FORM OF AGREEMENT AND PLAN OF MERGER BETWEEN A Delaware Domestic Corporation AND A Marshall Islands Corporation
Exhibit
2.1
FORM
OF
BETWEEN
A
Delaware Domestic Corporation
AND
A
Xxxxxxxx Islands Corporation
This
Agreement and Plan of Merger (this “Agreement”) made and entered into on this
______ day of __________, 2008, by and between Energy Infrastructure Acquisition
Corp., a Delaware corporation (“EIAC”)
and
Energy Infrastructure Merger Corporation, a Xxxxxxxx Islands corporation
(“MergerCo,”
together with EIAC, the “Constituent
Corporations”).
WITNESSETH:
WHEREAS,
EIAC is
a corporation organized and existing under the laws of the State of Delaware,
its Certificate of Incorporation having been filed in the Office of the
Secretary of State of the State of Delaware (the “Secretary
of State”)
on
11th August 2005, the first amended and restated Certificate of Incorporation
of
EIAC having been filed with the Secretary of State on 6th February 2006, the
second amended and restated Certificate of Incorporation of EIAC having been
filed with the Secretary of State on 6th June 2006, and the third amended and
restated Certificate of Incorporation of EIAC having been filed with the
Secretary of State on 10th July 2006; and
WHEREAS,
MergerCo is a corporation organized and existing under the laws of the Republic
of the Xxxxxxxx Islands, its Articles of Incorporation having been filed in
the
Office of the Registrar of Corporations (the “Registrar”) of the Republic of the
Xxxxxxxx Islands on 30th November 2007; and
WHEREAS,
the
aggregate number of shares which EIAC has authority to issue is Ninety Million
(90,000,000), of which Eighty-Nine Million (89,000,000) are common shares,
par
value $0.0001, and One Million (1,000,000) are Preferred Stock, par value
$0.0001, of which 21,750,398 shares of common stock are issued and outstanding;
WHEREAS,
the
aggregate number of shares which MergerCo has authority to issue is One Hundred
Twenty Million (120,000,000), of which One Hundred Nineteen Million
(119,000,000) are common shares, par value $0.0001, and One Million (1,000,000)
are Preferred Stock, par value $0.0001, of which 100 shares of common stock
are
issued and outstanding and have all voting power; and
WHEREAS,
the
Board of Directors of each of the Constituent Corporations deems it advisable
that EIAC be merged with and into MergerCo (the “Merger”)
on
terms and conditions hereinafter set forth, in accordance with the applicable
provisions of the statutes of the State of Delaware and the Republic of the
Xxxxxxxx Islands, respectively, which permit such Merger;
NOW,
THEREFORE,
in
consideration for the premises and of the agreements, covenants and provisions
hereinafter contained, the Constituent Corporations, by their respective Board
of Directors, have agreed and do hereby agree, each with the other as
follows:
1
ARTICLE
I
Principal
Terms of Merger
Merger.
The Constituent Corporations shall be merged into a single corporation, in
accordance with the applicable provisions of the laws of the Republic of the
Xxxxxxxx Islands and the State of Delaware, by EIAC merging with and into
MergerCo, which shall be the surviving corporation (the “Surviving
Corporation”).
Effective
Time of Merger.
The Merger shall be effective as of the completion of all filing requirements
specified in Sections 6.03 and 6.04 of this Agreement, and such date and time
is
hereinafter referred to as the “Effective Time”.
ARTICLE
II
Articles
of Incorporation, Bylaws and Directors
Articles
of Incorporation.
The Articles of Incorporation of MergerCo, in effect at the Effective Time
and
in the form attached hereto as Exhibit A, shall be the Articles of Incorporation
of the Surviving Corporation, to remain unchanged until amended as provided
by
law.
Bylaws.
The Bylaws of MergerCo in effect at the Effective Time shall be the Bylaws
of
the Surviving Corporation, to remain unchanged until amended as provided by
law.
Directors.
At the Effective Time, the number of directors of MergerCo shall be nine, and
the names, and respective classes of the directors who shall act until their
successors are duly elected and qualified are:
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Name
|
Position
|
|
Captain
Xxxxxxx Xxxxxx Xxxxxx Vanderperre
|
Chairman
of the board of directors and Class C Director
|
|
Xxxx
Xxxxx
|
Class
C Director
|
|
Xxxxxx
Xxxxxxxxxxxxx
|
Class
A Director
|
|
Xxxxxxxxx
Xxxxxx
|
Class
B Director
|
|
Class
A Director
|
|
|
Class
A Director
|
|
|
Class
B Director
|
|
|
Class
B Director
|
|
|
Class
C Director
|
ARTICLE
III
Conversion
of Securities
The
manner of converting the outstanding shares of each of the Constituent
Corporations shall be as follows.
2
Conversion
of EIAC Shares.
At the Effective Time, each share of the EIAC common stock issued and
outstanding immediately prior to the Effective Time shall be converted
automatically into one share of the Surviving Corporation common shares (the
“Conversion Ratio”), subject to any adjustments made pursuant to Section 3.05
hereof. At the Effective Time, all such shares of EIAC common stock shall cease
to be outstanding and shall automatically be canceled and shall cease to exist.
Each certificate previously evidencing EIAC common stock shall be exchanged
for
a certificate representing such number of shares of the Surviving Corporation
common shares calculated by multiplying the Conversion Ratio by the number
of
shares of EIAC common stock previously evidenced by the canceled certificates
upon the surrender of such certificate.
Conversion
of Stock Rights.
At the Effective Time the options, warrants and other rights to purchase EIAC
common stock (collectively, “EIAC Stock Rights”) then outstanding shall be
converted into one substantially equivalent option, warrant or other right
to
purchase the Surviving Corporation common shares (collectively, the “Surviving
Corporation Share Rights”), except that (i) each of the Surviving Corporation
Share Rights will be exercisable for that number of whole shares of the
Surviving Corporation common shares equal to the product of the number of shares
of EIAC common stock that were issuable upon exercise of such option or warrant
immediately prior to the Effective Time multiplied by the Conversion Ratio
and
rounded down to the nearest whole number of shares of the Surviving Corporation
common shares, and (ii) the per share exercise price for the shares of the
Surviving Corporation common shares issuable upon exercise of such Surviving
Corporation Share Rights will be equal to the quotient determined by dividing
the exercise price per share of EIAC common stock at which each such option
or
warrant was exercisable immediately prior to the Effective Time by the
Conversion Ratio, rounded down to the nearest whole cent. At the Effective
Time,
the EIAC Stock Rights shall cease to be outstanding and shall automatically
be
canceled and shall cease to exist.
Cancellation
of EIAC Shares.
At the Effective Time, all shares of EIAC common stock that are owned by EIAC
as
treasury stock and each share of EIAC common stock owned by any direct or
indirect wholly owned subsidiary of EIAC immediately prior to the Effective
Time
shall by virtue of the Merger and without any action on the part of the holder
thereof, automatically be cancelled and shall cease to exist, and no cash or
other consideration shall be delivered or deliverable in exchange
therefor.
Cancellation
of MergerCo Shares.
At the Effective Time, the one hundred issued and outstanding shares of MergerCo
common stock held by EIAC immediately prior to the Effective Time, shall by
virtue of the Merger and without any action on the part of the holder thereof,
automatically be cancelled and shall cease to exist, and no cash or other
consideration shall be delivered or deliverable in exchange
therefor.
Conversion
Ratio Adjustments.
The Conversion Ratio shall be adjusted to reflect fully the effect of any stock
split, reverse split, stock dividend (including any dividend or distribution
of
securities convertible into MergerCo common shares or EIAC common stock),
reorganization, recapitalization or other like change with respect to MergerCo
common shares or EIAC common stock occurring after the date hereof and prior
to
the Effective Time, so as to provide holders of EIAC common stock and MergerCo
common shares the same economic effect as contemplated by this Agreement prior
to such stock split, reverse split, stock dividend, reorganization,
recapitalization or like change.
3
ARTICLE
IV
Representations
and Warranties
Representations
and Warranties of MergerCo.
MergerCo hereby makes the following representations and warranties to EIAC
as of
the date hereof and as of the Effective Time (unless otherwise
indicated):
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(a)
|
Corporate
Existence and Power.
MergerCo is a corporation duly formed, validly existing and in good
standing under and by virtue of the Laws of the Republic of the Xxxxxxxx
Islands, and has all power and authority, corporate and otherwise,
and all
governmental licenses, franchises, permits, authorizations, consents
and
approvals required to own and operate its properties and assets and
to
carry on its business as now
conducted.
|
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(b)
|
Corporate
Authorization.
The execution, delivery and performance by MergerCo of this Agreement
and
the consummation by MergerCo of the transactions contemplated hereby
are
within its corporate powers and have been duly authorized by all
necessary
action on the part of MergerCo, including the approval of its sole
stockholder. This Agreement constitutes a valid and legally binding
agreement of MergerCo, enforceable against the same in accordance
with its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, or (ii) rules of law governing
specific performance, injunctive relief or other equitable remedies.
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(c)
|
Charter
Documents; Legality.
MergerCo has previously delivered to EIAC true and complete copies
of its
Articles of Incorporation, minute books and stock books (the “MergerCo
Charter Documents”), as in effect or constituted on the date hereof. The
execution, delivery, and performance by MergerCo of this Agreement
and any
additional agreement to which the same is to be a party has not violated
and will not violate, and the consummation by MergerCo of the transactions
contemplated hereby or thereby will not violate, any of the MergerCo
Charter Documents or any law or
order.
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|
(d)
|
Litigation.
There is no action (or any basis therefor) pending against, or to
the
knowledge of MergerCo, threatened against or affecting MergerCo,
any of
its officers or directors, any stockholder, or any action before
any court
or arbitrator or any governmental body, agency or official or which
in any
manner challenges or seeks to prevent, enjoin, alter or delay the
transactions contemplated hereby. There are no outstanding judgments
against MergerCo.
|
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(e)
|
Compliance
with Laws.
MergerCo is not in violation of, has not violated, and to the knowledge
of
MergerCo, is not under investigation with respect to, nor has been
threatened to be charged with or given notice of, any violation or
alleged
violation of, any law or order, nor is there any basis for any such
charge.
|
4
Representations
and Warranties of EIAC. EIAC
hereby makes the following representations and warranties to MergerCo as of
the
date hereof and as of the Effective Time (unless otherwise
indicated):
|
(a)
|
Corporate
Existence and Power.
EIAC is a corporation duly formed, validly existing and in good standing
under and by virtue of the Laws of the State of Delaware, and has
all
power and authority, corporate and otherwise, and all governmental
licenses, franchises, permits, authorizations, consents and approvals
required to own and operate its properties and assets and to carry
on its
business as now conducted.
|
|
(b)
|
Corporate
Authorization.
The execution, delivery and performance by EIAC of this Agreement
and the
consummation by EIAC of the transactions contemplated hereby are
within
its corporate powers and have been duly authorized by all necessary
action
on the part of EIAC, other than the approval of its stockholders.
This
Agreement constitutes a valid and legally binding agreement of EIAC,
enforceable against the same in accordance with its terms, subject
to (i)
laws of general application relating to bankruptcy, insolvency and
the
relief of debtors, or (ii) rules of law governing specific performance,
injunctive relief or other equitable
remedies.
|
|
(c)
|
Charter
Documents; Legality.
EIAC has previously delivered to MergerCo true and complete copies
of its
Certificate of Incorporation, by-laws, minute books and stock books
(the
“EIAC Charter Documents”), as in effect or constituted on the date hereof.
The execution, delivery, and performance by EIAC of this Agreement
and any
additional agreement to which the same is to be a party has not violated
and will not violate, and the consummation by EIAC of the transactions
contemplated hereby or thereby will not violate, any of the EIAC
Charter
Documents or any law or order.
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|
(d)
|
Litigation.
There is no action (or any basis therefor) pending against, or to
the
knowledge of EIAC, threatened against or affecting EIAC, any of its
officers or directors, any stockholder, or any action before any
court or
arbitrator or any governmental body, agency or official or which
in any
manner challenges or seeks to prevent, enjoin, alter or delay the
transactions contemplated hereby. There are no outstanding judgments
against EIAC.
|
|
(e)
|
Compliance
with
Laws.
EIAC is not in violation of, has not violated, and to the knowledge
of
EIAC, is not under investigation with respect to, nor has been threatened
to be charged with or given notice of, any violation or alleged violation
of, any law or order, nor is there any basis for any such
charge.
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ARTICLE
V
Conditions
Precedent
The
obligation of each of the Constituent Corporations to effectuate the Merger
is
subject to the following conditions:
5
Stockholder
Approval.
The
stockholders of EIAC and MergerCo shall have adopted this Agreement in
accordance with the requirements of the laws of the State of Delaware and the
Republic of the Xxxxxxxx Islands.
Share
Purchase Agreement.
Other
than the consummation of the Merger, all conditions precedent to the performance
of each of the parties to that certain Amended and Restated Share
Purchase
Agreement, dated February 6, 2008 (as may be amended or amended and restated
from time to time, the “Share Purchase Agreement”), by and among EIAC, MergerCo
and Vanship
Holdings Limited, shall have been satisfied or waived.
ARTICLE
VI
Adoption
and Termination
Submission
to Vote of Stockholders.
This Agreement shall be submitted to the stockholders of EIAC and MergerCo,
respectively, as provided by applicable law, and shall take effect, and be
deemed to be the Agreement of the Constituent Corporations, upon the approval
or
adoption thereof by said stockholders of EIAC and MergerCo, respectively, in
accordance with the requirements of the laws of the State of Delaware and the
Republic of the Xxxxxxxx Islands.
Termination
of Agreement.
This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time, notwithstanding the adoption of this Agreement by the
stockholders of the Constituent Corporations, by mutual written agreement of
the
Constituent Corporations, or unilaterally by one party to this Agreement if
the
other party to this Agreement materially breaches one of its material
representation and warranties or fails to comply with a condition in this
Agreement. In
the
event of termination of this Agreement
by
either
of the Constituent Corporations, this Agreement
will
become void and there shall be no further obligation on the part of either
Constituent Corporation. No party shall be relieved from liability for any
breach of this Agreement.
Filing
of Certificate of Merger in Delaware.
As soon as practicable after the satisfaction of the conditions precedent set
forth in Article V hereof, a Certificate of Merger to effectuate the terms
of
this Agreement shall be executed by the Surviving Corporation and shall be
delivered to the Secretary of State for filing and recording in accordance
with
applicable law, unless this Agreement has been terminated pursuant to Section
6.02 hereof, and the Surviving Corporation shall thereafter make all other
filings or recordings required by Delaware law in connection with the
Merger.
Filing
of Articles of Merger in the Xxxxxxxx Islands.
As soon as practicable after the satisfaction of the conditions precedent set
forth in Article V hereof, Articles of Merger to effectuate the terms of this
Agreement shall be executed by each of the Constituent Corporations and shall
be
delivered to the Registrar in accordance with Xxxxxxxx Islands law, unless
this
Agreement has been terminated pursuant to Section 6.02 hereof and the Surviving
Corporation shall thereafter make all other filings, payments or recordings
required by Xxxxxxxx Islands law in connection with the Merger.
6
ARTICLE
VII
Post
Merger Undertakings
The
Surviving Corporation agrees that it may be served with process in the State
of
Delaware, and in the Republic of the Xxxxxxxx Islands, in any proceeding for
enforcement of any obligation of any Constituent Corporation of Delaware, as
well as for enforcement of any obligation of the Surviving Corporation arising
from this Merger, including any suit or other proceeding to enforce the rights
of any stockholders as determined in appraisal proceedings pursuant to the
provisions of Section 262 of the DGCL, and irrevocably appoints the Secretary
of
State as its agent to accept service of process in any such suit or proceeding.
The Secretary of State shall mail any such process to the Surviving Corporation
at [●].
[Signature
page follows]
7
IN
WITNESS WHEREOF, each of the Constituent Corporations, pursuant to the approval
and authority duly given by resolutions adopted by their respective Boards
of
Directors, has caused this Agreement to be executed by an authorized officer
of
each party thereto.
| ENERGY INFRASTRUCTURE | ||
| ACQUISITION CORP. of Delaware | ||
| |
|
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| By: | ||
|
Name: |
||
| Title: | ||
| ENERGY INFRASTRUCTURE MERGER CORPORATION of the Xxxxxxxx Islands | ||
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| By: | ||
|
Name: |
||
| Title: | ||
8
SECRETARY’S
CERTIFICATE
I,
[●],
Secretary of Energy Infrastructure Acquisition Corp., a corporation organized
and existing under the laws of the State of Delaware, hereby certify, as such
Secretary of the said corporation, that:
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1.
|
The
Agreement and Plan of Merger to which this certificate is attached,
after
having been first duly signed on behalf of said corporation by an
authorized officer of Energy Infrastructure Acquisition Corp., a
corporation of the State of Delaware, was duly submitted to the
stockholders of Energy Infrastructure Acquisition Corp., at a special
meeting of said stockholders duly called and held separately from
the
meeting of stockholders of any other corporation for the purpose
of
considering and taking action upon said Agreement and Plan of
Merger;
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2.
|
[●]
shares of stock of said corporation were on said date issued and
outstanding;
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3.
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The
holders of [●] shares voted by ballot in favor of said Agreement and Plan
of Merger;
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4.
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The
holders of [●] shares voted by ballot against
same;
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5.
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The
affirmative vote represents a majority of the total number of shares
of
the outstanding capital stock of said corporation; and
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6.
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Thereby,
the Agreement and Plan of Merger was at said meeting adopted as the
act of
the stockholders of Energy Infrastructure Acquisition Corp., and
the duly
adopted agreement of said
corporation.
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WITNESS
my hand
on behalf of Energy Infrastructure Acquisition Corp. on this _____ day of
_________, ________.
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| By: | ||
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Name: |
||
| Title: Secretary | ||
9
