AGREEMENT AND PLAN OF MERGER
Exhibit 10.1
THIS
AGREEMENT AND PLAN OF MERGER, dated as of March 11, 2010 (the “Agreement”),
between Casita Enterprises, Inc., a Nevada corporation (the “Parent”)
and Envision Solar International, Inc., a California corporation, and subsidiary
of the Parent (the “Subsidiary”).
WITNESSETH:
WHEREAS,
the Parent desires to acquire all the assets, and to assume all of the
liabilities and obligations, of the Subsidiary by means of a merger of the
Subsidiary with and into the Parent, with the Parent being the surviving
corporation (the “Merger”);
WHEREAS,
the Parent owns one hundred percent (100%) of the outstanding shares of the
Subsidiary’s stock entitled to vote on a merger;
WHEREAS,
Section 92A.180 of the Nevada Revised Statutes (“NRS”) and
Section 1110 of the California Corporations Code (the “CCC”)
authorize the merger of a subsidiary corporation into a parent
corporation;
WHEREAS,
the Parent shall be the surviving entity (the “Surviving
Corporation”) and continue its existence as a Nevada corporation;
and
WHEREAS,
the Boards of Directors of each of the Parent and the Subsidiary have approved
this Agreement and the consummation of the Merger.
NOW
THEREFORE, the parties hereto hereby agree as follows:
1. The
Merger.
(a) At
the Effective Time (as defined below), (a) the Subsidiary shall be merged with
and into the Parent, (b) the separate existence of the Subsidiary shall cease,
and (c) the Surviving Corporation shall be the surviving entity and continue its
existence as a Nevada corporation.
(b) The
Merger shall become effective upon the filing of (i) an Articles of Merger with
the Secretary of State of the State of Nevada in such form as is required by,
and executed in accordance with, the applicable provisions of the NRS and (b) a
Certificate of Ownership with the Secretary of State of the State of California
in such form as is required by, and executed in accordance with, the applicable
provisions of the California Corporations Code. The time at which the Merger
shall become effective as aforesaid is referred to hereinafter as the “Effective
Time.”
2. Exchange of Capital
Stock. At the Effective Time, each share of common stock, no
par value per share, of the Subsidiary, that is issued and outstanding
immediately prior to the Effective Time, shall not be converted or exchanged and
shall be cancelled into the right to receive one share of common stock, par
value $0.001 per share of the Parent (the “Parent Common
Stock”). Each issued and outstanding share of Parent Common Stock shall
not be converted or exchanged in any manner, but as of the Effective Time shall
represent one share of common stock of the Surviving Corporation.
3. The Surviving
Corporation.
(a) The
Articles of Incorporation of the Parent, in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation, unless and until thereafter amended in accordance with its terms
and applicable law, except that Article First of the Surviving Corporation’s
Articles of Incorporation shall be amended to change the Surviving Corporation’s
name to “Envision Solar International, Inc.” The By-Laws of the
Parent, in effect immediately prior to the Effective Time, shall be the By-Laws
of the Surviving Corporation, unless and until thereafter amended in accordance
with applicable law.
(b) At
the Effective Time the name of the Surviving Corporation shall be Envision Solar
International, Inc.
4. Transfer and Conveyance of
Assets and Assumption of Liabilities.
(a) At
the Effective Time, the Parent shall continue in existence as the Surviving
Corporation; and without further transfer, all the property, rights, privileges,
powers and franchises of the Subsidiary shall vest in the Surviving Corporation
without further act or deed; and all debts, liabilities, obligations,
restrictions, disabilities and duties of the Subsidiary shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Surviving
Corporation; and any claim or judgment against the Subsidiary may be enforced
against the Surviving Corporation in accordance with Section 92A.250 of the
NRS.
(b) 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
Subsidiary, or otherwise carry out the provisions hereof, the proper
representatives of the Subsidiary, as of the Effective Time, shall execute and
deliver any and all proper deeds, assignments and assurances, and do all things
necessary and proper to vest, perfect or convey title to such property or right
in the Surviving Corporation in order to carry out the provisions
hereof.
5. Miscellaneous.
(a) Xxxxxx
Xxxxx, President of the Parent, 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 Parent, any and all documents and
instruments including, without limitation, the Articles of Incorporation of the
Surviving Corporation, and the Articles of Merger and the Certificate of
Ownership, 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.
(b) The
representations, 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.
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(c) 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 Parent and the Subsidiary.
(d) 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.
(e) All
prior or contemporaneous agreements, contracts, promises, representations, and
statements, if any, between the Subsidiary and the Parent, or their
representatives, are merged into this Agreement, and this Agreement shall
constitute the entire understanding between the Subsidiary and the Parent with
respect to the subject matter hereof.
(f) 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.
(g) 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.
(h) 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]
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[SIGANTURE
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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CASITA
ENTERPRISES, INC.
a
Nevada corporation
By:
/s/ Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title: President
ENVISION
SOLAR INTERANTIONAL, INC.
a
California corporation
By:
/s/ Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title: President
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