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EXHIBIT 2.5
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Plan") is adopted as of April
27, 2001, by and between AIQ Acquisition Corp., a Minnesota corporation
("AIQ"), and Meteor Industries, Inc., a Colorado corporation ("METEOR").
WHEREAS, AIQ is a corporation duly organized and existing under the
laws of the State of Minnesota;
WHEREAS, METEOR is a corporation duly organized and existing under
the laws of the State of Colorado;
WHEREAS, on the date hereof, AIQ has authority to issue 40,000,000
shares of undesignated capital stock, of which 1,000 shares of Common Stock,
par value $.01 per share (the "Minnesota Common Stock") are issued and
outstanding, all of which are owned by METEOR;
WHEREAS, on the date hereof, AIQ also has authority to issue 365,000
shares of Series B Convertible Preferred Stock, par value $1.00 per share (the
"Minnesota Preferred Stock"), none of which has been issued or is outstanding;
WHEREAS, on the date hereof, METEOR has authority to issue 10,000,000
shares of Common Stock, par value $.001 per share (the "Colorado Common
Stock"), of which 3,895,505 shares are issued and outstanding;
WHEREAS, on the date hereof, METEOR has authority to issue 365,000
shares of Series B Convertible Preferred Stock, par value $1.00 per share (the
"Colorado Preferred Stock"), of which 365,000 shares are issued and
outstanding;
WHEREAS, the respective boards of directors of AIQ and METEOR have
determined that, for the purpose of effecting the reincorporation of METEOR in
the State of Minnesota, it is advisable and in the best interests of such
corporations and their respective shareholders that METEOR merge with and into
AIQ upon the terms and conditions herein provided; and
WHEREAS, the respective boards of directors of AIQ and METEOR have
unanimously approved this Plan and have directed that this Plan be submitted
to a vote of their respective shareholders.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, METEOR and AIQ hereby agree to merge as follows:
1. Merger. Subject to the terms and conditions hereinafter set
forth, METEOR shall be merged with and into AIQ, which shall be the surviving
corporation in the merger (the "Merger"). The Merger shall be effective on the
date and at the time properly executed articles of merger consistent with the
terms of this Merger Agreement and Section 302A.615 of the Minnesota Business
Corporations Act (the "MBCA") is filed with the Secretary of State of the
State of Minnesota and a certificate of merger is also filed with the
Secretary of the State of Colorado as required by Section 0-000-000 of the
Colorado Business Corporations Act (the "Effective Time").
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2. Principal Office of AIQ. The principal office of AIQ is 000
Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxx 00000.
3. Corporate Documents. The Articles of Incorporation AIQ, as
in effect immediately prior to the Effective Time, shall continue to be the
Articles of Incorporation of AIQ as the surviving corporation without change
or amendment until further amended in accordance with the provisions thereof
and applicable law. The Bylaws of AIQ, as in effect immediately prior to the
Effective Time, shall continue to be the Bylaws of AIQ as the Surviving
corporation without change or amendment until further amended in accordance
with the provisions thereof and applicable law.
4. Directors and Officers. The directors and officers of METEOR
at the Effective Time shall be and become directors and officers, holding the
same titles and positions, of AIQ at the Effective Time, and after the
Effective Time shall serve in accordance with the Bylaws of AIQ.
5. Succession. At the Effective Time, AIQ shall succeed to
METEOR in the manner of and as more fully set forth in Section 302A.641,
Subdivisions 2 and 3 of the MBCA, and in Section 0-000-000 of the Colorado
Business Corporations Act.
6. Further Assurances. From time to time, as and when required
by AIQ or by its successors and assigns, there shall be executed and delivered
on behalf of METEOR such deeds and other instruments, and there shall be taken
or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest or perfect in or to confer of record
or otherwise in METEOR the title to and possession of all the interests,
assets, rights, privileges, immunities, powers, franchises and authority of
METEOR, and otherwise to carry out the purposes and intent of this Merger
Agreement, and the officers and directors of AIQ are fully authorized in the
name and on behalf of METEOR or otherwise to take any and all such actions and
to execute and deliver any and all such deeds and other instruments.
7. Common Stock of METEOR. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof, each
share of Colorado Common Stock outstanding immediately prior thereto shall be
changed and converted automatically into one fully paid and nonassessable
share of Minnesota Common Stock.
8. Preferred Stock of METEOR. At the Effective Time, by virtue
of the Merger and without any action on the part of the holder thereof, each
share of Colorado Preferred Stock outstanding immediately prior thereto shall
be changed and converted automatically into one fully paid and nonassessable
share of Minnesota Preferred Stock.
9. Stock Certificates. At and after the Effective Time, all of
the outstanding certificates which prior to that time represented shares of
Colorado Common Stock shall be deemed for all purposes to evidence ownership
of and to represent shares of Minnesota Common Stock into which the shares of
the Colorado Common Stock represented by such certificates have been converted
as herein provided. All of the outstanding certificates which prior to the
Effective Time represented shares of Colorado Preferred Stock shall be deemed
for all purposes
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to evidence ownership of and to represent shares of Minnesota Preferred Stock
into which the shares of Colorado Preferred Stock have been converted as
herein provided. The registered owner on the books and records of METEOR or
its transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted
for to AIQ 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 Minnesota Common Stock or Minnesota Preferred
Stock evidenced by such outstanding certificate as above provided.
10. Options. Each option to purchase shares of Colorado Common
Stock granted under METEOR's 1994 Stock Option Plan of METEOR (the "Option
Plan") or its 1998 Incentive Equity Plan (the "Equity Plan"), which are
outstanding at the Effective Time shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into and become an
option to purchase the same number of shares of Minnesota Common Stock at the
same option price per share, and upon the same terms and subject to the same
conditions as set forth in the Plan, as in effect immediately prior to the
Effective Time. The same number of shares of Minnesota Common Stock shall be
reserved for purposes of the Plan as is equal to the number of shares of
Colorado Common Stock so reserved as of the Effective Time. As of the
Effective Time, AIQ hereby assumes both the Option Plan and the Equity Plan
and all obligations of METEOR under such plans, including all outstanding
options, stock appreciation rights and other awards or portions thereof
granted pursuant to such plans.
11. Warrants of METEOR. Each warrant to purchase shares of
Colorado Common Stock that are outstanding at the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become an option to purchase the same number of shares
of Minnesota Common Stock at the same exercise price per share, and upon the
same terms and subject to the same conditions as set forth in each such
warrant. The same number of shares of Minnesota Common Stock shall be reserved
for issuance as is equal to the total number of shares of Colorado Common
Stock issuable upon exercise of all of the warrants to purchase Colorado
Common Stock outstanding at the Effective Time. At the Effective Time, AIQ
assumes all of the obligations of METEOR under all such outstanding warrants
to purchase Colorado Common Stock.
12. Common Stock of AIQ. At the Effective Time, the previously
outstanding 1,000 shares of Common Stock of AIQ registered in the name of
METEOR and which shall, by reason of the Merger, be reacquired by AIQ, shall
be retired and shall resume the status of authorized and unissued shares of
Common Stock of AIQ, and no shares of Minnesota Common Stock or other
securities of AIQ shall be issued in respect thereof.
13. Amendment. At any time before or after approval by the
shareholders of METEOR, this Plan may be amended in any manner (except that
Sections 7 and 8 and any of the other principal terms may not be amended
without the approval of the shareholders of METEOR) as may be determined in
the judgment of the respective Boards of Directors of AIQ and METEOR to be
necessary, desirable or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purposes and intent of this
Merger Agreement.
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14. Abandonment. This Merger Agreement and the Merger
contemplated hereby are subject to approval by the holders of a majority of
the outstanding shares of Colorado Common Stock and Colorado Preferred Stock;
this Agreement shall be terminated and the Merger shall be abandoned unless
they shall have so approved on or before April 16, 2001. At any time before
the Effective Time, this Merger Agreement may be terminated and the Merger
contemplated hereby may be abandoned by the Board of Directors of either
METEOR or AIQ or both, notwithstanding approval of this Merger Agreement by
the sole shareholder of AIQ or the shareholders of METEOR, or both.
15. Rights and Duties of AIQ. At the Effective Time and for all
purposes the separate existence of METEOR shall cease and shall be merged with
and into AIQ which, as the surviving corporation, shall thereupon and
thereafter possess all the rights, privileges, immunities, licenses and
franchises (whether of a public or private nature) of METEOR; and all property
(real, personal and mixed), all debts due on whatever account, all choses in
action, and all and every other interest of or belonging to or due to METEOR
shall continue and be taken and deemed to be transferred to and vested in AIQ
without further act or deed; and the title to any real estate, or any interest
therein, vested in METEOR shall not revert or be in any way impaired by reason
of such Merger; and AIQ shall thenceforth be responsible and liable for all
the liabilities and obligations of METEOR; and, to the extent permitted by
law, any claim existing, or action or proceeding pending, by or against METEOR
may be prosecuted as if the Merger had not taken place, or AIQ may be
substituted in the place of such corporation. Neither the rights of creditors
nor any liens upon the property of METEOR shall be impaired by the Merger. If
at any time AIQ shall consider or be advised that any further assignment or
assurances in law or any other actions are necessary or desirable to vest the
title of any property or rights of METEOR in AIQ according to the terms
hereof, the officers and directors of AIQ are empowered to execute and make
all such proper assignments and assurances and do any and all other things
necessary or proper to vest title to such property or other rights in AIQ, and
otherwise to carry out the purposes of this Merger Agreement.
16. Consent to Service of Process. AIQ hereby irrevocably
appoints the Secretary of the State of Colorado and the successors of such
officer its attorney in the State of Colorado upon whom may be served any
notice, process or pleading in any action or proceeding against it to enforce
against AIQ any obligation of METEOR or to enforce the rights of a dissenting
shareholder of METEOR.
IN WITNESS WHEREOF, this Agreement and Plan of Merger, having first
been duly approved by resolution of the Boards of Directors of METEOR and AIQ,
has been executed on behalf of each of said two corporations by their
respective duly authorized officers.
METEOR INDUSTRIES, INC., AIQ ACQUISITION CORP.,
a Colorado corporation a Minnesota corporation
By: /s/ Xxxxxx X. Names By: /s/ Xxxxxx X. Names
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Xxxxxx X. Names Xxxxxx X. Names
President and CEO Chief Executive Officer
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