EXHIBIT 10.4
PLAN OF MERGER
PLAN OF MERGER ("Plan"), dated as of May 20, 2005, among Cenuco, Inc.,
a Delaware corporation ("Parent"), Hermes Holding Company, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Hermes
Acquisition Company I LLC, a Delaware limited liability company ("Hermes").
Merger Sub and Hermes are sometimes collectively referred to in this Plan as the
"Constituent Entities."
WHEREAS, this Agreement is being entered into to provide for the merger
of Merger Sub with and into Hermes (the "Merger"). Upon the Merger, the separate
existence of Merger Sub shall cease and Hermes shall continue under the laws of
the State of Delaware as the surviving entity; and
WHEREAS, pursuant to the General Corporation Law of Delaware (the
"GCL") and the Limited Liability Company Act of Delaware ("LLC Act"), at the
Effective Time (as defined in Section 1.5), the limited liability company
interests in Hermes ("Interests") will be converted into the number specified in
Section 2.1 hereof of shares of Preferred Stock, par value $.001 per share, of
Parent designated as "Series A Junior Participating Preferred Stock" (the
"Cenuco Preferred Stock") and having the voting powers, preferences and
relative, participating, optional and other special rights, and the
qualifications, limitations or restrictions as set forth in Exhibit F (the
"Certificate of Designation") to the Merger Agreement, dated March 16, 2005,
among Parent, Merger Sub and Hermes, as amended, and subject to adjustment as
provided in Section 2.7 of this Plan.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
THE MERGER
1.1 Certificate of Designation; Certificate of Merger. Immediately
prior to the filing of the certificate of merger referred to in Section 1.5,
Parent shall file the Certificate of Designation with the Secretary of State of
Delaware. Promptly thereafter, Hermes shall file the certificate of merger with
the Secretary of State of Delaware evidencing the merger of the Constituent
Entities.
1.2 The Merger. In accordance with the provisions of this Plan and the
GCL, at the Effective Time, Merger Sub shall be merged with and into Hermes, the
separate existence of Merger Sub shall cease, and Hermes shall thereafter
continue as the surviving entity (the "Surviving Entity") under the laws of the
State of Delaware. The Merger shall have the effects set forth in the GCL and
the LLC Act.
1.3 Certificate of Formation and Operating Agreement. At the Effective
Time, the Certificate of Formation and Limited Liability Company Operating
Agreement of Hermes, as
then in effect, shall continue in effect as the Certificate of Formation and
Operating Agreement of the Surviving Entity in the Merger.
1.4 Members, Managers and Officers. At the Effective Time, (a) Parent
shall become the sole Member of Hermes, (b) the officers and directors of Merger
Sub shall resign their respective positions, and (c) the officers and managers
of Hermes shall continue to serve in their capacities as the officers and
managers of the Surviving Entity until their successors are duly appointed or
elected in accordance with applicable law.
1.5 Effective Time. The Merger shall become effective at the time and
date of the filing of a certificate of merger with the Department of State of
the State of Delaware, or at such later time and date as provided for in such
certificate of merger as may be permitted by the GCL and the LLC Act (such time
and date is referred to in this Plan as the "Effective Time").
ARTICLE II
CONVERSION OF INTERESTS
2.1 Conversion of Interests. At the Effective Time, each one percent
(1%) Interest in Hermes outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any further action by the holder
thereof, be converted into the right to receive that number of shares of Cenuco
Preferred Stock that is equal to the quotient (rounded to the nearest one
hundred thousandth) of which the numerator is equal to the product of (x) 0.65
and (y) number of issued and outstanding shares of Cenuco Common Stock (as
defined in Section 2.6) at the Effective Time and the denominator of which is
equal to 350,000. The shares of Cenuco Preferred Stock to be issued to the
holders of Interests in Hermes upon consummation of the Merger are sometimes
referred to in this Plan as the "Merger Consideration". The Merger Consideration
is subject to adjustment as provided in Section 2.7 of this Plan.
2.2 Merger Sub Common Stock. Each share of Merger Sub's common stock,
par value $.001 per share, issued and outstanding immediately prior to the
Effective Time (each of which is owned by Parent) shall be automatically
cancelled without any consideration in respect thereof. As a result of the
Merger, Parent shall become the owner of all of the outstanding Interests in
Hermes.
2.3 No Transfers. At or after the Effective Time, there shall be no
transfers on the transfer books of Hermes of Interests in Hermes that were
outstanding immediately prior to the Effective Time.
2.4 No Fractional Shares. No fractional shares of Cenuco Common Stock
(as defined in Section 2.6) shall be issued pursuant to Section 2.7(a) of this
Plan. In lieu of the issuance of any fractional share of Cenuco Common Stock
pursuant to Section 2.7(a), cash adjustments shall be paid to former holders of
Interests in respect of any fractional share of Cenuco Common Stock that would
otherwise be issuable.
2.5 Surrender of Interests. Upon delivery to Parent of such documents
as Parent shall reasonably request, each holder of an Interest shall be
entitled to receive promptly after the
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Effective Time in exchange therefor a certificate representing that number of
shares of Cenuco Preferred Stock that such holder has the right to receive
pursuant to this Article II, and the Interest shall be cancelled. Until
converted as contemplated by this Section, each Interest shall be deemed at any
time after the Effective Time to represent only the right to receive the Merger
Consideration with respect to the Interests in Hermes formerly represented
thereby.
2.6 No Appraisal Rights. The parties agree that, in accordance with
Section 262 of the GCL, no appraisal rights will be available to the holders of
shares of Common Stock, par value $.001 per share, of Parent (the "Cenuco Common
Stock") in connection with the Merger.
2.7 Adjustments. (a) (i) As of the date of this Plan, Parent has issued
and outstanding certain warrants, options and other rights to purchase shares of
Cenuco Common Stock (collectively, the "Purchase Rights").
(ii) In addition, certain of the Purchase Rights provide for
an adjustment in the number of shares of Cenuco Common Stock issuable upon
exercise of such Purchase Rights in the event that Parent shall issue, or be
deemed to have issued, certain additional shares of Cenuco Common Stock without
consideration or for a consideration per share less than a specified price (a
"Share Adjustment Provision").
(iii) In the event that, at any time on or after the date that
the shares of Cenuco Preferred Stock are converted into shares of Cenuco Common
Stock (the "Conversion Date"), any Purchase Rights are exercised and Parent is
required to issue additional shares of Cenuco Common Stock to the holder or
holders of Purchase Rights, whether as a result of the exercise of the Purchase
Rights, the operation of the Share Adjustment Provision or otherwise, the Merger
Consideration shall be adjusted to reflect such issuances, as follows: for each
share of Cenuco Common Stock issued to the holders of Purchase Rights pursuant
to the exercise of any such Purchase Rights, the holders of Interests in Hermes
shall be entitled to receive 1.857 shares of Cenuco Common Stock. Such
additional shares of Cenuco Common Stock shall be issued and delivered to the
former holders of Interests in Hermes promptly after they are determined to be
issuable.
(b) In the event that on or after the Conversion Date, there shall be
declared or effected a stock split, reverse stock split, stock dividend or stock
distribution (including any dividend, or distribution, of securities convertible
into Cenuco Common Stock), reorganization, recapitalization, reclassification or
similar event made with respect to Cenuco Common Stock, the number of shares
issuable pursuant to paragraph (a) of this Section 2.7 shall be adjusted to
reflect fully the appropriate effect of such event.
(c) The provisions of this Section 2.7 shall survive the Effective Time
and shall continue in effect so long as any Purchase Rights referred to in this
Section remain outstanding.
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ARTICLE III
APPROVALS, AMENDMENTS AND TERMINATION
3.1 Approvals. This Plan (a) has been adopted and approved by the Board
of Directors of Merger Sub and the Members and managers of Hermes and (b) has
been approved by Parent in its capacity as the sole stockholder of Merger Sub,
in accordance with the GCL. This Plan has not been approved or adopted by the
stockholders of Parent as Parent is not a Constituent Entity to the Merger and
no such approval is required pursuant to the GCL.
3.2 Amendment. At any time prior to the Effective Time and for any
reason, this Plan may be amended by an agreement in writing executed in the same
manner as this Plan, after due authorization thereof by the Board of Directors
of Merger Sub and the managers of Hermes; provided, however, that after approval
of this Plan by the holders of Interests in Hermes, this Plan may not be
amended, without such further approval as is required by law, to the extent that
such amendment would (a) change the amount or kind of shares to be received by
the holders of Interests in Hermes in the Merger, or (b) effect any change that
would adversely affect the rights of the holders of Interests in Hermes under
this Plan.
3.3 Termination. Notwithstanding the adoption of this Plan by the
Constituent Entities, this Plan may be terminated and abandoned at any time
prior to the filing of a certificate of merger by the Secretary of State of
Delaware in the event that the Board of Directors of Merger Sub and the managers
of Hermes shall determine, in their discretion, to do so. Upon any such
termination, this Plan shall become null and void and have no force or effect.
ARTICLE IV
MISCELLANEOUS
4.1 Governing Law. This Plan shall be governed by the laws of the State
of Delaware, without regard to conflict of laws principles.
4.2 Counterparts. This Plan may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement. Facsimile signatures on this Plan
shall be valid and effective for all purposes.
4.3 Further Assurances. If, at any time or times from and after the
Effective Time, the Surviving Entity shall consider or be advised that any
further assignment or assurance is necessary or desirable to vest in the
Surviving Entity the title to any property or rights of Merger Sub or Hermes,
the proper officers of the Surviving Entity are hereby authorized, in the name
of the Surviving Entity or otherwise, to execute and deliver all such
assignments and assurances, and to do all other things necessary or proper to
vest such property or rights in the Surviving Entity and otherwise to carry out
the purposes of this Plan.
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4.4 Successors. The provisions of this Plan shall inure to the benefit
of the successors and assigns of the parties and the holders of Interests in
Hermes, including without limitation, any transferees of such Interests, in
whole or in part.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Plan to be duly
executed and delivered as of the day and year first above written.
CENUCO, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx,
President
HERMES HOLDING COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx,
President
HERMES ACQUISITION COMPANY I
LLC
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Manager
The undersigned hereby certify, pursuant to Sections 264 and 251 of the
GCL and Section 18-209 of the LLC Act, that the foregoing Plan has been adopted
by board of directors and the sole stockholder of Hermes Holding Company, Inc.
and the members and managers of Hermes Acquisition Company I LLC, respectively.
HERMES HOLDING COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx,
President
HERMES ACQUISITION COMPANY I
LLC
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Manager
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