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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Luna Innovations Inc

Date:

2006

Size:

131KB total

Price:

$67

ID:

#1353371

► Plans ► Agreements ► Agreements & Plans of Merger

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

LUNA INNOVATIONS INCORPORATED,

LUNA TECHNOLOGIES ACQUISITION CORP.,

LUNA TECHNOLOGIES, INC.

AND

THE OTHER PARTIES SIGNATORY HERETO

Dated as of September 30, 2005

TABLE OF CONTENTS


		Page
ARTICLE 1 THE MERGER		1

1.1	The Merger	1
1.2	Effective Time	1
1.3	Effect of the Merger on Constituent Corporations	2
1.4	Certificate of Incorporation and Bylaws of Surviving Corporation	2
1.5	Directors and Officers of Surviving Corporation	2
1.6	Effect on Capital Stock	2
1.7	Fractional Shares	3
1.8	Dissenting Shares	4
1.9	Escrow of Certain Shares of Parent Class B Common Stock Issued in the Merger	4
1.10	Exchange Procedures	6
1.11	No Further Ownership Rights in Company Capital Stock	7
1.12	Lost, Stolen or Destroyed Certificates	7
1.13	Taking of Necessary Action; Further Action	7

ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY		7

2.1	Organization, Good Standing and Qualification	8
2.2	Subsidiaries	8
2.3	Capitalization; Voting Rights	8
2.4	Authorization; Binding Obligations	9
2.5	Financial Statements	9
2.6	Liabilities	9
2.7	Agreements; Action	10
2.8	Obligations to Related Parties	11
2.9	Changes	11
2.10	Title to Properties and Assets; Liens, Etc.	12
2.11	Intellectual Property	12
2.12	Compliance with Other Instruments	13
2.13	Litigation	13
2.14	Tax Returns and Payments	14
2.15	Employees	14
2.16	Obligations of Management	15
2.17	Voting Rights	15
2.18	Compliance with Laws; Permits	15
2.19	Environmental and Safety Laws	15
2.20	Minute Books	15
2.21	Insurance	15
2.22	Tax Elections	15
2.23	Full Disclosure	15
2.24	Brokers	16

-i-

TABLE OF CONTENTS

(Continued)


		Page

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB		16

3.1	Organization and Qualification	16
3.2	Authority Relative to this Agreement	16
3.3	Parent Capitalization	16
3.4	Sub Capitalization	17
3.5	Issuance of Parent Class B Common Stock	17
3.6	Brokers	17
3.7	Compliance with Other Instruments	17

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS		18

4.1	Requisite Power and Authority	18
4.2	Investment Representations	18

ARTICLE 5 ADDITIONAL AGREEMENTS		19

5.1	Put Right	19
5.2	Registration Rights	20
5.3	Market Standoff Agreements	23
5.4	Cooperation in Qualified IPO	23
5.5	Expenses	24
5.6	Additional Documents and Further Assurances	24
5.7	Indemnification	24
5.8	Certain Employee and Benefits Matters	24
5.9	Information Rights	24

ARTICLE 6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES		25

6.1	Survival of Representations, Warranties and Covenants	25
6.2	Indemnification by the Principal Stockholders and the Company	25
6.3	Claims for Indemnification	25
6.4	Objections to Claims; Resolution of Conflicts; Arbitration	26
6.5	Third-Party Claims	27
6.6	Limitations; Maximum Payments; Remedies	28

ARTICLE 7 MISCELLANEOUS PROVISIONS		28

7.1	Notices	28
7.2	Entire Agreement	30
7.3	Post-Closing Cooperation	30
7.4	Amendment and Waiver	30
7.5	Third Party Beneficiaries	30
7.6	No Assignment; Binding Effect	30
7.7	Headings	30

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TABLE OF CONTENTS

(Continued)


		Page
7.8	Invalid Provisions	30
7.9	Governing Law	31
7.10	WAIVER OF TRIAL BY JURY	31
7.11	Construction	31
7.12	Counterparts	31
7.13	Specific Performance	31
7.14	Representation; Waiver of Conflicts	31

ARTICLE 8 DEFINITIONS		32

8.1	Definitions	32
8.2	Construction	38

-iii-

EXHIBITS


Exhibit A		Certificate of Merger
Exhibit B		Amended and Restated Certificate of Incorporation of the Surviving Corporation
Exhibit C		Lost Certificate Affidavit and Indemnity Agreement
Exhibit D		Market Stand-Off Agreement
Exhibit E		Amended and Restated Certificate of Incorporation of Parent

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER is made and entered into as of September 30, 2005, by and among Luna Innovations Incorporated, a Delaware corporation (Parent); Luna Technologies Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent (Sub); Luna Technologies, Inc., a Delaware corporation (the Company); and the Principal Stockholders identified on Annex A hereto. Capitalized terms used and not otherwise defined herein have the meanings given to them in Article 8.

RECITALS

A. The Boards of Directors of each of the Company, Parent and Sub have determined it to be advisable and in the best interests of each company and its respective stockholders that Parent acquire the Company through the statutory merger of the Company with and into Sub (the Merger) and, in furtherance thereof, have approved this Agreement and declared its advisability.

B. The Company, the Principal Stockholders, Parent and Sub desire to make certain representations, warranties, covenants and other agreements in connection with the Merger.

NOW, THEREFORE, in consideration of the covenants, promises, representations and warranties set forth herein, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by the parties), intending to be legally bound hereby, the parties agree as follows:

ARTICLE 1

THE MERGER

1.1 The Merger. At the Effective Time, and upon the terms and subject to the conditions of this Agreement and the applicable provisions of Delaware Law, Sub shall be merged with and into the Company, the separate corporate existence of Sub shall cease, and the Company shall continue as the surviving corporation and as a wholly-owned subsidiary of Parent. The surviving corporation in the Merger is sometimes referred to herein as the Surviving Corporation.

1.2 Effective Time. The parties hereto shall consummate the Merger and the transactions contemplated hereby at a closing (the Closing) to be held immediately after the execution and delivery of this Agreement by the parties hereto at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 11921 Freedom Drive, Suite 600, Reston, Virginia, unless another time and/or place is mutually agreed upon in writing by Parent and the Company. The date upon which the Closing actually occurs is herein referred to as the Closing Date. On the Closing Date, the certificate of merger (the Certificate of Merger), substantially in the form of Exhibit A hereto, shall be duly prepared and executed by the Surviving Corporation and thereafter delivered to the Secretary of State of the State of Delaware for filing, as provided in Section 251 of Delaware Law, on the Closing Date. The parties shall make all other filings required under Delaware Law, and the Merger shall become effective at the time of the filing of the Certificate of Merger with the Secretary of State, or at such later time as may be agreed by Parent and the Company and stated in the Certificate of Merger (the date and time of such filing (or stated later time, if any) being referred to herein as the Effective Time).

1.3 Effect of the Merger on Constituent Corporations. At the Effective Time, the effects of the Merger shall be as provided in the applicable provisions of Delaware Law.

1.4 Certificate of Incorporation and Bylaws of Surviving Corporation.

(a) At the Effective Time, the Certificate of Incorporation of the Surviving Corporation shall be amended and restated in its entirety to read as set forth on Exhibit B hereto, which Exhibit B shall be filed with the Certificate of Merger.

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