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:
Xxxxxxx X. Xxxxxx, 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:
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Xxxxxx X. Xxxxx, President
CALIFORNIA CLEAN AIR, INC.
By:
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Xxxxxxx X. Xxxxxx, President
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