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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
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This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of March 16, 2000, by and between TotalPlan, Inc. (formerly
known as "TotalEnergy Plan, Inc."), a Delaware corporation ("TotalPlan"), and
PowerSpring, Inc., a Delaware corporation ("PowerSpring"). TotalPlan and
PowerSpring are sometimes hereinafter collectively referred to as the
"Constituent Corporations."
W I T N E S S E T H:
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WHEREAS, TotalPlan is a corporation duly organized and existing under
the laws of the State of Delaware, having been incorporated on August 5, 1999;
and
WHEREAS, PowerSpring is a corporation duly organized and existing under
the laws of the State of Delaware, having been incorporated on September 24,
1999; and
WHEREAS, the respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each and of its
respective stockholders that TotalPlan merge with and into PowerSpring upon the
terms and subject to the conditions set forth in this Agreement; and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have adopted and approved this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, representations and warranties set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
ARTICLE 1. THE MERGER.
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Section 1.1 The Merger. At the Effective Time (as defined in Section
1.2), upon the terms and subject to the conditions set forth in this Agreement,
and in accordance with the provisions of the General Corporation Law of the
State of Delaware ("Delaware Law"), TotalPlan shall be merged with and into
PowerSpring (the "Merger"), and the separate corporate existence of TotalPlan
(except insofar as it may be continued by applicable law) shall cease. TotalPlan
shall continue as the surviving corporation (sometimes referred to herein as the
"Surviving Corporation") of the Merger and shall continue its corporate
existence under the laws of the State of Delaware.
Section 1.2 Effective Time. As soon as practicable after this Agreement
shall have been duly adopted and approved by the sole stockholder of each of the
Constituent Corporations, the Constituent Corporations shall cause the Merger to
be consummated by executing and filing with the Secretary of State of the State
of Delaware a Certificate of Merger
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in the form required by and otherwise in accordance with the provisions of
Section 251 of the DGCL (the "Certificate of Merger"). The Merger shall become
effective on the date and at the time when the Certificate of Merger is filed
with the Secretary of State of the State of Delaware, or at such later date
and/or time specified in the Certificate of Merger (as mutually agreed to by the
Constituent Corporations). The date and time when the Merger becomes effective
is herein referred to as the "Effective Time."
Section 1.3 Effects of Merger. The Merger shall have the effects set
forth in Section 259 of the DGCL. Without limiting the foregoing, and subject
thereto, and without further act, deed, transfer or conveyance, from and after
the Effective Time the Surviving Corporation shall succeed to, possess and be
vested in all of the assets, properties, rights, privileges, powers and
franchises of the Constituent Corporations, including, without limitation, all
property of every description, real, personal and mixed, wherever located, and
each and every other interest of every kind and nature, and shall be subject to
all other debts, liabilities, restrictions, disabilities and duties of the
Constituent Corporations.
Section 1.4 Name of Surviving Corporation. The name of the Surviving
Corporation shall be "PowerSpring, Inc.", unless later changed in accordance
with the provisions of the Certificate of Incorporation of the Surviving
Corporation and of applicable law.
Section 1.5 Certificate of Incorporation of the Surviving Corporation.
The Certificate of Incorporation of the Surviving Corporation shall be amended
to read in its entirety as set forth on Exhibit A, which is attached hereto and
incorporated herein by this reference, until amended in accordance with the
provisions thereof and of applicable law.
Section 1.6 By-Laws of the Surviving Corporation. The By-Laws of
PowerSpring, as in effect immediately prior to the Effective Time, shall be the
By-Laws of the Surviving Corporation, until amended in accordance with the
provisions thereof and of the Certificate of Incorporation of the Surviving
Corporation and of applicable law.
Section 1.7 Officers and Directors of the Surviving Corporation. The
officers and directors of PowerSpring immediately prior to the Effective Time
shall be the initial officers and directors of the Surviving Corporation
(holding the same titles and positions), each to hold his respective office or
offices until his respective successor is duly elected or appointed and
qualified in accordance with the provisions of the Certificate of Incorporation
and By-Laws of the Surviving Corporation and of applicable law, or until his
earlier death, resignation or removal.
Section 1.8 Further Assurances. If, at any time after the Effective
Time, any further action is necessary, convenient or desirable in order to carry
out the purposes of this Agreement or to vest, perfect or confirm, of record or
otherwise, in the surviving corporation the full right, title, interest and
possession of all assets, properties, rights, privileges, immunities, powers,
franchises and authority of the Constituent Corporations, or to otherwise carry
out the provisions of this Agreement, the officers of each of the Constituent
Corporations are fully authorized in the names and on behalf of their respective
entities or otherwise to take such lawful actions including, without limitation,
the execution, delivery, filing and acknowledgment of all deeds,
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bills of sales, assignments, assurances and other documents, instruments and
agreements as may be necessary, convenient or desirable, in the discretion of
the Surviving Corporation, to effect the same.
Section 1.9 Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of either Constituent
Corporation or the holder of any of the following securities or of any other
Person:
(a) TotalPlan Common Stock. All of the shares of Common Stock,
par value $.01 per share, of TotalPlan ("TotalPlan Common Stock")
issued and outstanding immediately prior to the Effective Time shall be
cancelled and retired without payment of any consideration therefore
and shall cease to exist.
(b) PowerSpring Common Stock. Each shares of Common Stock, par
value $.01 per share, of PowerSpring ("PowerSpring Common Stock")
issued and outstanding immediately prior to the Effective Time shall be
converted into 17,500 shares, par value $.01 per share, of Common Stock
of the Surviving Corporation ("Surviving Corporation Common Stock").
Section 1.10 Stock Certificates. At and after the Effective Time, all
of the outstanding certificates that, immediately prior to the Effective Time,
represented shares of PowerSpring Common Stock shall be deemed for all purposes
to evidence ownership of and to represent the number of shares of Surviving
Corporation Common Stock into which such shares of PowerSpring Common Stock are
converted as provided herein. The registered owner on the books and records of
PowerSpring of any such outstanding stock certificates for PowerSpring Common
Stock shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to the Surviving Corporation or its transfer agent, be
entitled to exercise any voting and other rights with respect to, and to receive
any dividend and other distributions upon, the shares of the Surviving
Corporation Common Stock evidenced by such outstanding certificate as provided
above.
ARTICLE 2. CONDITION.
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Section 2.1 Stockholder Approval. The consummation of the Merger is
subject to the approval of this Agreement and the Merger contemplated hereby by
the sole stockholder of TotalPlan and by the sole stockholder of PowerSpring, at
or prior to the Effective Time.
ARTICLE 3. TERMINATION AND ABANDONMENT; AMENDMENT
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Section 3.1 Termination and Abandonment. At any time prior to the
Effective Time, this Merger Agreement may be terminated and the Merger may be
abandoned by the Board of Directors of either Constituent Corporation,
notwithstanding the adoption and approval of the Merger and of this Agreement by
the sole stockholder of either Constituent Corporation, for any reason, without
notice, without any liabilities on the part of either of the Constituent
Corporations.
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Section 3.2 Amendment. At any time prior to the Effective Time, this
Agreement may be amended, modified or supplemented by the Boards of Directors of
the Constituent Corporations, notwithstanding approval of the Merger and this
Agreement by the sole stockholder of either or both of the Constituent
Corporations; provided, however, that any amendment made subsequent to the
adoption of this Agreement by the sole stockholder of either of the Constituent
Corporations shall not:
(i) Alter or change the amount or kind of shares, securities,
cash, property and/or rights to be received and exchanged for or
conversion of any shares of any class or series of either Constituent
Corporations;
(ii) Alter or change any of the terms of the Certificate of
Incorporation of the surviving corporation to be effected by the
Merger; or
(iii) Alter or change any of the terms or conditions of this
Agreement if such alteration or change would adversely affect the
holders of any shares of any class or series of either Constituent
Corporation.
ARTICLE 4. GENERAL PROVISIONS.
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Section 4.1 Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the internal substantive laws of
the State of Colorado, without giving effect to any conflict or choice of law
principles or rules.
Section 4.2 Amendment. This Agreement may not be amended or modified in
whole or in part in any manner except in a writing which makes reference to this
Agreement executed by both parties hereto.
Section 4.3 Assignment. Neither this Agreement, nor any rights,
obligations or duties hereunder, may be assigned or delegated by any party
hereto without the prior written consent of the other party hereto.
Section 4.4 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
Section 4.5 Entire Agreement.This Agreement, including the Exhibit
hereto, sets forth the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof and supersedes in their entirety all
prior and contemporaneous written and oral agreements, arrangements,
understandings, negotiations, communications, covenants, representations and
warranties among the parties hereto relating to the subject matter hereof.
Section 4.6 Notices. Any and all notices, demands, requests, elections
and other communications required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given (i) upon personal delivery;
(ii) upon confirmation of receipt when sent by facsimile transmission; (iii) one
business day after deposit during normal business hours with a nationally
recognized overnight courier, specifying next day delivery, with written
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verification of receipt; (iv) five business days after being sent by first class
(certified or registered) mail, postage prepaid, return receipt requested, in
each case to the following addresses:
If to PowerSpring: PowerSpring, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: W. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxx X. Xxxx, Esq.
Kegler, Brown, Hill & Xxxxxx Co., L.P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to TotalPlan: TotalPlan, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: W. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxx X. Xxxx, Esq.
Kegler, Brown, Hill & Xxxxxx Co., L.P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party hereto may send any notice, demand, request, election or other
communication to the intended recipient at its address set forth above using any
other means (such as expedited courier, messenger service, telecopy, telex,
ordinary mail or electronic mail), but no such notice, demand, request or other
communication shall be deemed to have been given until it is actually received
by the recipient. Any party hereto may change its designated address by giving
written notice to all other parties.
(g) Waiver. The obligations of any party hereunder may be
waived only with the written consent of the party or parties entitled
to the benefits the obligations so involved. Any waiver of a breach or
violation of or default under any provision of this Agreement shall not
be construed or operate as, or constitute, a waiver of any other or
subsequent breach or violation of or default under that provision or
any other provision of this Agreement. The failure of any party to
insist upon strict compliance with any provision of this Agreement on
any one or more occasions shall not be construed or operate as, or
constitute, a continuing waiver of, or an
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estoppel of that party's right to insist upon strict compliance with,
that provision or any other provision of this Agreement.
(h) Severability. The provisions of this Agreement shall be
deemed severable. If any provision of this Agreement is determined to
be illegal, invalid or unenforceable in any situation: (i) the parties
hereto shall agree to a suitable and equitable provision to be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable
provision; and (ii) the remainder of this Agreement shall remain in
full force and effect, and the application of such provision in any
other situation shall not be affected.
(i) Counterparts. This Agreement may be executed in any number
of counterparts (including counterparts executed by less than all
parties hereto), each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
(j) Headings. The headings used herein are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
(k) No Third Party Beneficiaries. Nothing in this Agreement,
express or implied, in intended to create or confer and shall not be
construed or operate as creating or conferring, any rights or remedies
under or by reason of this Agreement, upon any Person other than the
parties hereto and their respective successors and permitted assigns.
(l) Further Assurances. The parties hereto agree to take or
cause to be taken all actions, which are necessary, convenient or
desirable in order to effect the transactions contemplated by this
Agreement.
(m) Best Efforts. Each of the parties hereto shall act in good
faith and use its best efforts to bring about the transactions
contemplated by this Agreement.
(n) Expenses. Except as otherwise expressly provided herein,
each of the parties to this Agreement shall pay its own costs and
expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby.
(o) Construction. In the event an ambiguity or question or
intent or interpretation arises, this Agreement shall be construed as
if drafted jointly by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
(p) Specific Performance. Each of the parties hereto
acknowledges and agrees that the other parties hereto would suffer
irreparable damage for which an adequate remedy at law would not be
available in the event any of the provisions of this Agreement is not
performed in accordance with its specific terms or otherwise is
breached. Accordingly, each of the parties hereto agrees that the
non-breaching parties shall be entitled to an injunction,
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restraining order or other form of equitable relief from any court of
competent jurisdiction to prevent breaches of, and to specifically
enforce, the provisions of this Agreement.
(q) Publicity. No party hereto shall, directly or through its
affiliates, make any public statement, announcement, press release or
other disclosure regarding this Agreement, the other party or its
relationship under this Agreement or with the other party without the
prior consent of the other party (which consent shall not be
unreasonably withheld or delayed), except (i) to the extent such
disclosure is required by law, judicial process or rule, regulation or
requirement of the Nasdaq Stock Market, or (ii) to the Bank.
(r) Interpretation of Certain Provisions. Except as otherwise
expressly provided herein, as used in this Agreement:
(i) Any reference to any federal, state, local or
foreign statute or law shall be deemed also to include a
reference to all rules and regulations promulgated thereunder.
(ii) The term "including" means "including, without
limitation".
(iii) The term "Person" means and includes an
individual, corporation, partnership, limited liability
company, joint venture, trust, association, unincorporated
organization, governmental or regulating body or authority, or
any other form of business or entity.
(iv) The number and gender of each noun and pronoun
and the terms "Person" and "Persons" and the like shall be
construed to mean such number and gender as the context, the
circumstances or its antecedent may require.
(v) The terms "hereof", "herein", "hereunder" and
words of similar import refer to this Agreement as a whole,
and not to any Section, subsection or clause of this
Agreement.
(vi) Each reference to a Section means such Section
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers to execute and deliver this Agreement and Plan of
Merger, effective as of the date first above written.
TOTALPLAN, INC.
By: /s/ W. Xxxxxxx Xxxxxx
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W. Xxxxxxx Xxxxxx, President
ATTEST:
/s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx, Secretary
POWERSPRING, INC.
By: /s/ W. Xxxxxxx Xxxxxx
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W. Xxxxxxx Xxxxxx, President
ATTEST:
/s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx, Secretary
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