AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit
10.1
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, is executed as of April 21, 2010 by and
among Advanced Energy Industries, Inc., a corporation organized under the laws of the
State of Delaware (the “Acquiror”), Neptune Acquisition Sub, Inc., a corporation
organized under the laws of the State of Oregon (“Acquiror Sub”), and PV Powered,
Inc., a corporation organized under the laws of the State of Oregon (the “Company”).
RECITALS
WHEREAS, the Acquiror, Acquiror Sub and the Company have previously entered into that certain
Agreement and Plan of Merger dated as of March 24, 2010 (the “Merger Agreement”).
Capitalized terms used but not otherwise defined herein shall have the meanings given such terms in
the Merger Agreement.
WHEREAS, Section 10.6 of the Merger Agreement allows the Acquiror, Acquiror Sub and the
Company to amend the Merger Agreement.
WHEREAS, it is a condition to the Closing (i) that all Company Options and Company Warrants
that are not exercised prior to or contemporaneously with the Closing be terminated as of the
Closing; and (ii) that there be no more than thirty-five (35) Unaccredited Shareholders who receive
Acquiror Shares in the Merger and that the issuance of the Acquiror Shares comply with the
requirements of Regulation D under the Securities Act.
WHEREAS, the Parties desire to amend the Merger Agreement (i) to clarify how the payment of
the exercise price of any Company Options and Company Warrants that are exercised other than by
cash payment to the Company prior to the Closing Date will be satisfied and treated under the
Merger Agreement and (ii) to clarify how the Aggregate Merger Consideration Payable at Closing will
be allocated to certain holders of Company Options who are Unaccredited Shareholders.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth in this Amendment, and intending to be legally bound
hereby, the Parties agree as follows.
AMENDMENT
1. Sections 2.4(a) and 2.4(b) shall be deleted in their entirety and replaced with the
following language:
SECTION 2.4. Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the Acquiror, Acquiror Sub or the
Company, or of the holders of any shares of common stock of the Company (the “Common
Shares”), any shares of preferred stock of the Company (the “Preferred Shares”
and together with the Common Shares, the “Company Shares”), or any shares of capital
stock of Acquiror Sub:
(a) Subject to the other provisions of this Section 2.4, each issued and
outstanding Common Share (excluding for these purposes Dissenting Shares and Common Shares
held by Unaccredited Small Option Holders) shall be converted into the right to receive,
upon the surrender of the certificate formerly representing such Common Share (or lost share
affidavit in a
form reasonably acceptable to Acquiror), and without interest, (i) cash in an amount
equal to the Cash Consideration (less the amount of the Shareholder Representative Holdback,
Closing Date Indebtedness and Unsatisfied Transaction Costs paid pursuant to Section
2.8) divided by the Base Number (the “Per Share Closing Cash Consideration”)
minus the Unaccredited Shareholder Per Share Adjustment, (ii) a number of Acquiror Common
Shares equal to the Closing Share Consideration divided by the Share Base Number (the
“Per Share Closing Share Consideration”), and (iii) the right to receive a portion
of the Additional Consideration, if any, payable pursuant to Section 2.3 equal to
the Additional Consideration (less the subsequent Interim CEO Payment not paid at Closing)
divided by the Base Number (the “Per Share Additional Consideration”). Each Common
Share held by an Unaccredited Small Option Holder shall be converted into the right to
receive, upon surrender of the certificate formerly representing such Common Share (or lost
share affidavit in a form reasonably acceptable to Acquiror), and without interest, (i) the
Per Share Closing Cash Consideration plus the product of (A) the Unaccredited Shareholder
Per Share Adjustment multiplied by (B) the Unaccredited Adjustment Multiplier, and (ii) the
right to receive the Per Share Additional Consideration, if any, payable pursuant to
Section 2.3. Notwithstanding the foregoing and any provision to the contrary in this
Agreement, the Per Share Closing Cash Consideration payable with respect to each Common
Share issued upon exercise of a Company Option or a Company Warrant for which the exercise
price is not paid to the Company in cash shall be reduced by an amount equal to the exercise
price per share for such Company Option or Company Warrant.
(b) Subject to the other provisions of this Section 2.4, each issued and
outstanding Preferred Share (excluding for these purposes Dissenting Shares) shall be
converted into the right to receive, upon the surrender of the certificate formerly
representing such Preferred Share, and without interest, (i) cash in an amount equal to the
Per Share Closing Cash Consideration multiplied by 1.15 minus the Unaccredited Shareholder
Per Share Adjustment, (ii) a number of Acquiror Common Shares equal to the Per Share Closing
Share Consideration multiplied by 1.15, and (iii) the right to receive a portion of the
Additional Consideration, if any, payable pursuant to Section 2.3 equal to the Per
Share Additional Consideration multiplied by 1.15.
2. The first two sentences of Section 2.8 shall be deleted in their entirety and replaced with the
following language:
SECTION 2.8 Certain Payments. On the Closing Date, the Acquiror shall, on
behalf of the Company and the Shareholders, as applicable, pay to such account or accounts as the
Company specifies to the Acquiror in writing at least three (3) Business Days prior to the Closing
Date, the aggregate amount of any Closing Date Indebtedness, Unsatisfied Transaction Costs, the
Shareholder Representative Holdback and the Xxxxx Advance, along with evidence reasonably
satisfactory to the Acquiror of such amounts so due and payable. The Cash Consideration paid at
Closing shall be reduced by the aggregate amount of any such payments of Closing Date Indebtedness,
Unsatisfied Transaction Costs and the Shareholder Representative Holdback, but not by the amount of
the Xxxxx Advance which shall be paid directly by Acquiror to Xxxxx Renewable Holdings III, LLC by
wire transfer of same day funds.
3. The following definitions shall be added to Article XI:
“Share Base Number” means the total number of issued and outstanding Common Shares
less Common Shares held by Unaccredited Small Option Holders, after giving effect to the
conversion of all issued and outstanding Preferred Shares into Common Shares immediately
prior to the Closing pursuant to Article IV of the Company’s Articles of Incorporation and
the number of Common Shares issued upon exercise of all outstanding Company Options and
Company Warrants exercised prior to Closing, all as set forth in the Closing Statement.
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“Shareholder Representative Holdback” means an amount of the Cash Consideration
equal to $250,000 to be deposited into an escrow account established in the name of the
Shareholder Representative and distributed pursuant to the Indemnification, Contribution and
Holdback Agreement to be entered into by and among the Shareholders (other than Shareholders
holding Dissenting Shares) with the Shareholder Representative as of Closing.
“Unaccredited Adjustment Multiplier” means a number equal to the Share Base Number
divided by an amount equal to (i) the Base Number minus (ii) the Share Base Number.
“Unaccredited Small Option Holder” means each Person who holds one or more Company
Options that are exercisable for a total of 1,000,000 or fewer Common Shares and who is not
an accredited investor (as such term is defined in Regulation D of the Securities Act).
“Unaccredited Shareholder Per Share Adjustment” means a per share amount equal to
the quotient of (i) the number of Common Shares held by Unaccredited Small Option Holders
multiplied by the quotient of $15,000,000 divided by the Base Number, divided by (ii) the
Share Base Number.
4 Except as modified herein, the terms and conditions of the Merger Agreement shall remain
unchanged and are hereby ratified and confirmed. All references to the Merger Agreement from and
after the date herein shall refer to the Merger Agreement as amended by this Amendment.
5. This Amendment shall be governed by and construed in accordance with the internal laws of the
State of Colorado.
6. This Amendment may be executed in any number of counterparts, each of which will constitute an
original and all of which, when taken together, will constitute one agreement. Any signature pages
of this Amendment transmitted in .pdf format or by facsimile will have the same legal effect as an
original executed signature page.
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IN WITNESS WHEREOF, the Acquiror, the Acquiror Sub and the Company have executed and
delivered, or have caused this Amendment to be duly executed and delivered, as of the date first
set forth hereinabove.
| ACQUIROR: | ADVANCED ENERGY INDUSTRIES, INC. | |||||
| By: | /s/ Xx. Xxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Chief Executive Officer | |||||
| ACQUIROR SUB: | NEPTUNE ACQUISITION SUB, INC. | |||||
| By: | /s/ Xxxxxx X. XxXxxxxxx | |||||
| Name: | ||||||
| Title: | Vice President & Corporate Secretary | |||||
| THE COMPANY: | PV POWERED, INC. | |||||
| By: | /s/ Xxxx Xxxxxxxxxxx | |||||
| Name: | ||||||
| Title: | Chairman of the Board | |||||
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