EXHIBIT 2.1
EHIBIT 2.1
THIS AGREEMENT AND PLAN OF XXXXXX (hereinafter called the "Merger
Agreement") is made effective as of June 5, 1998, by and between Electric City
Corp., a Delaware corporation ("Electric"), and Pice Products Corp., a Delaware
corporation ("Pice"). Electric and Pice are sometimes referred to as the
"Constituent Corporations", with reference to the following facts:
A. The authorized capital stock of Electric consists of thirty million
(30,000,000) shares of $.0001 par value common stock and five million
(5,000,000) shares of preferred stock. The authorized capital stock of Pice
consists of twenty million (20,000,000) shares of common stock, $.001 par value.
B. There are currently 10,000,000 shares of stock of Electric
outstanding.
C. Pice has no subsidiaries, and has a total of 8,180,900 shares of
$.001 par value common stock issued and outstanding, and there are no options or
other rights to acquire any newly issued shares available to any person.
D. The directors of the Constituent Corporations deem it advisable and
to the advantage of such corporations that Pice merge into Electric upon the
terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of merger
encompassed by this Merger Agreement and do hereby agree that Pice shall merge
with and into Electric on the following terms, conditions, and other provisions:
1. TERMS AND CONDITIONS
1.1 Merger. Pice shall be merged with and into Electric (the "Merger"),
and Electric shall be the surviving corporation (the "Surviving Corporation")
effective upon the date when this Merger Agreement or a Certificate of Merger is
filed with the Secretary of State of Delaware (the "Effective Date").
1.2 Succession. On the Effective Date, Electric shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of Pice, except insofar as it may be
continued by operation of law, shall be terminated and cease.
1.3 Transfer of Assets and Liabilities. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; and all
singular rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, of each of the
Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
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of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their stockholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgments as if the Merger bad not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
1.4 Manner of Accomplishing Merger. The Merger shall be accomplished by
way of the exchange of 100% (8,180,900 shares) of the issued and outstanding
shares of Pice for common stock of Electric, at the ratio of one share of
Electric for each 13.635 shares of Pice outstanding on the Effective Date of the
Merger (1 for 13.635). The transfer agent will automatically be instructed to
issue new certificates of Electric, based on the above ratio, to each of the
shareholders of Pice, at the address listed in the register of Pice
shareholders. No fractional shares will be issued, but each fractional share
will be rounded up to the next share and a certificate for Electric will be
issued to each record bolder of Pice accordingly. The exchange will be
accomplished pursuant to an exemption from registration provided by Regulation
D. Section 504 in each state where said exemption or a registration of the
issuance can be accomplished. In each state where an exemption from registration
is not available pursuant to Rule 504 of Regulation D or some other available
exemption from registration which can be reasonably complied with, Electric
shall issue cash in lieu of the exchanged securities of Pice at $.01 per share
exchanged.
1.5 Rights of Appraisal. This Merger shall be subject to the rights of
appraisal granted to the shareholders of Pice in accordance with the General
Corporation Law of the State of Delaware. Should more than ten percent (10%) of
the shareholders of Pice, regardless of the number of shares owned, seek to
enforce their rights of appraisal, Electric at its sole option may terminate
this Agreement and all parties relieved of any obligation pursuant to this
Agreement. The Board of Directors of Electric and the shareholders of Electric
have already approved the Merger.
1.6 Obligations of Pice Not to Issue its Securities. As of the date of
this Merger Agreement and until the date of closing, Pice shall not issue any
additional shares of its common stock to any person or entity whatsoever,
including as a result of having previously issued any warrants to acquire common
stock, any options to acquire its securities as a result of any employee stock
option plan or otherwise, or pursuant to any employee benefit plan. Pice further
represents that the capitalization, as set forth in paragraph C of the preamble
to this Agreement, is true and accurate in all respects
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2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of Electric in effect on the Effective Date shall continue to be
the Certificate of Incorporation of the Surviving Corporation. The Bylaws of
Electric shall be the Bylaws of the Surviving Corporation, as they may be
amended from time to time.
2.2 Directors. The directors of Electric immediately preceding the
Effective Date shall become the directors of the Surviving Corporation on and
after the Effective Date to serve until the expiration of their terms and until
their successors are elected and qualified.
2.3 Officers. The officers of Electric immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
3. MISCELLANEOUS
3.1 Further Assurances. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Pice such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action as
shall be appropriate or necessary in order to vest or perfect in of to conform
of record or otherwise, in the Surviving Corporation the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of Pice and otherwise to carry out the purposes of this
Merger Agreement, and the officers and directors of the Surviving Corporation
are fully authorized in the name and on behalf of Pice or otherwise to take any
and all such action and to execute and deliver any and all such deeds and other
instruments.
3.2 Amendment. At any time before or after approval by the stockholders
of Pice, this Merger Agreement may be amended in any manner (except that, after
the approval of the Merger Agreement by the stockholders of Pice, the principal
terms may not be amended without the further approval of the stockholders of
Pice) as may be determined in the judgment of the respective Board of Directors
of Electric and Pice to be necessary, desirable, or expedient in order to
clarify the intention or the parties hereto or to effect or facilitate the
purpose and intent or this Merger Agreement.
3.3 Conditions to Merger. The obligation of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law):
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(a) the Merger shall have been approved by the stockholders of
Pice in accordance with applicable provisions of the General Corporation Law of
the State of Delaware; and
(b) any and all consents, permits, authorizations, approvals,
and orders deemed in the sole discretion of Pice to be material to consummation
of the Merger shall have been obtained; and
(c) the securities issued by Electric shall be issued pursuant
to an exemption from registration pursuant to the Securities Act of 193 3 (as
amended), Regulation D, Section 504, and the shareholders who reside in certain
states which comport with said Regulation D, Section 504, or other tandem
exemptions from registration, may receive unrestricted securities in exchange
for the securities of Pice and
(d) an audit of the books and records of Pice, conducted in
accordance with generally accepted accounting practices, shall have been
delivered to and approved by Electric; and
(e) any other requirements under applicable Delaware law shall
have been satisfied in connection with the Merger.
3.4 Abandonment or Deferral. At any time before the Effective Date,
this Merger Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of either Pice or Electric or both, notwithstanding the
approval of the Merger by the stockholders of Pice or Electric, or the
consummation of the Merger may be deferred for a reasonable period of time if,
in the opinion of the Boards of Directors of Pice and Electric, such action
would be in the best interest of such corporations. In the event of termination
of this Merger Agreement, this Merger Agreement shall become void and of no
effect and there shall be no liability on the part of either Constituent
Corporation or its Board of Directors or stockholders with respect thereto.
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3.5 Counterparts. In order. to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
IN WITNESS WHERE OF, this Merger Agreement, having first been duly
approved by the Board of Directors of Pice and Electric, is hereby executed on
behalf of cash said corporation and attested by their respective officers
thereunto duly authorized.
PICE PRODUCTS CORP.,
a Delaware corporation
By: /s/Xxxx X. Xxxxxxx
--------------------------------------
ATTEST: Xxxx X. Xxxxxxx, Sole Director
______________________________________
______________________________________
Secretary
ELECTRIC CITY CORP.,
a Delaware corporation
By: /s/Xxxxxx C, Xxxxxx
--------------------------------------
ATTEST: Xxxxxx C, Marino, Chairman and
Chief Executive Officer
______________________________________
______________________________________
Secretary
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CONSENT
OF
DIRECTORS OF
ELECTRIC CITY CORP.
The undersigned, being all of the directors of Electric City Corp. (the
"Company"), hereby consent to the adoption of the following resolutions as the
actions of the Company:
RESOLVED, that the terms and conditions or the Agreement. and
Plan of Merger between the Company and Pice Products Corp.
dated effective as of _________________, 1998, a copy of which
is attached to this Consent, is hereby approved and deemed to
be in the best interests of the Company, and;
FURTHER RESOLVED, that the officers of the Company are hereby
directed to take all action deemed necessary to carry out the
Agreement and Plan of Merger upon receipt of all the requisite
approvals, including but not limited to the appointment of a
transfer agent, preparation of all necessary state and federal
filings to register the shares and/or to obtain exemptions
from registration for such shares and the issuance of the
shares as required by the Agreement and Plan of Merger.
Dated: Effective as of ______________________, 1998.
ELECTRIC CITY CORP.,
a Delaware Corporation
______________________________________
Xxxxxx X. Xxxxxx, Director
______________________________________
Director
______________________________________
Director
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UNANIMOUS CONSENT
OF
SHAREHOLDERS OF
ELECTRIC CITY CORP.
The undersigned, being all of the shareholders of Electric City Corp.
(the "Company"), hereby consent to the adoption of the following:
1. The Agreement and Plan of Merger between the Company
and Pice Products Corp. dated effective as of June
___, 1998, a copy of which is attached to this
Consent, is hereby approved, confirmed and ratified
in all respects.
Dated: Effective as of June ____, 1998.
ELECTRIC CITY CORP.,
a Delaware Corporation
XXXX MANUFACTURING L.L.C.
By: ____________________________
Its: ____________________________
NLCVC L.L.C.
By: ____________________________
Its: ____________________________
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NOTICE TO SHAREHOLDERS
OF
PICE PRODUCTS CORPORATION
Delaware General Corporation Law ss.228(d) requires notice to be given
to all non-consenting shareholders of action taken by less then unanimous
consent under ss.228(a). On _________________________, 1998, under Delaware
General Corporation Law ss.228 - Consent of Shareholders in Lieu of a Meeting,
90% of the shareholders of Pice Products Corp. entitled to vote, consented to
the adoption of the Agreement and Plan of Merger between Pice Products Corp. and
Electric City Corp., dated effective as of _________________________, 1998.
Pursuant to ss.262 of the Delaware General Corporation Law, all
non-consenting shareholders are entitled to appraisal of his or her shares in
accordance with the procedures outlined in ss.262, a copy of which is attached.
Sincerely,
Xxxxxx X. Xxxxxx
Chairman of Electric City Corp.
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CERTIFICATE (ARTICLES) OF MERGER OF
PICE PRODUCTS CORP.
WITH AND INTO
ELECTRIC CITY CORP.
Pice Products Corp. and Electric City Corp. certify that:
1. The name and state of' incorporation of each of the constituent
corporations are:
(a) Pice Products Corp., a Delaware corporation (Acquired
corporation)
(b) Electric City Corp., a Delaware corporation (Acquiring
corporation)
2. An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the provisions of' subsection (c) of Section 252 of the General
Corporation Law of the State of Delaware.
3. The Board of Directors of both constituent corporations unanimously
approved the Agreement and Plan of Merger. The Unanimous Consent of the
shareholders of Electric City Corp. was given on June ___, 1998. The transaction
was approved by Consent of Shareholders of Pice Products Corp., under Delaware
General Corporation Law ss.228, dated June ___, 1998 by shareholders holding
7,362,810 shares, which is 90% of the 8,180,900 shares entitled to vote. Only a
majority of shares were required; therefore, the Agreement and Plan of Merger
was approved by the required vote. Notice of Action Taken was mailed to all Pice
Products Corp.
shareholders pursuant to ss.262(d)(2) of the Delaware General Corporation Law.
4. The name of the surviving corporation is Electric City Corp., a
Delaware corporation.
5. The Certificate of Incorporation dated _____________, 1998, of
Electric City Corp. shall be the Certificate of Incorporation of the surviving
corporation.
6. The complete executed Agreement and Plan of Merger on file at the
principal place of business of Electric City Corp. located at 000 Xxxxx
Xxxxxxxxx Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000.
7. A copy of the Agreement and Plan of Merger will be furnished by
Electric City Corp. on request and without cost, to any shareholder of the
constituent corporations.
8. Electric City Corp. hereby irrevocably appoints the Delaware
Secretary of State as its agent to accept service of process in any suit or
proceeding. A copy of such process shall be mailed by the Secretary of State to
Electric City Corp, located at 000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx 00000.
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IN WITNESS WHEREOF, the corporations have hereunto set their hands and
seals.
Dated this ___ day of June, 1998.
PICE PRODUCTS CORP.
a Delaware corporation
By: _____________________________
Xxxx X. Xxxxxxx, Sole Director
ACKNOWLEDGED:
By: ______________________ [SEAL]
_____________, Secretary
ELECTRIC CITY CORP.
a Delaware Corporation
By: _____________________________
Xxxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
ACKNOWLEDGED:
By: ______________________ [SEAL]
_____________, Secretary
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