AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “Merger Agreement”),
dated as of March 3, 2010, is made and entered into by and between Energy and
Power Solutions, Inc., a California corporation (the “Company”) and Energy
and Power Solutions, Inc., a Delaware corporation and wholly owned subsidiary of
the Company (the “Subsidiary”).
RECITALS
WHEREAS,
the Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of California with authorized capital stock
consisting of 53,000,000 shares of common stock, $0.0001 par value per share
(“Common
Stock”), and 41,000,000 shares of Preferred Stock, par value $0.0001 per
share (“Preferred
Stock”), consisting of 6,000,000 shares of Series A Preferred Stock
(“Series A Preferred
Stock”) and 35,000,000 shares of Series B Preferred Stock (“Series B Preferred
Stock”);
WHEREAS,
the Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware;
WHEREAS,
the Board of Directors of the Company has determined that, for purposes of
effecting the reincorporation of the Company in the State of Delaware, it is
advisable and in the best interests of the Company and its shareholders (the
“Company
Shareholders”) for the Company to merge with and into the Subsidiary upon
the terms and conditions set forth herein;
WHEREAS,
the respective Boards of Directors and shareholders of the Company and the
Subsidiary have authorized and approved the merger of the Company with and into
the Subsidiary (the “Merger”) subject to
and upon the terms and conditions of this Merger Agreement, and have approved
the terms of this Merger Agreement and directed that it be executed by the
undersigned officers; and
WHEREAS,
it is the intention of the Company and the Subsidiary that the Merger be a
tax-free reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended.
NOW,
THEREFORE, for and in consideration of the mutual premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE
I
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THE
MERGER
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SECTION
1.1 Merger of the Company into
Subsidiary. At the Effective Time (as defined in Section 2.1), the
Company will merge with and into the Subsidiary in accordance with the
California Corporations Code (the “California Law”) and
the Delaware General Corporation Law (the “Delaware
Law”). The separate existence of the Company will thereupon
cease and the Subsidiary will be the surviving corporation (hereinafter referred
to as the “Surviving
Corporation”). The separate corporate existence of the
Surviving Corporation, with all its purposes, objects, rights, privileges,
powers and franchises, will continue and the Surviving Corporation will succeed
to all the assets, properties, licenses, agreements, liabilities, debts and
other interests due or belonging to the Company. For the sake of
clarity and the avoidance of doubt, all corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Company, the
Company Shareholders, the Board of Directors of the Company and committees
thereof, and the officers and agents thereof, which were valid and effective
immediately prior to the Effective Time, will be taken for all purposes as acts,
plans, policies, agreements, arrangements, approvals and authorizations of the
Surviving Corporation and will be as effective and binding thereon as the same
were with respect to the Company. The employees and agents of the
Company will become the employees and agents of the Subsidiary and continue to
be entitled to the same rights and benefits which they enjoyed as employees and
agents of the Company. The requirements of any plans or agreements of
the Company involving the issuance or purchase by the Company of certain shares
of its capital stock will be satisfied by the issuance or purchase of a like
number of shares of the Surviving Corporation. The subsidiaries of
the Company will become the subsidiaries of the Surviving
Corporation.
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ARTICLE
II
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EFFECTIVE TIME; EFFECT
OF MERGER
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SECTION
2.1 Effective
Time. The Merger will become effective on the date the
Certificate of Ownership is filed with the Secretary of State of the State of
California, or the date a Certificate of Ownership and Merger is filed with the
Secretary of State of the State of Delaware, whichever filing occurs last (the
“Effective
Time”).
SECTION
2.2 Effects of the
Merger. At the Effective Time, the Merger will have the
effects specified in the California Law, the Delaware Law and this Merger
Agreement.
SECTION
2.3 Certificate of Incorporation
and Bylaws. At the Effective Time, the Certificate of
Incorporation attached hereto as Exhibit A will be the
Certificate of Incorporation of the Surviving Corporation. At the
Effective Time, the Bylaws of the Subsidiary, as in effect immediately prior to
the Effective Time, will be the Bylaws of the Surviving
Corporation.
SECTION
2.4 Directors and
Officers. At the Effective Time, the directors and officers of
the Company in office at the Effective Time will retain their positions as the
directors and officers, respectively, of the Surviving Corporation, each of such
directors and officers to hold office, subject to the applicable provisions of
the Certificate of Incorporation and Bylaws of the Surviving Corporation and the
Delaware Law, until his or her successor is duly elected or appointed and will
qualify, or until his or her earlier death, resignation or removal.
SECTION
2.5 Name of Surviving
Corporation. At the Effective Time, “Energy and Power
Solutions, Inc.” will be the name of the Surviving Corporation.
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ARTICLE
III
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CONVERSION AND
EXCHANGE OF STOCK
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SECTION
3.1 Conversion.
(a) Shares. At
the Effective Time, each share of Common Stock issued and outstanding
immediately prior to the Effective Time will, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and
become one share of common stock of the Surviving Corporation. At the
Effective Time, each share of Series A Preferred Stock and Series B Preferred
Stock issued and outstanding immediately prior to the Effective Time will, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become one share of Series A Preferred Stock or Series B
Preferred Stock, respectively, of the Surviving Corporation.
(b) Cancellation. At
the Effective Time, each share of the common stock of the Subsidiary issued and
outstanding immediately prior to the Effective Time and held by the Company will
be canceled without any consideration being issued or paid
therefor.
(c) Equity
Plans. Upon the Effective Time, the Surviving Corporation will
assume and continue any and all stock option, stock incentive and other
equity-based award plans heretofore adopted by the Company (individually, an
“Equity Plan”
and collectively, the “Equity Plans”), and
will reserve for issuance under each Equity Plan a number of shares of common
stock of the Surviving Corporation equal to the number of shares of stock so
reserved by the Company immediately prior to the Effective Time. Each
unexercised option or other right to purchase Common Stock granted under and by
virtue of any such Equity Plan which is outstanding immediately prior to the
Effective Time will, upon the Effective Time, become an option or right to
purchase common stock of the Surviving Corporation on the basis of one share of
common stock of the Surviving Corporation for each share of Common Stock
issuable pursuant to any such option or stock purchase right, and otherwise on
the same terms and conditions and at an exercise or conversion price per share
equal to the exercise or conversion price per share applicable to the Company
option or stock purchase right. Each equity-based award relating to
Common Stock granted or awarded under any of the Equity Plans which is
outstanding immediately prior to the Effective Time will, upon the Effective
Time, become an award relating to common stock of the Surviving Corporation on
the basis of one share of common stock of the Surviving Corporation for each
share of Common Stock to which such award relates and otherwise on the same
terms and conditions applicable to such award immediately prior to the Effective
Time.
(d) Warrants. Each
unexercised warrant to purchase Common Stock (a “Common Stock
Warrant”) which is outstanding immediately prior to the Effective Time
will, upon the Effective Time, become a Common Stock Warrant of the Surviving
Corporation on the basis of one share of common stock of the Surviving
Corporation for each share of Common Stock issuable pursuant to any such Common
Stock Warrant, and otherwise on the same terms and conditions and at an exercise
or conversion price per share equal to the exercise or conversion price per
share applicable to the Common Stock Warrant. Each unexercised
warrant to purchase Preferred Stock (a “Preferred Stock
Warrant”) which is outstanding immediately prior to the Effective Time
will, upon the Effective Time, become a Preferred Stock Warrant of the Surviving
Corporation on the basis of one share of such series of preferred stock of the
Surviving Corporation for each share of such series of Preferred Stock issuable
pursuant to any such Preferred Stock Warrant, and otherwise on the same terms
and conditions and at an exercise or conversion price per share equal to the
exercise or conversion price per share applicable to the Preferred Stock
Warrant.
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SECTION
3.2 Exchange of
Certificates. At the Effective Time, stock certificates
representing capital stock of the Company will automatically represent an equal
number of shares of capital stock of the Surviving Corporation. At
any time after the Effective Time, the holders of capital stock represented by
certificates issued prior to the Effective Time, will be entitled, upon request,
and surrender of such certificates, to the Surviving Corporation, to receive in
exchange therefor a new stock certificate evidencing ownership of the same
number of shares of capital stock of the Surviving Corporation. If
any new certificate is to be issued in a name other than that in which the
certificate surrendered in exchange therefor is registered, it will be a
condition of the issuance thereof that the certificate or other writing so
surrendered will be properly endorsed and otherwise in proper form for transfer
and that the person requesting such exchange will pay to the Surviving
Corporation or its transfer agent any transfer or other taxes required by reason
of the issuance of a certificate representing shares of capital stock in any
name other than that of the registered holder of the certificate surrendered, or
otherwise required, or will establish to the satisfaction of the transfer agent
that such tax has been paid or is not payable.
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ARTICLE
IV
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MISCELLANEOUS
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SECTION
4.1 Amendment. This
Merger Agreement may be amended, modified or supplemented, in whole or in part,
at any time prior to the Effective Time with the mutual consent of the
respective Boards of Directors of the Company and the Subsidiary to the full
extent permitted under applicable law.
SECTION
4.2 Notices. All
communication hereunder will be in writing and, sent by mail, or by facsimile as
set forth below:
If to the
Company:
Energy
and Power Solutions, Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx X000
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attention:
Xxx Xxxxxxxx
If to the
Subsidiary:
Energy
and Power Solutions, Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx X000
Xxxxx
Xxxx, Xxxxxxxxxx 00000
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Attention:
Xxx Xxxxxxxx
SECTION
4.3 Abandonment;
Postponement. At any time prior to the Effective Time, this
Merger Agreement may be terminated and the Merger may be abandoned by the
respective Boards of Directors of the Company or the Subsidiary, or the
consummation of the Merger may be postponed for a reasonable period of time,
without any action of the Company Shareholders or the stockholder of the
Subsidiary.
SECTION
4.4 Further
Assurances. If at any time after the Effective Time of the
Merger, the Surviving Corporation will consider that any assignments, transfers,
deeds or other assurances in law are necessary or desirable to vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation, title to any
property or rights of the Company, the Company and its directors and officers
holding office at the Effective Time will execute and deliver such documents and
do all things necessary and proper to vest, perfect or confirm title to such
property or rights in the Surviving Corporation, and the officers and directors
of the Surviving Corporation are fully authorized in the name of the Company or
otherwise to take any and all such action.
SECTION
4.5 Counterparts. This
Merger Agreement may be executed in any number of counterparts, each of which
will be deemed to be an original and all of which together will be deemed to be
one and the same instrument. In the event that any signature is
delivered by facsimile or other means of electronic image transmission, such
signature will create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or electronically transmitted signature page were an original
thereof.
SECTION
4.6 Governing
Law. This Merger Agreement will be construed in accordance
with the laws of the State of Delaware, without regard to the principles of
conflicts of laws of such state.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties to this Merger Agreement have executed this Merger
Agreement on and as of the day first written above.
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ENERGY AND POWER SOLUTIONS,
INC.,
a
California corporation
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By: _/s/
Xxx Zoellner_____________________
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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ENERGY AND POWER SOLUTIONS,
INC.,
a
Delaware corporation
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By: _/s/
Xxx Zoellner_____________________
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Name:
Xxx Xxxxxxxx
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Title: President
and Chief Executive
Officer
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