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Title: |
Agreement and Plan of Merger |
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Entities: |
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Date: |
2007 |
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Size: |
Preview shows 36KB of 204KB total |
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Price: |
$82 |
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ID: |
#2998689 |
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Start of Preview |
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
INCENTRA SOLUTIONS, INC.
INCENTRA HELIO ACQUISITION CORP.
HELIO SOLUTIONS, INC.
AND
DAVID CONDENSA,
AS SHAREHOLDERS? REPRESENTATIVE
Dated as of August ___, 2007
TABLE OF CONTENTS
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Page |
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RECITALS |
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10 | |
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ARTICLE I |
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THE MERGER |
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11 | |
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Section 1.1 |
The Merger |
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11 |
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Section1.2 |
Closing |
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11 |
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Section 1.3 |
Effective Time |
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11 |
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Section 1.4 |
Effects of the Merger |
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11 |
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Section 1.5 |
Certificate of Incorporation and By-Laws of the Surviving Corporation |
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11 |
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Section 1.6 |
Directors and Officers |
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12 |
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ARTICLE II |
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MERGER CONSIDERATION; EFFECT ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES |
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12 | ||
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Section 2.1 |
Merger Consideration |
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12 |
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Section 2.2 |
Fractional Shares |
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18 |
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Section 2.3 |
Exchange of Certificates |
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18 |
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Section 2.4 |
Certain Adjustments |
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19 |
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Section 2.5 |
Shares of Dissenting Shareholders |
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20 |
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Section 2.6 |
Tax-Free Reorganization |
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20 |
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ARTICLE III |
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REPRESENTATIONS AND WARANTIES OF THE COMPANY |
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20 | ||
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Section 3.1 |
Organization, Standing and Corporate Power |
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21 |
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Section 3.2 |
Subsidiaries |
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21 |
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Section 3.3 |
Capital Structure |
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21 |
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Section 3.4 |
Authority; Noncontravention |
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22 |
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Section 3.5 |
Financial Statements; Undisclosed Liabilities |
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23 |
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Section 3.6 |
Material Contracts |
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25 |
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Section 3.7 |
Permits; Compliance with Applicable Laws |
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27 |
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Section 3.8 |
Absence of Litigation |
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28 |
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Section 3.9 |
Tax Matters |
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28 |
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Section 3.10 |
Employee Benefit Plans |
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30 |
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Section 3.11 |
Labor Matters |
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33 |
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Section 3.12 |
Environmental Matters |
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34 |
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Section 3.13 |
Intellectual Property |
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35 |
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Section 3.14 |
Insurance Matters |
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38 |
Page 2
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Section 3.15 |
Transactions with Affiliates |
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38 |
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Section 3.16 |
Voting Requirements |
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38 |
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Section 3.17 |
Brokers |
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38 |
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Section 3.18 |
Real Property |
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38 |
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Section 3.19 |
Tangible Personal Property |
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39 |
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Section 3.20 |
Powers of Attorney |
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39 |
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Section 3.21 |
Offers |
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39 |
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Section 3.22 |
Warranties |
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40 |
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Section 3.23 |
Investment Company |
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40 |
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Section 3.24 |
Board Approval |
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40 |
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Section 3.25 |
Books and Records |
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40 |
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Section 3.26 |
Status of Shares Being Transferred |
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40 |
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Section 3.27 |
Investment in Parent Common Stock |
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40 |
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Section 3.28 |
Disclosure |
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41 |
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Section 3.29 |
No Shareholder Competing Business |
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42 |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES OF PARENT |
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42 | ||
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Section 4.1 |
Organization; Standing and Corporate Power |
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42 |
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Section 4.2 |
Capital Structure |
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43 |
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Section 4.3 |
Authority; Noncontravention |
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43 |
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Section 4.4 |
Parent Documents |
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44 |
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Section 4.5 |
Voting Requirements |
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44 |
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Section 4.6 |
Brokers |
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45 |
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Section 4.7 |
Board Approval |
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45 |
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Section 4.8 |
Books and Records |
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45 |
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Section 4.9 |
Sarbanes Oxley Act Compliance |
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45 |
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Section 4.10 |
Additional Representations |
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45 |
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Section 4.11 |
Litigation |
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46 |
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Section 4.12 |
Compliance |
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46 |
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Section 4.13 |
Contracts with Third Parties |
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46 |
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Section 4.14 |
Disclosure |
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46 |
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ARTICLE V |
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COVENANTS RELATING TO CONDUCT OF BUSINESS |
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47 | ||
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Section 5.1 |
Conduct of Business by the Company |
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47 |
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Section 5.2 |
Advice of Changes |
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48 |
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Section 5.3 |
No Solicitation by the Company |
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48 |
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Section 5.4 |
Conduct of Business by Parent |
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49 |
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Section 5.5 |
Transition |
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49 |
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ARTICLE VI |
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ADDITIONAL AGREEMENTS |
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49 | ||
Page 3
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Section 6.1 |
Access to Information; Confidentiality |
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49 |
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Section 6.2 |
Commercially Reasonable Efforts |
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50 |
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Section 6.3 |
Fees and Expenses |
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51 |
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Section 6.4 |
Public Announcements |
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51 |
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Section 6.5 |
Regulation D |
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51 |
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Section 6.6 |
Shareholders Covenant Not to Compete |
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52 |
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Section 6.7 |
Parent Audit of Company |
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52 |
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ARTICLE VII |
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CONDITIONS PRECEDENT |
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52 | ||
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Section 7.1 |
Conditions to Each Party?s Obligation to Consummate the Merger |
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52 |
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Section 7.2 |
Conditions to Obligations of Parent and Merger Sub |
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53 |
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Section 7.3 |
Conditions to Obligations of the Shareholders |
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55 |
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Section 7.4 |
Frustration of Closing Conditions |
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56 |
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ARTICLE VIII |
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INDEMNIFICATION; ARBITRATION |
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57 | ||
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Section 8.1 |
Survival of Representations and Warranties |
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