EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated this 2nd day of June, 2003, is
entered into pursuant to Section 251(g) of the General Corporation Law of
Delaware, among Environmental Power Corporation, a Delaware corporation (the
"Surviving Company"), EPC Holdings 1, Inc., a Delaware corporation ("EPC
Holdings"), and EPC Merger Sub, Inc., a Delaware corporation (the "Transitory
Subsidiary").
RECITALS:
WHEREAS, the Surviving Company is a corporation duly organized and
existing under the laws of the State of Delaware and is authorized to issue (i)
50,000,000 shares of Common Stock, $.01 par value per share ("EPC Common
Stock"), of which 21,791,279 shares are issued and outstanding as of the date
hereof, and 619,014 shares are held in treasury as of the date hereof; and (ii)
2,000,000 shares of preferred stock, $.01 par value per share;
WHEREAS, EPC Holdings is a corporation duly organized and existing
under the laws of the State of Delaware and is authorized to issue (i)
50,000,000 shares of Common Stock, $.01 par value per share ("EPC Holdings
Common Stock"), of which 1,000 shares are issued and outstanding as of the date
hereof; and (ii) 2,000,000 shares of preferred stock, $.01 par value per share;
WHEREAS, the Transitory Subsidiary is a corporation duly organized and
existing under the laws of the State of Delaware and is authorized to issue
1,000 shares of Common Stock, $.01 par value per share of which 1,000 shares are
issued and outstanding as of the date hereof;
WHEREAS, all of the outstanding capital stock of EPC Holdings is held
by the Surviving Company and all of the outstanding capital stock of the
Transitory Subsidiary is held by EPC Holdings;
WHEREAS, the Transitory Subsidiary desires to merge with and into the
Surviving Company, and the Surviving Company desires that the Transitory
Subsidiary be merged with and into it, with the result that the Surviving
Company would be a wholly-owned subsidiary of EPC Holdings, and the current
stockholders of the Surviving Company would become stockholders of EPC Holdings;
WHEREAS, the Boards of Directors of the Surviving Company, EPC Holdings
and the Transitory Subsidiary have adopted resolutions approving this Agreement
and Plan of Merger; and
WHEREAS, the transactions contemplated by this Agreement and Plan of
Merger are intended to qualify as a tax-free transaction under Section 351 of
the Internal Revenue Code of 1986, as amended (the "Code"), and also as a
tax-free merger transaction pursuant to Section 368(a) of the Code.
NOW THEREFORE, in consideration of the foregoing premises and the
undertakings herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Merger. The Transitory Subsidiary shall be merged into the Surviving
Company pursuant to Section 251(g) of the General Corporation Law of Delaware.
The Surviving Company shall survive the merger herein contemplated and shall
continue to be governed by the laws of the State of Delaware. The separate
corporate existence of the Transitory Subsidiary shall cease forthwith upon the
Effective Time (as defined below). The merger of the Transitory Subsidiary into
the Surviving Company shall herein be referred to as the "Merger." The Merger
shall have the effects set forth in Section 259 of the General Corporation Law
of Delaware.
2. Effective Time. The Merger shall be effective upon the filing of
this Agreement and Plan of Merger or a Certificate of Merger with the Secretary
of State of the State of Delaware, which filing shall be made as soon as
practicable after execution of this Agreement and Plan of Merger. The time of
such effectiveness shall herein be referred to as the "Effective Time."
3. EPC Holdings Common Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof, each share of
EPC Holdings Common Stock issued and outstanding immediately prior to the Merger
shall be canceled and shall cease to exist without payment of any consideration
therefor.
4. Common Stock, Options and Warrants of the Surviving Company. At the
Effective Time, by virtue of the Merger and without any action on the part of
the holder thereof, (i) each share of EPC Common Stock issued and outstanding
immediately prior thereto shall be changed and converted into and represent the
right to receive one fully paid and non-assessable share of EPC Holdings Common
Stock, (ii) each share of EPC Common Stock held in treasury shall be cancelled,
and (iii) each unexercised option, warrant or other right to purchase a share of
EPC Common Stock, whether or not exercisable, shall be assumed by EPC Holdings
and shall be deemed to constitute an option, warrant or other right, as the case
may be, to acquire, on the same terms and conditions as were applicable under
such option, warrant or other right immediately prior to the Effective Time, one
share of EPC Holdings Common Stock. The exercise price per share of each such
option, warrant or other right, term, exercisability, vesting schedule, if
applicable, and all of the other terms of such option or warrant shall remain
unchanged. EPC Holdings shall take all corporate action necessary to reserve for
issuance a sufficient number of shares EPC Holdings Common Stock for delivery
upon exercise of the options, warrants or other rights assumed pursuant to this
Section 4. EPC Holdings shall assume the Surviving Company's 1993 Director
Option Plan, 2001 Stock Incentive Plan and 2002 Director Option Plan, as if the
same had been adopted by EPC Holdings, and the options of the Surviving Company
assumed by EPC Holdings pursuant to this Section 4 shall remain subject to such
Plans in all respects.
5. Common Stock of the Transitory Subsidiary. At the Effective Time, by
virtue of the Merger and without any action on the part of the holders thereof,
each share of Common Stock of the Transitory Subsidiary issued and outstanding
immediately prior thereto shall cease to exist and shall be changed and
converted into one fully paid and non-assessable share of the Common Stock, par
value $.01 per share, of the Surviving Company.
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6. Stock Certificates. At and after the Effective Time, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock of the Surviving Company shall be deemed for all purposes to
evidence ownership of and to represent the shares of EPC Holdings into which the
shares of the Surviving Company represented by such certificates have been
converted as herein provided. At and after the Effective Time, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock of the Transitory Subsidiary shall be deemed for all purposes to
evidence ownership of and to represent the shares of the Surviving Company into
which the shares of the Transitory Subsidiary represented by such certificates
have been converted as herein provided. The registered owners on the books and
records of EPC Holdings and Surviving Company or their respective transfer
agents of any such outstanding stock certificates shall 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 EPC Holdings or the Surviving Company
evidenced by such outstanding certificates as above provided. No new
certificates will be issued in respect of shares of EPC Common Stock.
7. Certificate of Incorporation and By-Laws.
(a) Article FIRST of the Certificate of Incorporation of EPC
Holdings in effect on the Effective Time shall be amended in accordance with
Section 251(g) of the General Corporation Law of Delaware to read in its
entirety as follows:
"FIRST: The name of the Corporation is "Environmental Power
Corporation."
(b) The By-Laws of EPC Holdings in effect on the Effective
Time shall continue to be the By-Laws of EPC Holdings until amended in
accordance with the provisions thereof and applicable law, except that the name
of EPC Holdings as set forth therein shall be "Environmental Power Corporation."
(c) The Certificate of Incorporation of the Surviving Company
in effect on the Effective Time shall be amended in accordance with Section
251(g) of the General Corporation Law of Delaware as follows:
(i) Article FIRST of the Certificate of Incorporation
of the Surviving Company
shall be amended to read in its entirety as follows:
"FIRST: The name of the Corporation is "EPC Corporation."
(ii) Article FOURTH of the Certificate of
Incorporation of the Surviving Company
shall be amended to read in its entirety as follows:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 1,000 shares of Common Stock, $.01
par value per share."
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(iii) The Certificate of Incorporation of the
Surviving Company shall be amended, pursuant to the requirements of Section
251(g) of the General Corporation Law of Delaware, to add a new Article ELEVENTH
thereto, to read in its entirety as follows:
"ELEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute and this Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation; provided, however, that any act or transaction by
or involving the Corporation that requires for its adoption under the General
Corporation Law of Delaware or its Certificate of Incorporation the approval of
the stockholders of the Corporation (other than the election or removal of
directors of the Corporation), shall, pursuant to Section 251(g) of the General
Corporation Law of Delaware, require, in addition, the approval of the
stockholders of Environmental Power Corporation, a Delaware corporation which is
a "holding company" with respect to the Corporation (as such term is defined in
Section 251(g) of the General Corporation Law of Delaware), or any successor by
merger, by the same vote as is required by the General Corporation Law of
Delaware or this Certificate of Incorporation.
(d) The By-Laws of the Surviving Company in effect on the
Effective Time shall continue to be the By-Laws of the Surviving Company until
amended in accordance with the provisions thereof and applicable law, except
that the name of the Surviving Company as set forth therein shall be "EPC
Corporation."
(e) The Certificate of Incorporation and the By-Laws of EPC
Holdings in effect on the Effective Time shall continue to be the Certificate of
Incorporation and By-Laws of EPC Holdings until amended in accordance with the
provisions thereof and applicable law.
8. Directors and Officers. The members of the Board of Directors of the
Surviving Company immediately prior to the Effective Time shall become the
members of the Board of Directors of EPC Holdings at the Effective Time. The
officers of the Surviving Company immediately prior to the Effective Time shall
become the officers of EPC Holdings at the Effective Time and shall hold the
same offices in EPC Holdings as they did in the Surviving Company until the
expiration of their respective terms of office and until their successors have
been elected and qualified. The members of the Board of Directors of the
Transitory Subsidiary immediately prior to the Effective Time shall become the
members of the Board of Directors of the Surviving Company at the Effective
Time. The officers of the Transitory Subsidiary immediately prior to the
Effective Time shall become the officers of the Surviving Company at the
Effective Time and shall hold the same offices in the Surviving Company as they
did in the Transitory Subsidiary until the expiration of their respective terms
of office and until their successors have been elected and qualified.
9. Employee Benefit Plans. Effective upon the Effective Time, the
Surviving Company hereby assigns, transfers and conveys to EPC Holdings, and EPC
Holdings hereby accepts and assumes, all of the Surviving Company's rights and
obligations under (i) the 401(k) Savings Plan, adopted effective March 1, 2003,
of the Surviving Company (the "401(k) Plan"), together with all agreements
related thereto, (ii) the Retirement Plan, adopted effective January 1, 1998, of
the Surviving Company (the "Retirement Plan") and (iii) all other employee
benefit plans of the Surviving Company (the "Other Plans"), together with all
agreements related thereto, as if the 401(k) Plan, the Retirement Plan and the
Other Plans had been adopted by EPC Holdings.
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10. Abandonment. At any time prior to the Effective Time, this
Agreement and Plan of Merger may be terminated and the Merger may be abandoned
by the Board of Directors of the Surviving Company, EPC Holdings and the
Transitory Subsidiary or any of them.
11. Amendment. This Agreement and Plan of Merger may be amended by the
Boards of Directors of the Surviving Company, EPC Holdings and the Transitory
Subsidiary at any time prior to the Effective Time.
12. Governing Law. This Agreement and Plan of Merger and the legal
relations among the parties shall be governed by and construed in accordance
with the laws of the State of Delaware.
13. Counterparts. In order to facilitate the filing and recording of
this Agreement and Plan of Merger, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement and Plan of Merger to be executed and attested on its behalf by its
officers thereunto duly authorized, as of the date first above written.
ENVIRONMENTAL POWER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx, President
ATTEST:
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Secretary
EPC HOLDINGS 1, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx, Secretary
EPC MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx, Secretary
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I, Xxxxxx X. Xxxxxx, Secretary of Environmental Power Corporation, a
corporation organized and existing under the laws of the State of Delaware,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached, was adopted by the Board of Directors of Environmental Power
Corporation pursuant to Section 251(g) of the General Corporation Law of
Delaware; and that the conditions specified in the first sentence of Section
251(g) of the General Corporation Law of Delaware have been satisfied.
WITNESS my hand on this 2nd day of June, 2003.
/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Secretary
I, Xxxxxx X. Xxxxxxxxxx, Secretary of EPC Holdings 1, Inc., a
corporation organized and existing under the laws of the State of Delaware,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached, was adopted by the Board of Directors of EPC Holdings, Inc.
pursuant to Section 251(g) of the General Corporation Law of Delaware; and that
the conditions specified in the first sentence of Section 251(g) of the General
Corporation Law of Delaware have been satisfied.
WITNESS my hand on this 2nd day of June, 2003.
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx, Secretary
I, Xxxxxx X. Xxxxxxxxxx, Secretary of EPC Merger Sub, Inc., a
corporation organized and existing under the laws of the State of Delaware,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached, was adopted by the Board of Directors of EPC Merger Sub, Inc.
pursuant to Section 251(g) of the General Corporation Law of Delaware; and that
the conditions specified in the first sentence of Section 251(g) of the General
Corporation Law of Delaware have been satisfied.
WITNESS my hand on this 2nd day of June, 2003.
/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx, Secretary
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