AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER, dated as of July 9, 2010 (the “Agreement”), between American
Power Merger Corporation., a Nevada corporation (the “Corporation”), and
American Power Corporation., a Nevada corporation (the “Parent”).
WITNESSETH:
WHEREAS,
the Parent desires to acquire all the assets, and to assume all of the
liabilities and obligations, of the Corporation by means of a merger of the
Corporation with and into the Parent, with the Parent being the surviving
corporation (the “Merger”);
WHEREAS,
the Corporation is a wholly-owned subsidiary of the Parent;
WHEREAS,
Section 92A.180 of the Nevada Revised Statutes (“Nevada Law”)
authorize the merger of a Nevada corporation into a Nevada
corporation;
WHEREAS,
the Parent shall be the surviving entity (the “Surviving
Corporation”) and continue its existence as a Nevada corporation;
and
WHEREAS,
the Board of Directors of the Corporation and the Parent have approved this
Agreement and the consummation of the Merger.
NOW
THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE
MERGER
SECTION
1.01. The
Merger.
(a) At the
Effective Time (as defined below), the Corporation shall be merged, the separate
existence of the Corporation shall cease and the Surviving Corporation shall be
the surviving entity and continue its existence as a Nevada
corporation.
(b) The
Merger shall become effective on the date that a Certificate of Ownership and
Merger with respect to the Merger, substantially in the form attached hereto as
Exhibit A, is
accepted for filing by the Office of the Secretary of State of Nevada (the
“Effective
Time”) and all other filings or recordings required by the Nevada Revised
Statutes in connection with the Merger are made.
SECTION
1.02. Merger
Consideration.
At the
Effective Time, each share of common stock, par value $0.001 per share of the
Corporation and Parent which shall be issued and outstanding immediately prior
to the Effective Time shall be exchanged on a 1:1 pro rata basis for new shares
of common stock, par value $0.001 per share in the Surviving Corporation, and
from and after the Effective Time, the holders of all said issued and
outstanding shares of stock of the Corporation shall automatically become
holders of shares of the Surviving Corporation, whether or not certificates
representing said shares are then issued and delivered.
ARTICLE II
THE
SURVIVING CORPORATION
SECTION
2.01. Bylaws; Certificate of
Incorporation. The certificate of incorporation of the Parent,
as in effect immediately prior to the Effective Time, shall be the certificate
of incorporation of the Surviving Corporation unless and until thereafter
amended in accordance with its terms and applicable law. The Bylaws
of the Parent as in effect immediately prior to the Effective Time shall be the
Bylaws of the Surviving Corporation unless and until thereafter amended in
accordance with applicable law.
At the
Effective Time the name of the Surviving Corporation shall be American Power
Corporation.
ARTICLE III
TRANSFER
AND CONVEYANCE OF ASSETS
AND
ASSUMPTION OF LIABILITIES
SECTION
3.01. Transfer, Conveyance and
Assumption. At the Effective Time, the Parent shall continue
in existence as the Surviving Corporation, and without further transfer, succeed
to and possess all of the rights, privileges and powers of the Corporation, and
all of the assets and property of whatever kind and character of the Corporation
shall vest in the Surviving Corporation without further act or deed; thereafter,
the Surviving Corporation, shall be liable for all of the liabilities and
obligations of the Corporation, and any claim or judgment against the
Corporation may be enforced against the Surviving Corporation in accordance with
Section 92A.200 of the Nevada Law.
SECTION
3.02. Further
Assurances. If at any time the Parent shall consider or be
advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record in the Surviving Corporation the
title to any property or right of the Corporation, or otherwise to carry out the
provisions hereof, the proper representatives of the Corporation as of the
Effective Time shall execute and deliver any and all proper deeds, assignments,
and assurances and do all things necessary or proper to vest, perfect or convey
title to such property or right in the Surviving Corporation, and otherwise to
carry out the provisions hereof.
ARTICLE IV
MISCELLANEOUS
SECTION
4.01. Authorized
Person. Xxxxxxxx Xxxxxxxx, President and Director of the
Corporation, shall be authorized, at such time in his sole discretion as he
deems appropriate to execute, acknowledge, verify, deliver, file and record, for
and in the name of the Corporation any and all documents and instruments
including, without limitation, the certificate of incorporation of the Surviving
Corporation and the Certificate of Merger, and shall do and perform any and all
acts required by applicable law which the Surviving Corporation deems necessary
or advisable, in order to effectuate the Merger.
SECTION
4.02. Survival of Representations
and Warranties. The representations and warranties and
agreements contained in any certificate or other writing delivered pursuant
hereto shall not survive the Effective Time or the termination of this
Agreement.
SECTION
4.03. Amendments; No
Waivers. (a) Any provision of this Agreement may,
subject to applicable law, be amended or waived prior to the Effective Time if,
and only if, such amendment or waiver is in writing and signed by the
Corporation and the Parent.
(b) No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION
4.04. Integration. All
prior or contemporaneous agreements, contracts, promises, representations, and
statements, if any, between the Parent and the Corporation, or their
representatives, are merged into this Agreement, and this Agreement shall
constitute the entire understanding between the Parent and the Corporation with
respect to the subject matter hereof.
SECTION
4.05. Successors and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other party hereto.
SECTION
4.06. Governing
Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Nevada, without reference to
principles of conflicts of law
SECTION
4.07. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received the
counterpart hereof signed by the other party hereto.
[Signature
Page Follows]
[SIGNATURE
PAGE TO AGREEMENT AND PLAN OF MERGER]
IN
WITNESS WHEREOF, the undersigned have executed this instrument as of the date
first written above.
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American
Power Merger Corporation
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a
Nevada corporation
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By:
/s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx
Xxxxxxxx
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Title: President
and Director
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American
Power Corporation
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a
Nevada corporation
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By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx
Xxxxxxxx
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Title: President
and Director
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EXHIBIT
A
CERTIFICATE
OF OWNERSHIP AND MERGER
