Exhibit 10.1
------------
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of November 14, 2007, is entered into between Certified
Technologies Corporation, a Nevada corporation ("Certified Technologies Nevada")
and Certified Technologies Corporation, a Minnesota corporation (the "Company")
RECITALS
WHEREAS, the board of directors of each of Certified Technologies
Nevada and the Company deems it advisable, upon the terms and subject to the
conditions herein stated, that the Company be merged with and into Certified
Technologies Nevada, and that Certified Technologies Nevada be the surviving
corporation (the "Reincorporation Merger"); and
WHEREAS, this Agreement has been approved by separate vote of the
holders of shares of common stock of the Company ("common stock") at a special
meeting.
NOW, THEREFORE, in consideration of the premises and of the agreements
of the parties hereto contained herein, the parties hereto agree as follows:
ARTICLE I
THE REINCORPORATION MERGER; EFFECTIVE TIME
1.1. The Reincorporation Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.2), the Company shall be merged with and into Certified Technologies
Nevada, whereupon the separate existence of the Company shall cease. Certified
Technologies Nevada shall be the surviving corporation (sometimes hereinafter
referred to as the "Surviving Corporation") in the Reincorporation Merger and
shall continue to be governed by the laws of the State of Nevada. The
Reincorporation Merger shall have the effects specified in the Minnesota
Business Corporation Act of the State of Minnesota as amended (the "MBCA") and
in the Nevada Revised Statutes as amended (the "NRS") and the Surviving
Corporation shall succeed, without other transfer, to all of the assets and
property (whether real, personal or mixed), rights, privileges, franchises,
immunities and powers of the Company, and shall assume and be subject to all of
the duties, liabilities, obligations and restrictions of every kind and
description of the Company, including, without limitation, all outstanding
indebtedness of the Company.
1.2. Effective Time. Provided that the condition set forth in Section
5.1 has been fulfilled or waived in accordance with this Agreement and that this
Agreement has not been terminated or abandoned pursuant to Section 6.1, on the
date of the closing of the Reincorporation Merger, the Company and Certified
Technologies Nevada shall cause Articles of Merger to be executed and filed with
the Secretary of State of Nevada (the "Nevada Articles of Merger") and a
Articles of Merger to be executed and filed with the Secretary of State of
Minnesota (the "Minnesota Articles of Merger") . The Reincorporation Merger
shall become effective upon the date and time specified in the Nevada Articles
of Merger and the Minnesota Articles of Merger (the "Effective Time")
ARTICLE II
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
2.1. The Certificate of Incorporation. The certificate of incorporation
of Certified Technologies Nevada in effect at the Effective Time shall be the
certificate of incorporation of the Surviving Corporation, until amended in
accordance with the provisions provided therein or applicable law.
2.2. The Bylaws. The bylaws of Certified Technologies Nevada in effect
at the Effective Time shall be the bylaws of the Surviving Corporation, until
amended in accordance with the provisions provided therein or applicable law.
ARTICLE III
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION
3.1. Officers. The officers of the Company at the Effective Time shall,
from and after the Effective Time, be the officers of the Surviving Corporation,
until their successors have been duly elected or appointed and qualified or
until their earlier death, resignation or removal.
3.2. Directors. The directors of the Company at the Effective Time
shall, from and after the Effective Time, be the directors of the Surviving
Corporation, until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal.
ARTICLE IV
EFFECT OF MERGER ON CAPITAL STOCK
4.1. Effect of Merger on Capital Stock. At the Effective Time, as a
result of the Reincorporation Merger and without any action on the part of the
Company, Certified Technologies Nevada or the shareholders of the Company:
(a) Each share of common stock (other than shares ("Dissenting Shares")
that are owned by shareholders ("Dissenting Shareholders") exercising
dissenters' rights pursuant to Sections 302A.471 and 473 of the MBCA, issued and
outstanding immediately prior to the Effective Time shall be converted at a
ratio of six (6) shares of common stock, no par value, of the Company for one
(1) share of Certified Technologies Nevada Common Stock, par value $.001
("Nevada Common Stock"), with the same rights, powers and privileges as the
shares so converted and all shares of common stock shall be cancelled and
retired and shall cease to exist. No fractional shares will be issued and all
Nevada Common Stock ownership will be rounded to the nearest full share.
(b) Each option, warrant or other security of the Company issued and
outstanding immediately prior to the Effective Time shall be (i) converted into
and shall be an identical security of Certified Technologies Nevada at the ratio
of six (6) shares of common stock of the Company for one (1) share of Nevada
Common Stock and (ii) in the case of securities to acquire common stock,
converted into the right to acquire shares of Nevada Common Stock on the same
terms and at the same ratio as the common stock of the Company are converted
into Nevada Common Stock, and at a price equal to six (6) times the current
exercise price. The same number of shares of Nevada Common Stock shall be
reserved for purposes of the exercise of such options, warrants or other
securities as is equal to the number of shares of the common stock so reserved
as of the Effective Time.
(c) Each share of Nevada Common Stock owned by the Company shall no
longer be outstanding and shall be cancelled and retired and shall cease to
exist.
4.2. Certificates. At and after the Effective Time, all of the
outstanding certificates which immediately prior thereto represented shares of
common stock (other than Dissenting Shares), options, warrants or other
securities of the Company shall be deemed for all purposes to evidence ownership
of and to represent the shares of the respective Nevada Common Stock, options,
warrants or other securities of Certified Technologies Nevada, as the case may
be, into which the shares of common stock, options, warrants or other securities
of the Company represented by such certificates have been converted as herein
provided and shall be so registered on the books and records of the Surviving
Corporation or its transfer agent. The registered owner of any such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Surviving Corporation or its transfer
agent, have and be entitled to exercise any voting and other rights with respect
to, and to receive any dividends and other distributions upon, the shares of
Nevada Common Stock, options, warrants or other securities of Certified
Technologies Nevada, as the case may be, evidenced by such outstanding
certificate, as above provided.
Further, as soon as practicable after the Effective Date, Corporate
Stock Transfer, Inc. will send shareholders, who hold all of their shares in
certificate form, a letter of transmittal. The letter of transmittal will
contain instructions on how to surrender certificate(s) representing the shares
of common stock of the Company owned to the transfer agent. Upon receipt of such
shareholder's certificate, subject to the aforementioned ratio of six (6) shares
of common stock of the Company for one (1) share of Nevada Common Stock, such
shareholder will be issued a new stock certificate for shares of Nevada Common
Stock.
4.3. Dissenters' Rights. No Dissenting Shareholder shall be entitled to
shares of Nevada Common Stock under this Article IV unless and until the holder
thereof shall have failed to perfect or shall have effectively withdrawn or lost
such holder's right to dissent from the Reincorporation Merger under the MBCA,
and any Dissenting Shareholder shall be entitled to receive only the payment
provided by Section 302A.473 with respect to Dissenting Shares owned by such
Dissenting Shareholder. If any person or entity who otherwise would be deemed a
Dissenting Shareholder shall have failed to properly perfect or shall have
effectively withdrawn or lost the right to dissent with respect to any shares
which would be Dissenting Shares but for that failure to perfect or withdrawal
or loss of the right to dissent, such Dissenting Shares shall thereupon be
treated as though such Dissenting Shares had been converted into shares of
Nevada Common Stock pursuant to Section 4.1 hereof.
ARTICLE V
CONDITION
5.1. Condition to Each Party's Obligation to Effect the Reincorporation
Merger. The respective obligation of each party hereto to effect the
Reincorporation Merger is subject to receipt prior to the Effective Time of the
requisite approval of this Agreement and the transactions contemplated hereby by
the holders of common stock pursuant to the MBCA and the Articles of
Incorporation of the Company.
ARTICLE VI
TERMINATION
6.1. Termination. This Agreement may be terminated, and the
Reincorporation Merger may be abandoned, at any time prior to the Effective
Time, whether before or after approval of this Agreement by the shareholders of
the Company, if the board of directors of the Company determines for any reason,
in its sole judgment and discretion, that the consummation of the
Reincorporation Merger would be inadvisable or not in the best interests of the
Company and its shareholders. In the event of the termination and abandonment of
this Agreement, this Agreement shall become null and void and have no effect,
without any liability on the part of either the Company or Certified
Technologies Nevada or any of their respective shareholders, directors or
officers.
ARTICLE VII
MISCELLANEOUS AND GENERAL
7.1. Modification or Amendment. Subject to the provisions of applicable
law, at any time prior to the Effective Time, the parties hereto may modify or
amend this Agreement; provided, however, that an amendment made subsequent to
the approval of this Agreement by the holders of common stock shall not (i)
alter or change the amount or kind of shares and/or rights to be received in
exchange for or on conversion of all or any of the shares or any class or series
thereof of such corporation, (ii) alter or change any provision of the
certificate of incorporation of the Surviving Corporation to be effected by the
Reincorporation Merger, or (iii) alter or change any of the terms or conditions
of this Agreement it such alteration or change would adversely affect the
holders of any class or series of capital stock of any of the parties hereto.
7.2. Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
7.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEVADA WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
7.4. Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties, with respect to the
subject matter hereof.
7.5. No Third Party Beneficiaries. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
7.6. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is determined by any court or other authority of competent
jurisdiction to be invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted thereof or in order to carry out, so far as may
be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
7.7. Headings. The headings therein are for convenience of reference
only, do not constitute part of this Agreement and shall not be deemed to limit
or otherwise affect any of the provisions hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
written above.
Certified Technologies Corporation
a Nevada corporation
By /s/ Michael Friess
------------------------------------
Name: Michael Friess
Title: Chief Executive Officer
Certified Technologies Corporation
a Minnesota corporation
By /s/ Michael Friess
------------------------------------
Name: Michael Friess
Title: Chief Executive Officer