Exhibit 2.1 Agreement and Plan of Merger between Fleetclean Systems, Inc. and
ERF Wireless, Inc.
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is made by and between
Fleetclean Systems, Inc., a Texas corporation ("FLSY"), and ERF Wireless, Inc.,
a Nevada corporation ("ERF") as of August 25, 2004.
WHEREAS, FLSY desires to merge with and into ERF for the purpose of changing its
corporate domicile to Nevada, subject to the terms and conditions of this
Agreement;
WHEREAS, FLSY is an Exchange Act reporting company that has filed all required
reports with the Securities and Exchange Commission.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is acknowledged FLSY and ERF agree as follows.
The term "Effective Date" shall mean any time subsequent to August 30, 2004 on
which the merger becomes effective in accordance with the laws of the State of
Nevada, the laws of the State of Texas or the rules and regulations of NASDAQ
Market Operations OTC Bulletin Board Coordinator.
Each of the following events shall occur on, before, concurrent with, or as soon
as reasonably possible following the "Effective Date" of the merger between ERF
and FLSY.
1. FLSY or the "Corporation" shall have filed with the Texas Secretary of State
an Amendment to its Articles of Incorporation to cause a reverse split of the
Corporation's $.01 par value common stock whereby every seventy five (75) shares
of common stock which are issued and outstanding are automatically converted
into one (1) share of $.01 par value common stock; provided, however, that the
Corporation shall issue one (1) full share of $.01 par value common stock to its
stockholders for any fractional interest remaining after conversion of all
outstanding shares pursuant hereto.
2. ERF shall cause one share of its capital stock to be promptly issued for each
outstanding share of the capital stock of FLSY and shall cause new stock options
and/or stock purchase warrants to be issued to replace any that are outstanding
immediately prior to the merger.
3. ERF shall have coordinated the implementation of the reverse stock split of
FLSY common shares, including obtaining a new CUSIP number, preparing a press
release, complying with Rule 10b-17, informing NASDAQ Market Operations OTC
Bulletin Board Coordinator, coordinating with the company's transfer agent, and
the Depository Trust Corporation.
REPRESENTATIONS AND WARRANTIES.
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As of the date of this Agreement, ERF has one share of common stock issued and
outstanding.
At closing, the authorized capital of ERF as stated in its Articles of
Incorporation shall read as follows:
The total number of shares of stock of all classes which the
Corporation shall have authority to issue is Five Hundred Million
(500,000,000), of which Twenty Five Million (25,000,000) shall be
shares of Preferred Stock with a par value of $0.001 per share
("Preferred Stock"), and Four Hundred Seventy Five Million
(475,000,000) shall be shares of Common Stock with a par value of
$0.001 per share ("Common Stock").
As of the date of this Agreement, FLSY has 25,105,460 shares of its $.01 par
value common stock issued and outstanding, 1,000,000 shares of its $.01 par
value Series A Convertible Preferred Stock issued and outstanding, and certain
stock purchase warrants that grant the holder the option to purchase up to
880,000 shares of common stock at $.20 per share until December 31, 2007. The
warrants contain cashless exercise provisions and anti-dilution protection. The
Series A Convertible Preferred Stock and the warrants will not be adjusted by
the 75:1 reverse stock split of FLSY common shares.
OTHER PROVISIONS
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1. At the Effective Date all stockholders of FLSY shall surrender their old
shares of capital stock to the executive offices of the surviving corporation
located at 000 Xxxxxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000, Telephone: 000.000.0000,
Facsimile: 281.538.2155 for new shares of capital stock of the surviving
corporation and the certificates shall reflect both the change in corporate
domicile and the effect of the 75:1 reverse split of the corporation's common
stock.
2. The Bylaws of ERF shall be the Bylaws of the Surviving corporation following
the merger.
3. Immediately following the merger, Xxxxxxx X. Xxxx shall resign as an officer
of ERF. Xx. Xxxx'x status as an officer and director of ERF was a mere formality
for the purpose of completing the change of domicile of the publicly traded FLSY
from Texas to Nevada.
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Further Assurances. At any time and from time to time, after the effective date,
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
Waiver. Any failure of any party to this Agreement to comply with any of its
obligations, agreements, or conditions hereunder may be waived in writing by the
party to whom such compliance is owed. The failure of any party to this
Agreement to enforce at any time any of the provisions of this Agreement shall
in no way be construed to be a waiver of any such provision or a waiver of the
right of such party thereafter to enforce each and every such provision. No
waiver of any breach of or non-compliance with this Agreement shall be held to
be a waiver of any other or subsequent breach or non-compliance.
Headings. The paragraph and subparagraph headings in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Governing Law. This Agreement shall be governed by the laws of the United
States, State of Nevada.
Binding Effect. This Agreement shall be binding upon the parties hereto and
inure to the benefit of the parties, their respective heirs, administrators,
executors, successors, and assigns.
Entire Agreement. This Agreement contains the entire agreement between the
parties hereto and supersedes any and all prior agreements, arrangements, or
understandings between the parties relating to the subject matter of this
Agreement. No oral understandings, statements, promises, or inducements contrary
to the terms of this Agreement exist. No representations, warranties, covenants,
or conditions, express or implied, other than as set forth herein, have been
made by any party.
Severability. If any part of this Agreement is deemed to be unenforceable the
balance of the Agreement shall remain in full force and effect.
Amendment. This Agreement may be amended only by a written instrument executed
by the parties or their respective successors or assigns.
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Facsimile Counterparts. A facsimile, telecopy or other reproduction of this
Agreement may be executed by one or more parties hereto and such executed copy
may be delivered by facsimile of similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all parties
agree to execute an original of this Agreement as well as any facsimile,
telecopy or other reproduction hereof.
Time is of the Essence. Time is of the essence of this Agreement and of each and
every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
Fleetclean Systems, Inc., a Texas corporation
By: /S/ R. XXXX XXXXX
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Name: R. Xxxx Xxxxx
Title: Chief Executive Officer
ERF Wireless, Inc.
By: /S/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: President
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