EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of December 18, 2002
("Agreement"), between Breakthrough Technology Partners I, Inc., a Delaware
corporation ("Breakthrough"), and California Clean Air, Inc., a Nevada
corporation ("California").
RECITALS
The Board of Directors of Breakthrough has approved a change of legal
domicile to the State of Nevada and a simultaneous change of name as being in
the best interests of the corporation and its shareholders. The change of legal
domicile and change of name through the merger ("Merger") with California will
take place under the terms and conditions set forth in this Agreement.
In consideration of the respective representations, warranties,
covenants and agreements contained in this Agreement, Breakthrough and
California hereby agree as follows:
ARTICLE I
THE MERGER
1.01 THE MERGER. Upon the terms and subject to the conditions of
this Agreement, and in accordance with the relevant provisions of the Delaware
Business Corporation Act ("Delaware Statute") and the Nevada Business
Corporation Act ("Nevada Statute"), respectively, Breakthrough will be merged
with and into California as soon as practicable following the satisfaction or
waiver, if permissible, of the conditions set forth in Article IV of this
Agreement. Following the Merger, California will continue as the surviving
corporation and will continue its existence under the laws of the State of
Nevada, and the separate corporate existence of Breakthrough will cease.
1.02 EFFECTIVE DATE. As soon as practicable following the
satisfaction or waiver, if permissible, of the conditions set forth in Article
IV of this Agreement, the Merger will be consummated by filing with the
Secretaries of State of the States of Delaware and Nevada, respectively,
Articles of Merger, and any other appropriate documents ("Articles of Merger")
in accordance with the Delaware Statute and the Nevada Statute, respectively.
The Merger will become effective at such time as the Articles of Merger are duly
filed, or at such later time as specified in the Articles of Merger (the time
the Merger becomes effective being the "Effective Date").
1.03 EFFECTS OF THE MERGER. The Merger will have the effects
specified in the Delaware Statute and the Nevada Statute, respectively.
1.04 DIRECTORS AND OFFICERS OF CALIFORNIA. After the Effective
Date, the initial directors and officers of California, as the surviving
corporation, will be the following person:
Stephen D. Wilson, President, Secretary, Director
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Such person will serve until his successors will have been duly elected
or appointed and qualified or until their earlier death, resignation or removal
in accordance with California's Certificate of Incorporation and by laws.
ARTICLE II
EXCHANGE OF SHARES
2.01 SHARE EXCHANGE. On the Effective Date by virtue of the
Merger, each share of common stock of Breakthrough held by the shareholders of
Breakthrough will exchanged for one share of the common stock of California.
Promptly after the Effective Date, California will issue to each shareholder of
Breakthrough a certificate representing the common stock to be issued to each
shareholder and simultaneously each shareholder of Breakthrough will exchange
and surrender the certificate representing all of such shareholder's shares in
Breakthrough. At the close of business on the day of the Effective date, the
stock ledger of Breakthrough will be closed.
ARTICLE III
COVENANTS
3.01 FURTHER ACTION. The parties will, subject to the
fulfillment at or before the Effective Date of each of the conditions of
performance set forth in Section IV herein, perform such further acts and
execute such documents as may be reasonably required to effect the Merger.
3.02 MEETING OF BREAKTHROUGH SHAREHOLDERS. Breakthrough will
submit the Merger to its shareholders for their consideration and consent in
accordance with the Delaware Statute and other provisions of applicable law.
Breakthrough will notify California in writing that the consent of the
shareholders has been obtained.
3.03 BEST EFFORTS TO CLOSE. The parties hereto agree to use
their best efforts to close the transactions contemplated hereby as soon as
practicable after the execution of this Agreement.
ARTICLE IV
CONDITIONS TO CONSUMMATION
OF THE MERGER
4.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligations of each party to effect the Merger are
subject to the satisfaction or waiver, where permissible, prior to the Effective
Date, of the following conditions:
(a) This Agreement will have been approved by the affirmative
vote of the shareholders of Breakthrough by the requisite vote in accordance
with applicable law;
(b) No statute, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or permanent), will
have been enacted, entered, promulgated or enforced by any court or governmental
authority which is in effect and has the effect of prohibiting
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the consummation of the Merger; provided, however, that each of the parties will
have used its best efforts to prevent the entry of any injunction or other order
and to appeal as promptly as possible any injunction or other order that may be
entered.
ARTICLE V
MISCELLANEOUS
5.01 ASSIGNMENT, BINDING EFFECT; BENEFIT; ENTIRE AGREEMENT.
Neither this Agreement nor any of the rights, interests or obligations hereunder
will be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement will be binding upon and will inure to
the benefit of the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective heirs, successors, executors,
administrators and assign any rights, remedies, obligations or liabilities under
or by reason of this Agreement. This Agreement and any documents delivered by
the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings (oral and written) among the parties with respect
thereto. No addition to or modification of any provision of this Agreement will
be binding upon any party hereto unless made in writing and signed by all
parties hereto.
5.02 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction will, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement in any other jurisdiction. If any provision,
clause, section or part of this Agreement is so broad as to be unenforceable,
the provision, clause, section or part will be interpreted to be only so broad
as is enforceable, and all other provisions, clauses, sections or parts of this
Agreement which can be effective without such unenforceable provision, clause,
section or part will, nevertheless, remain in full force and effect.
5.03 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Nevada without regard to
its rules of conflict of laws.
5.04 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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5.05 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered will be an original, but all such counterparts will together
constitute one and the same instrument. Each counterpart may consist of a number
of copies of this Agreement each of which may be signed by less than all of the
parties hereto, but together all such copies will constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its respective officers hereunto duly
authorized, all as of the day and year first above written.
BREAKTHROUGH TECHNOLOGY PARTNERS I, INC.
By: /s/ DANIEL M. SMITH
Daniel M. Smith, President
CALIFORNIA CLEAN AIR, INC.
By: /s/ STEPHEN D. WILSON
Stephen D. Wilson, President
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