviving Corporation as outlined herein.
NOW THEREFORE, it is agreed as follows:
SECTION 1.
Plan of Merger, Requisite Approvals and Manner and Basis for Converting
Shares.
1.1 As noted above, prior to the merger, MTNO, the Surviving Corporation
owned 100% of the issued and outstanding capital stock of Acquisition Corp., and
this merger is being undertaken pursuant to Section 92A 180, NRS, which permits
the merger of a wholly-owned subsidiary (i.e., Acquisition Corp.) into its
Parent (i.e., MTNO, the Surviving Corporation) without the approval of the
Owners of the Parent or the Owners of the domestic wholly-owned subsidiary
(i.e., Acquisition Corp.)
Consequently, pursuant to Section 92.A.2003, NRS, a statement is hereby
made that the approval of the Plan of Merger by the Owners of the Parent or of
the wholly-owned subsidiary was not required.
Furthermore, pursuant to Section 92A.180.3. NRS, MTNO, as the sole
Owner of its subsidiary, Acquisition Corp., has, and does hereby waive, the Plan
Summary notice and mailing requirements set forth in Section 92A.180. NBS.
1.2 The Constituent Corporations have entered into a Plan of Merger
Agreement (the "Plan") of which these Articles of Merger are a part, and said
Plan has been approved, adopted, certified, executed and acknowledged by each of
the Constituent Corporations in accordance with the Law of Nevada and the Law of
Delaware. Said Plan is on file at the principal place of business of the
Surviving Corporation located at
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
A copy of said Plan will be furnished by the Surviving Corporation, on
request and without cost, to any owner of the Constituent Corporations.
1.3 Pursuant To Chapter 92A, NRS, the Plan was submitted to the Directors
of MTNO and of Acquisition Corp., and the Plan was unanimously approved by the
Directors of both corporations.
1.4 In accordance with the provisions of these Articles and the
requirements of applicable law, Acquisition Corp. shall be merged with and into
the Surviving Corporation at the Effective Date (as defined in Section 2
hereof). MTNO shall be the Surviving Corporation, and the separate existence of
Acquisition Corp. shall cease at the Effective Date. Consummation of the Merger
shall be on the terms and subject to the conditions set forth herein.
1.5 At the Effective Date, the Surviving Corporation shall continue its
corporate existence as a Nevada corporation, and
(i) it shall thereupon and thereafter possess all rights,
privileges, powers, franchises and property (real, personal and mixed)
of each of the Constituent Corporations:
(ii) all debts due to either of the Constituent Corporations,
on whatever account, Merger without further act or deed; and
(iii) all rights of creditors and all liens upon any property
of any of the Constituent Corporations shall be preserved unimpaired,
limited in lien to the property
1.6 At the Effective Date,
(i) the Articles of Incorporation and the Bylaws of the
Surviving Corporation, as
(ii) the members of the Board of Directors of the Surviving
Corporation holding
1.7 On the Effective Date,
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(i) Acquisition Corp.'s 8% Series A $1,000,000 Senior
Subordinated Convertible Redeemable Debentures (the "'Acquisition Corp.
Debentures"), together with from time to time, shall be converted into
identical MTNO debentures (the "MTNO Debentures"), together with
authorized but unissued underlying shares of common stock, Par Value
$0.001 per share (the 'MTNO Common Stock"), of MTNO into which the new
MTNO Debentures may be converted; and
(ii) All of the issued and outstanding shares of the Common
Stock, Par Value
1.8 Subject to Section 1.7, above, each holder of a certificate
representing issued and outstanding securities of Acquisition Corp. immediately
prior to the Effective Date of the Merger, shall, upon surrender of such
certificate to MTNO after the Effective Date, be entitled to receive a
certificate representing the appropriate number of shares of securities of MTNO
as described in Section 1.7 above. Until actually surrendered, each such
Acquisition Corp. certificate shall, by virtue of the Merger, be deemed for all
purposes to evidence ownership of the appropriate number of securities of MTNO.
1.9 If any certificate representing a MTNO security is to be issued in a
name other than that in which the certificate surrendered is registered, it
shall be a condition of such issuance that the certificate so surrendered shall
be properly endorsed or otherwise in proper form for transfer and that the
person requesting such issuance shall either pay to MTNO OR its transfer agent
any transfer or other taxes required by reason of the issuance of certificates
representing a MTNO security in a name other than that of the registered holder
of the certificate surrendered, or establish to the satisfaction of MTNO or its
transfer agent that such tax has been paid or is not applicable.
SECTION 2.
Effective Date.
2.1 The Merger shall become effective upon the filing of these Articles
with the Secretary of State of the State of Nevada, herein sometimes referred to
as the "Effective Date".
SECTION 3.
Mutual Assistance.
3.1 Each of the Constituent Corporations hereby covenants to mutually
assist the other and to take all action reasonably necessary to accomplish and
effectuate the terms hereof.
SECTION 4.
Amendment, Termination and Counterpart Signatures.
4.1 At any time prior to the filing of these Articles with the Secretary
of State of the State of Nevada, these Articles may be amended by the Boards of
Directors of the Surviving Corporation and Acquisition Corp., to the extent
permitted by state law notwithstanding any previously favorable action on the
Merger by the Directors of either or both of the Constituent Corporations
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with respect to any of the terms contained.
4.2 At any time prior to the filing of these Articles with the Secretary
of State of the State of Nevada, these Articles may be terminated and abandoned
by the Board of Directors of either the Surviving Corporation or Acquisition
Corp. notwithstanding any previously favorable action on the Merger by the
Directors of either or both of the Constituent Corporations.
4.3 These Articles may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 5.
Appointment of Agent for Service of Process.
5.1 Pursuant to Section 92A. 190.2 (a), MTNO, as the Surviving Corporation does
hereby agree that it may be served with process in the State of Nevada in any
proceeding for enforcement of any obligation of the Surviving corporation or
Acquisition Corp. arising from this Merge, including any suit or any other
proceeding to enforce the rights of any owners as determined in appraisal
proceedings pursuant to the corporate law of the State of Nevada, and does
hereby irrevocably appoint the Secretary of State of the State of Nevada as its
agent to accept service of process in any such suit or other proceedings and
does hereby specify that the address to which copies of such process shall be
made by the Secretary of State of Nevada is:
Nevada Agency and Trust Company
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx, Xxxxxx 00000
and
MTN Holdings, Inc.
c/o Xxxxxxxxx Xxxxxxx, President
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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THIS SPACE LEFT BLANK INTENTIONALLY - SIGNATURE PAGES FOLLOW
AS TO ACQUISITION CORP.
APPROVED BY ITS BOARD OF DIRECTORS AND BY ITS OWNERS ON AUGUST 16,2001.
WITNESSES: AGIL, INC.
BY:
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XXXXXXXXX XXXXXXX, PRESIDENT
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF WESTCHESTER
BEFORE ME, THE UNDERSIGNED NOTARY PUBLIC, PERSONALLY APPEARED XXXXXXXXX
XXXXXXX, PRESIDENT, WHO, BEING PERSONALLY KNOWN TO ME, OR WHO PRODUCED THE
FOLLOWING IDENTIFICATION NYDL 424 449 529, AND WHO BEING DULY SWORN AND UNDER
OATH, DEPOSED AND SAID THAT HE IS THE PRESIDENT OF AGIL, INC., A DELAWARE
CORPORATION, AND THAT HE SIGNED THE FOREGOING ARTICLES OF MERGER BETWEEN AGIL,
INC., AND MTN HOLDINGS, INC., A NEVADA CORPORATION ON BEHALF OF AGIL, INC., AS
ITS PRESIDENT.
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NOTARY PUBLIC STATE OF NEW YORK
MY COMMISSION EXPIRES:
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