AGREEMENT AND PLAN OF MERGER PURSUANT TO SECTION 251(g) OF THE DELAWARE GENERAL CORPORATION LAW
PURSUANT
TO SECTION 251(g) OF
THE
DELAWARE
GENERAL CORPORATION LAW
This
AGREEMENT AND PLAN OF MERGER (this “Merger Agreement”) is made as of December 7,
2009, by and among XIOM Corp., a Delaware corporation (“XIOM”), Environmental
Infrastructure Holdings Corp., a Delaware corporation and wholly-owned
subsidiary of XIOM (the “Holding Company”), and EIHC Merger Co., a Delaware
corporation and wholly-owned subsidiary of the Holding Company (the “Merger
Company”).
WHEREAS,
XIOM has an authorized capital stock consisting of 50,000,000 shares of Common
Stock, $0.0001 par value per share, of which 23,247,407 are issued and
outstanding and none of which are held in treasury;
WHEREAS,
the Holding Company has an authorized capital stock consisting of 50,000,000
shares of Common Stock, $0.0001 par value per share, of which one (1) share is
issued and outstanding and is owned by XIOM;
WHEREAS,
the Merger Company has an authorized capital stock consisting of one hundred
(100) shares of Common Stock, $0.0001 par value per share, of which one (1)
share is issued and outstanding and is owned by the Holding
Company;
WHEREAS,
the respective Boards of Directors of XIOM, the Holding Company, and the Merger
Company deem it advisable that the Merger Company merge with and into XIOM
pursuant to Section 251(g) of the Delaware General Corporation Law, as amended
(the “DGCL”) and upon the terms and conditions herein provided and, therefore,
have each approved and authorized this Merger Agreement; and
WHEREAS,
the parties intend that the Merger (defined below) constitutes a tax-free
reorganization as defined in Section 368(a)(1)(B) of the Internal Revenue Code
of 1986, as amended (the “Code”), and that this Merger Agreement shall also
constitute a plan of reorganization within the meaning of the
Code. In addition, this Merger is intended to qualify as part of a
tax-free Code Section 351 transfer.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto agree that, in accordance with the DGCL, the
Merger Company shall be merged with and into XIOM in accordance with the
following terms and conditions.
1. The Merger. Effective
upon the filing of this Merger Agreement or a separate certificate of merger, in
such form as is required by the DGCL, with the Secretary of State of the State
of Delaware (the “Effective Time”), the Merger Company shall be merged with and
into XIOM in accordance with Section 251(g) of the DGCL (the “Merger”). As a
result of the Merger, the separate existence of the Merger Company will cease
and XIOM will be the surviving corporation (the “Surviving Company”). From and
after the Effective Time, the Merger will have the effects specified in the
DGCL.
2. Certificate of Incorporation
and By-laws of the Holding Company. The Certificate of Incorporation and
By-laws of the Holding Company immediately following the Effective Time shall
become or remain identical to the Certificate of Incorporation, as amended, and
By-laws, of XIOM, except for the provisions of the Certificate of Incorporation
regarding the corporate name (Article FIRST) and incorporator (Article
NINTH). As of the Effective Time, the Certificate of Incorporation of
the Holding Company shall be amended as follows:
(a)
Article FIRST of the Certificate of Incorporation shall be replaced in its
entirety with the following new Article FIRST:
FIRST:
The name of the corporation is: Environmental Infrastructure Holdings
Corp.
(b)
Article NINTH of the Certificate of Incorporation shall be replaced in its
entirety with the following new Article NINTH:
NINTH:
The incorporator is Xxxxxxxxx X. Xxxxxx, whose mailing address is c/o Xxxxxxxx
Xxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxx 0000X, Xxxxxxxxxxxx, XX
00000. The powers of the incorporator are to file this certificate of
incorporation, approve the by-laws of the corporation and elect the initial
directors.
3. Certificate of Incorporation
of the Surviving Company. The Certificate of Incorporation of XIOM, as
amended and in effect at the Effective Time, shall be the Certificate of
Incorporation of the Surviving Company, until further amended in accordance with
the provisions thereof and applicable law, except that, as of the Effective
Time, the Certificate of Incorporation of XIOM shall be amended as
follows:
(a)
Article FOURTH of the Certificate of Incorporation of the Surviving Company
shall be replaced in its entirety with the following new Article
FOURTH:
FOURTH:
The total number of shares of capital stock which the corporation is authorized
to issue is one (1) share of common stock, par value $0.0001 per
share.
(b)
The following new Article ELEVENTH shall be added to the Certificate of
Incorporation of the Surviving Company to read in its entirety as
follows:
ELEVENTH:
Any act or transaction by or involving the corporation, other than the election
of directors of the corporation, that requires for its adoption under the
Delaware General Corporation Law, as amended, or this Certificate of
Incorporation the approval of the stockholders of the corporation shall,
pursuant to Section 251(g) of the Delaware General Corporation Law, as amended,
require, in addition, the approval of the stockholders of Environmental
Infrastructure Holdings Corp., or any successor by merger, by the same vote as
is required by the Delaware General Corporation Law and/or by this Certificate
of Incorporation.
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4. By-laws of the Surviving
Company. The By-laws of XIOM, as amended and in effect at the Effective
Time, shall be the By-laws of the Surviving Company, without change or amendment
until further amended in accordance with the provisions thereof and applicable
law.
5. Directors and Officers of
the Holding Company. From and after the Effective Time, until successors
are duly elected or appointed and qualified in accordance with applicable law,
the directors and officers of XIOM immediately prior to the Effective Time shall
become or remain the directors and officers of the Holding Company.
6. Directors and Officers of
the Surviving Company. From and after the Effective Time, until
successors are duly elected or appointed and qualified in accordance with
applicable law, the directors and officers of the Merger Company immediately
prior to the Effective Time shall be the directors and officers of the Surviving
Company.
7. Further Assurances.
From time to time, as and when required by the Surviving Company or by its
successors and assigns, there shall be executed and delivered on behalf of the
Merger Company such deeds and other instruments, and there shall be taken or
caused to be taken by it such further actions, as shall be appropriate or
necessary in order to vest or perfect in or to confirm of record or otherwise in
the Surviving Company the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of the Merger Company, and otherwise to carry out the purposes of this
Merger Agreement, and the officers and directors of the Surviving Company are
fully authorized in the name and on behalf of the Merger Company or otherwise to
take any and all such actions and to execute and deliver any and all such deeds
and other instruments.
8. Common Stock of XIOM.
At the Effective Time, by virtue of the Merger and without any action on the
part of any holder thereof, each share of Common Stock, $0.0001 par value per
share, of XIOM outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Common Stock, $0.0001
par value per share, of the Holding Company. The conversion of these shares will
occur by virtue of the Merger and without an exchange of certificates, and each
certificate representing shares of Common Stock of XIOM issued and outstanding
immediately prior to the Merger will, upon completion of the Merger, represent
shares of Common Stock of the Holding Company.
9. Common Stock of the Merger
Company. At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of Common Stock, $0.0001
par value per share, of the Merger Company outstanding immediately prior thereto
shall be changed and converted into one fully paid and nonassessable share of
Common Stock, $0.0001 par value per share, of the Surviving
Company.
10. Common Stock of the Holding
Company Owned by XIOM. At the Effective Time, each share of Common Stock
of the Holding Company owned by XIOM will be canceled, and all rights in respect
thereof will cease.
11. Stock Certificates.
At and after the Effective Time, all of the outstanding certificates that prior
to that time represented shares of Common Stock of XIOM shall be deemed for all
purposes to evidence the same number of shares of Common Stock of the Holding
Company. The registered owner on the books and records of the Holding Company or
its transfer agent of any such stock certificate shall, until such certificate
shall have been surrendered for transfer or conversion or otherwise accounted
for to the Holding Company or its transfer agent, have and 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 Holding Company to
which such person is entitled.
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12. Abandonment. At any
time before the Effective Time, this Merger Agreement may be terminated and the
Merger may be abandoned at the election of the Board of Directors of XIOM if the
Board of Directors shall have determined that the Merger is not in the best
interest of XIOM or its stockholders.
13. Amendment. This
Merger Agreement may be amended at any time before the Merger becomes effective
in a written instrument approved in form and substance by the Board of Directors
of XIOM and executed by all of the parties hereto.
14. Counterparts. This
Merger Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same instrument.
15. Governing
Law. This Merger Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to be duly
executed by their respective authorized officers as of the date first written
above.
| XIOM CORP. | |||
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By:
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| Name: | |||
| Title: | |||
| ENVIRONMENTAL INFRASTRUCTURE HOLDINGS CORP. | |||
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By:
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| Name: | |||
| Title: | |||
| EIHC MERGER CO. | |||
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By:
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| Name: | |||
| Title: | |||
The
Secretary of XIOM Corp. hereby certifies that this Merger Agreement has been
adopted pursuant to Section 251(g) of the Delaware General Corporation Law, as
amended, and that the conditions specified in the first sentence of Section
251(g) have been satisfied.
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By:
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| Name: | |||
| Title: | Secretary | ||
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