EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 15, 2000, by and
among Windsor Capital Corp., a Delaware corporation ("Purchaser"), WCC
Acquisition Corp., a Delaware corporation to be formed as a wholly owned
subsidiary of Purchaser ("Sub") and Energy Control Technology, Inc. a Delaware
corporation (the "Company").
In consideration of the representations, warranties, agreements and
conditions herein contained, and intending to be legally bound, Purchaser, Sub
and the Company hereby agree as follows:
ARTICLE I
[RESERVED]
ARTICLE II
THE MERGER
SECTION 2.01 The Merger. At the Effective Time, upon the terms and
subject to the conditions hereof, and in accordance with the provisions of the
Delaware General Corporation Law (the "Corporate Code") and the Certificate of
Incorporation and By-Laws of the Company and Sub, the Company shall be merged
with and into Sub (the "Merger"). Following the Merger, the Sub shall continue
as the surviving corporation (the "Surviving Corporation") under the name
"Energy Control Technology, Inc." and shall continue its existence under the
laws of the State of Delaware, and the separate corporate existence of the
Company shall cease.
SECTION 2.02 Stockholders' Meeting/Consent; Proxy Statement.
(a) If approval by Purchaser's stockholders is required by applicable
law in order to consummate the Merger, Purchaser, acting through its Board of
Directors, shall in accordance with applicable law, its Certificate of
Incorporation and By-Laws:
(i) duly call, give notice of, convene and hold a special
meeting (the "Special Meeting") of its stockholders or present the
written consent for signature of the number of shareholders legally
necessary for approval (the "Consent") as soon as practicable following
the expiration of the Offer for the purpose of considering and taking
action upon this Agreement;
(ii) subject to its fiduciary duties under applicable laws,
include in any proxy or information statement (the "Proxy Statement")
required with respect to the
Special Meeting or Consent the recommendation of its Board of Directors
that its stockholders vote in favor of the approval and adoption of
this Agreement and the transactions contemplated hereby; and
(iii) if necessary, use its reasonable efforts (1) to obtain
and furnish the information required to be included by it in the Proxy
Statement, (2) to file the Proxy Statement with the SEC; (3) after
consultation with the other parties hereto, respond as promptly as is
reasonably practicable to any comments made by the SEC with respect to
the Proxy Statement and any preliminary version thereof, (4) cause the
Proxy Statement to be mailed to its stockholders at the earliest
practicable time, and (5) subject to the fiduciary duties of its Board
of Directors under applicable laws, to obtain the necessary approval of
the merger by its stockholders. The information provided and to be
provided by the Company, Purchaser and Sub for use in the Proxy
Statement shall, as of the date of mailing of the Proxy Statement and
as of the date of the Special Meeting or submission of the Consent, not
include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(b) At the Special Meeting or in the Consent, all of the Purchaser
Shares beneficially owned by the Board of Directors of Purchaser or their
affiliates shall be voted in favor of approval and adoption of this Agreement
and the transactions contemplated hereby.
SECTION 2.03 Consummation of the Merger. As soon as practicable after
the satisfaction or waiver of the conditions set forth in Article VII, the
parties hereto will cause a duly executed and acknowledged certificate of
merger, or certificate of ownership and merger if permitted by the Corporation
Law of the State of Delaware (the "Merger Certificate"), to be filed with the
Secretary of State of Delaware, and the parties hereto shall take all such other
and further actions as may be required by law to make the Merger effective. The
Merger shall become effective on the date on which the Merger Certificate has
been duly filed with the Delaware Secretary of State (such time is hereinafter
referred to as the "Effective Time").
SECTION 2.04 Effects of the Merger. The Merger shall have the effects
set forth in the Corporation Law of the State of Delaware. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all the
properties, rights, privileges, powers and franchises of the Company and Sub
shall vest in the Surviving Corporation, and all debts, liabilities and duties
of the Company and Sub shall become the debts, liabilities and duties of the
Surviving Corporation. As of the Effective Time, Sub shall be a wholly owned
subsidiary of Purchaser.
SECTION 2.05 Certificate of Incorporation and By-Laws. Subject to
Section 6.06 (indemnification), the Certificate of Incorporation and the By-Laws
of Sub in effect at the Effective Time shall be the Certificate of Incorporation
and By-Laws of the Surviving Corporation until amended in accordance with
applicable law; provided that Article I of the Certificate of Incorporation of
the Surviving Corporation shall be amended as of the Effective Time to read "The
name of the corporation is "Energy Control Technology, Inc.".
SECTION 2.06 Directors and Officers. The directors of the Company at
the Effective Time shall be the directors of the Surviving Corporation and the
officers of the Company at the Effective Time shall be the officers of the
Surviving Corporation, in each case until their respective successors are duly
elected (or appointed in the case of officers) and qualified.
SECTION 2.07. Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of Purchaser, Sub, the
Company or the holder of any of the following securities:
(a) Each Share of the Company's common stock, $.01 par value (the
"Shares") issued and outstanding immediately prior to the Effective Time (other
than Shares to be canceled pursuant to Section 2.07(b) and Dissenting Shares (as
hereinafter defined)), shall by virtue of the Merger and without any action on
the part of the holder thereof be canceled and extinguished and be converted
into the right to receive one share of Purchaser's common stock, $.001 par value
(the "Purchaser Stock") (the "Merger Consideration").
(b) Each Share which is issued and outstanding immediately prior to the
Effective Time and held by Purchaser or Sub or any direct or indirect subsidiary
of Purchaser or Sub, or which is held in the treasury of the Company or any of
its subsidiaries, shall be canceled and retired and no payment shall be made
with respect thereto.
(c) Each share of Common Stock, par value $.001 per share, of Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into and become one validly issued, fully paid and nonassessable
shares of Common Stock, par value $.01 per share (or such other value as may be
determined by Sub) of the Surviving Corporation.
SECTION 2.08 Stock Options
All outstanding options to purchase Company Shares (the "Company
Options") shall be converted at the Effective Time into options to purchase
equal amounts of Purchaser Stock on the same terms and conditions contained in
the Company Options. For 90 days following the Effective Time, holders of
options and warrants to purchase
Purchaser Stock shall be entitled to exchange such options and warrant for new
options and warrants to purchase Purchaser Stock on the same terms and
conditions contained in the Company Options, including a $.50 per share exercise
price and expiration in 2005, except that such new options and warrants shall
cover .463 shares of Purchaser Stock for each share of Purchaser Stock covered
in the old options and warrants (subject to appropriate adjustment in the event
of a change in the reverse stock split ratio pursuant to Section 7.03).
ARTICLE III
DISSENTING SHARES; PAYMENT FOR SHARES
SECTION 3.01 Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, Shares outstanding immediately prior to the Effective
Time and held by holders who did not vote in favor of the Merger and who comply
with all of the relevant provisions of Section 262 of the Corporate Code (the
"Dissenting Shares") shall not be converted into the right to receive the Merger
Consideration, unless and until such holders shall have failed to perfect or
shall have effectively withdrawn or lost their rights to appraisal. If, after
the Effective Time, any such holder fails to perfect or withdraw or otherwise
loses such right, each of such holder's Shares shall thereupon be deemed to have
been converted into the right to receive, as of the Effective Time, the Merger
Consideration without any interest thereon. The Company shall give Sub prompt
notice of any demands received by the Company for appraisal of Shares, and,
prior to the Effective Time, Sub shall have the right to participate in all
negotiations and proceedings with respect to such demands. Prior to the
Effective Time, the Company shall not, except with the prior written consent of
Sub, make any payment with respect to, or settle or offer to settle, any such
demands.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser and Sub as follows:
SECTION 4.01 Organization and Qualification. The Company and each
subsidiary of the Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation, has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted and is duly qualified to do
business as a foreign corporation and in good standing in each jurisdiction in
which the character of its properties or the nature of its business makes such
qualification necessary, except where the failure to be so organized, existing,
qualified or in good standing or have such power and authority would not have a
Material Adverse Effect (as defined in Section 9.10).
SECTION 4.02 Capitalization. The authorized capital stock of the
Company consists of 20,000,000 Common Shares, par value $0.01 per share (the
"Shares") and 2,000 shares of Preferred Stock, par value $0.01 per share
("Preferred Shares"). No Preferred Shares are outstanding. All of the
outstanding Shares have been duly authorized and validly issued and are fully
paid and nonassessable and free of preemptive rights. As of the date of this
Agreement, (i) 9,332,600 Shares are issued and outstanding, (ii) no Shares are
held in the Company's treasury and (iii) 553,000 Shares are reserved for
issuance pursuant to options outstanding under the Company's Stock Option Plan
(the "Company Plan"). Except pursuant to the Company Plans, there are not as of
the date hereof any outstanding or authorized subscriptions, options, warrants,
calls, rights, commitments or any other agreements of any character obligating
the Company to issue any additional Shares or any other shares of capital stock
of the Company or any other securities convertible into or evidencing the right
to subscribe for any Shares. Except as provided herein, there are no outstanding
obligations of the Company or any of its subsidiaries to repurchase, redeem or
otherwise acquire any Shares.
SECTION 4.03 Authority Relative to this Agreement. The Company has all
requisite corporate power and authority to execute and deliver this Agreement
and, subject to the terms and conditions hereof, to consummate the transactions
contemplated hereby (provided that the Merger is subject to the provisions of
Section 2.02 and to the applicable provisions of the Corporate Code regarding
any requisite approval by the stockholders of the Company). The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate the transactions so
contemplated (other than the merger, which is subject to the approval of the
stockholders of the Company as contemplated by Section 2.02 and to the
applicable provisions of the Corporate Code). This Agreement has been duly and
validly executed and delivered by the Company and, assuming this Agreement
constitutes a valid and binding obligation of each of Purchaser and Sub, this
Agreement constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
SECTION 4.04 Financial Statements. The Company has furnished to the
Purchaser copies of the Company's unaudited financial statements (including the
balance sheets and related statements of income and retained earnings and cash
flow), as of and for the year ended October 31, 2000 (the "Financial
Statements"). The Financial Statements have been prepared (i) in accordance with
generally accepted
accounting principles, consistently applied throughout the periods involved,
(ii) in accordance with the books and records of the Company and (iii) so as to
present fairly the financial position of the Company as of the dates of, and the
results of the Company's operations for the periods covered by, such statements.
SECTION 4.05 Disclosure of Liabilities. The Company has no liabilities
or obligations, direct or contingent, of any nature other than (i) as fully
reflected or as specifically reserved against on the Financial Statements, (ii)
liabilities incurred in the ordinary course of business since October 31, 2000,
which, in the aggregate, do not result in any material adverse change in the
financial condition of the Company from that set forth in the October 31, 2000,
balance sheet, and (iii) liabilities and obligations expressly disclosed in this
Agreement.
SECTION 4.06 Absence of Certain Changes. Except as disclosed in writing
to Purchaser by the Company, since October 31, 2000, the Company and its
subsidiaries have not suffered any Material Adverse Effect.
SECTION 4.07 The Company's business plan dated November 5, 2000, is a
true and accurate representation of the current status of the Company's business
and the Company's current good faith projections regarding its future business.
SECTION 4.08 Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by the Company nor the consummation by
the Company of the transactions contemplated hereby will (except as disclosed by
the Company on schedule 4.06):
(a) subject to the obtaining of any requisite approval of the Company's
stockholders, conflict with any provision of the Certificate of Incorporation or
By-Laws of the Company;
(b) require any consent, approval, authorization or permit of, or
filing with or notification to, any United States federal or state governmental
or regulatory authority, except (i) in connection with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations thereunder, (iii) pursuant to state laws relating to
takeovers and state securities laws, (iv) the filing of the Merger Certificate
pursuant to the Corporate Code, or (v) where the failures to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not in the aggregate have a Material Adverse Effect; or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company or its subsidiaries, except for violations
which, in the aggregate, would not have a Material Adverse Effect.
SECTION 4.09 Brokerage Fees and Commissions. No person or entity is
entitled to receive from the Company any investment banking, brokerage or
finder's fee in connection with this Agreement or the transactions contemplated
hereby based upon arrangements made by or on behalf of the Company.
SECTION 4.11 Litigation. Except as set forth on Schedule 4.08, there is
no claim, suit, action, proceeding or investigation pending or, to the knowledge
of the Company, threatened against the Company or affecting the assets of the
Company.
SECTION 4.09 Intellectual Property. The Company owns, or is licensed or
otherwise has the right to use all patents, patent rights, trademarks, rights,
trade names, trade name rights, service marks, service ▇▇▇▇ rights and
copyrights currently used in the conduct of its business.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND SUB
Purchaser and Sub represent and warrant to the Company as follows:
SECTION 5.01 Organization and Qualification. Purchaser, Sub and each
subsidiary of Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted and is duly qualified to do
business as a foreign corporation and in good standing in each jurisdiction in
which the character of its properties or the nature of its business makes such
qualification necessary, except where the failure to be so organized, existing,
qualified or in good standing or have such power and authority would not have a
Material Adverse Effect (as defined in Section 9.10).
SECTION 5.02 Capitalization. The authorized capital stock of the
Purchaser consists of 25,000,000 Shares and 10,000,000 shares of Preferred
Stock, par value $.01 per share ("Preferred Shares"). No Preferred Shares are
outstanding. All of the outstanding Shares have been duly authorized and validly
issued and are fully paid and nonassessable and free of preemptive rights. As of
the date of this Agreement, (i) 9,999,053 shares of Purchaser Stock are issued
and outstanding, (ii) 728,334 shares of Purchaser Stock are reserved for
issuance pursuant to the options outstanding under the Purchaser's Stock Option
Plans, and (iii) 552,500 shares of Purchaser Stock are reserved for issuance
pursuant to the outstanding Warrants to purchase Purchaser Stock. A detailed
description of Shares reserved for issuance pursuant to the Stock Option Plans
and the Warrants is set forth on Schedule 5.02 attached hereto. Except for the
Warrants as set forth in this Section 5.02 and pursuant to the Stock Option
Plans, there are not as of the date hereof any outstanding or authorized
subscriptions, options, warrants, calls, rights, commitments or any other
agreements of any character
obligating Purchaser to issue any additional Shares or any other shares of
capital stock of Purchaser or any other securities convertible into or
evidencing the right to subscribe for any Shares. Except as provided herein,
there are no outstanding obligations of Purchaser or any of its subsidiaries to
repurchase, redeem or otherwise acquire any Shares. Immediately prior to the
Effective Time, and after giving effect to the reverse stock split set forth in
Section 7.03 (subject to adjustment of the ratio set forth in Section 7.03), (i)
2,333,150 shares of Purchaser Stock shall be issued and outstanding, (ii)
169,933 shares of Purchaser Stock shall be reserved for issuance pursuant to the
Purchaser Stock Option Plans, and (iii) 128,908 shares shall be reserved for
issuance pursuant to the Warrants.
SECTION 5.03 Authority Relative to this Agreement. Purchaser has all
requisite corporate power and authority to execute and deliver this Agreement
and, subject to the terms and conditions hereof, to consummate the transactions
contemplated hereby (provided that the Merger is subject to the provisions of
Section 2.02 and to the applicable provisions of the Corporate Code regarding
any requisite approval by the stockholders of Purchaser). The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of
Purchaser or Sub and no other corporate proceedings on the part of Purchaser or
Sub are necessary to authorize this Agreement or to consummate the transactions
so contemplated (other than the merger, which is subject to the approval of the
stockholders of Purchaser or Sub as contemplated by Section 2.02 and to the
applicable provisions of the Corporate Code). This Agreement has been duly and
validly executed and delivered by Purchaser or Sub and, assuming this Agreement
constitutes a valid and binding obligation of Company, this Agreement
constitutes a valid and binding agreement of Purchaser or Sub, enforceable
against Purchaser or Sub in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
and the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
SECTION 5.04 Absence of Certain Changes. Except as disclosed in the
Purchaser Filings (as defined in Section 5.05) or as disclosed in writing to the
Company by Purchaser, since February 1, 2000, Purchaser and its subsidiaries
have not suffered any Material Adverse Effect.
SECTION 5.05 Reports; Financial Statements. Since January 1, 1998,
Purchaser has filed all required forms, reports and documents with the SEC
required to be filed by it pursuant to the federal securities laws and the SEC
rules and regulations thereunder (the "Purchaser Filings"), all of which have
complied in all material respects with all applicable requirements of the
Securities Act of 1933 (the "Securities Act") and the Exchange Act and the rules
and regulations promulgated thereunder. None of the Purchaser Filings, including
without limitation any financial statements or schedules included therein, at
the time filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The audited and unaudited consolidated financial
statements of the Company included in such reports have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as stated in such financial statements) and fairly present the
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the results of their operations and changes in financial
position for the periods then ended, subject, in the case of the unaudited
financial statements, to normal year-end audit adjustments.
SECTION 5.06 Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by Purchaser and/or Sub nor the
consummation by Purchaser and Sub of the transactions contemplated hereby will
(except as disclosed by Purchaser on schedule 5.06);
(a) subject to the obtaining of any requisite approval of the Purchaser
and Sub's stockholders, conflict with any provision of the Certificate of
Incorporation or By-Laws of Purchaser or Sub;
(b) require any consent, approval, authorization or permit of, or
filing with or notification to, any United States federal or state governmental
or regulatory authority, except (i) in connection with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) pursuant to
the Exchange Act and the rules and regulations thereunder, (iii) pursuant to
state laws relating to takeovers and state securities laws, (iv) the filing of
the Merger Certificate pursuant to the Corporate Code, or (v) where the failures
to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not in the aggregate have a Material Adverse
Effect;
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Purchaser or Sub or any subsidiary of Purchaser, except
for violations which, in the aggregate, would not have a Material Adverse
Effect; or
(d) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, lease, mortgage, license, agreement or other instrument or
obligations to which Purchaser or any of its subsidiaries is a party or by which
Purchaser or any of its subsidiaries or any of their respective assets may be
bound, except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been obtained or
which, in the aggregate, would not have any material adverse effect on the
financial condition, business or results of operations of Purchaser and its
subsidiaries taken as a whole or on the ability of Purchaser or Sub to fully
perform their obligations thereunder.
SECTION 5.07 Brokerage Fees and Commissions. No person or entity is
entitled to receive from Purchaser or Sub any investment banking, brokerage or
finder's fee in connection with this Agreement or the transactions contemplated
hereby based upon arrangements made by or on behalf of the Purchaser or Sub.
SECTION 5.08 Litigation. Except as set forth on Schedule 5.08, there is
no claim, suit, action, proceeding or investigation pending or, to the knowledge
of Purchaser or Sub, threatened against either Purchaser or Sub or affecting the
assets of Purchaser or Sub.
SECTION 5.09. Surviving Corporation After the Merger. At the Effective
Time and after and giving effect to any changes in the Surviving Corporation's
assets and liabilities as a result of the Merger and after and giving effect to
the financing of the Merger and the use of the proceeds therefrom, the Surviving
Corporation will not (i) be insolvent (either because its financial condition is
such that the sum of its debts is greater than the fair value of its assets or
because the present fair saleable value of its assets will be less than the
amount required to pay its probable liability on its debts as they become
absolute and matured), (ii) have unreasonably small capital with which to engage
in its business or (iii) have incurred or plan to incur debts beyond its ability
to pay as they become absolute and matured.
SECTION 5.10. No Prior Activities. Except for obligations or
liabilities incurred in connection with its incorporation or organization or the
negotiation and consummation of this Agreement and the transaction contemplated
hereby, Sub has neither incurred any obligations or liabilities nor engaged in
any business or activities of any type or kind whatsoever or entered into any
agreements or arrangements with any person or entity.
ARTICLE VI
COVENANTS
SECTION 6.01 Conduct of Business of the Company.
Except as contemplated by this Agreement or as disclosed in writing to
Purchaser on or prior to the date hereof, during the period from the date of
this Agreement to the Effective Time, the Company and its subsidiaries shall in
all material respects conduct its operations according to its ordinary and usual
course of business and consistent with past practice and the Company shall use
reasonable efforts to preserve intact in all material respects the business
organization of the Company, keep available the services of its current officers
and key employees, and preserve in all material respects the good will of those
having advantageous business relationships with it and its subsidiaries,
provided that the Company shall not be required to make any payments or enter
into or amend any contractual arrangements or understandings to satisfy the
foregoing obligations. Without limiting the generality of the foregoing, and
except as contemplated by this Agreement or as disclosed in writing to Purchaser
on or
prior to the date hereof, prior to the Effective Time, neither the Company nor
any of its subsidiaries, as the case may be, will, without the prior written
consent of Purchaser:
(a) issue, sell or pledge, or authorize or propose the issuance, sale
or pledge of, additional shares of its capital stock or securities convertible
into any such shares, or any rights, warrants or options to acquire any such
shares or other convertible securities, other than Shares, preferred stock,
treasury shares, rights, warrants or options issuable pursuant to the Stock
Option Plan.
(b) purchase or otherwise acquire, or propose to purchase or otherwise
acquire, any of its outstanding securities;
(c) declare or pay any dividend or distribution on the Shares;
(d) subject to the fiduciary duties of the Board of Directors of the
Company and except pursuant to agreements or arrangements in effect on the date
hereof, purchase, sell or otherwise dispose of or encumber (or enter into any
agreement to so purchase, sell or otherwise dispose of or encumber) material
properties or material assets except in the ordinary course of business;
(e) subject to the rights of the stockholders of the Company under
applicable law, adopt any amendments to the Certificate of Incorporation or
By-Laws of the Company;
(f) (i) increase the compensation of any of its directors, officers or
key employees, except in the ordinary course of business and consistent with
past practice or pursuant to the terms of agreements or plans currently in
effect in amounts material to the Company and its subsidiaries taken as a whole;
(ii) pay or agree to pay any pension, retirement allowance or other employee
benefit not required or permitted by any existing plan, agreement or arrangement
to any director, officer or key employee in amounts material to the Company and
its subsidiaries taken as a whole; (iii) commit itself (other than pursuant to
any collective bargaining agreement) to any additional pension, profit-sharing,
bonus, extra compensation, incentive, deferred compensation, stock purchaser,
stock option, stock appreciation right, group insurance, severance pay,
retirement or other employee benefit plan, agreement or arrangement, or to any
employment or consulting agreement with or for the benefit of any director,
officer or key employee, whether past or present in amounts material to the
Company and its subsidiaries taken as a whole; or (iv) except as required by
applicable law, amend in any material respect any such plan, agreement or
arrangement; or
(g) except in the ordinary course of business and consistent with past
practice, (i) incur any amount of long-term indebtedness for borrowed money or
issue any material amount of debt securities or assume, guarantee or endorse the
obligations of any other person except for obligations of wholly owned
subsidiaries of the Company; (ii) make any material loans, advances or capital
contributions to, or investments in, any other person (other than to wholly
owned subsidiaries of the Company or customary loans or
advances to employees in amounts not material to the maker of such loan or
advance); (iii) pledge or otherwise encumber shares of capital stock of the
Company or a material portion of the capital stock of any if its subsidiaries,
or (iv) mortgage or pledge any of its material assets, tangible or intangible,
or create or suffer to exist any material line thereupon;
SECTION 6.02 Acquisition Proposals. To the extent that the Board of
Directors of the Company determines to do so in the exercise of their fiduciary
duties, the Company and its subsidiaries are entitled to, and are entitled to
cause their respective directors, officers, employees, representatives and
agents to, solicit or initiate inquiries with respect to the making of proposals
by, engage in discussions or negotiations with, and provide confidential
information to, any person relating to an acquisition, business combination or
purchase of all or any significant portion of the assets of, or any significant
equity interest in, the Company or any material subsidiary or division of the
Company (an "Acquisition Proposal"). The Company represents that as of the date
hereof it has ceased all prior activities, and has no present intention to
engage in activities, in each case of the type contemplated by the immediately
preceding sentence with respect to Acquisition Proposals (other than with
Purchaser or any affiliate of Purchaser or their respective directors, officers,
employees, representatives or agents). The Company will promptly communicate to
Purchaser the terms of any proposal or inquiry which it may receive in respect
of any Acquisition Proposal by any person (other than Purchaser or any affiliate
of Purchaser or their respective directors, officers, employees, representatives
and agents).
SECTION 6.03 Access to Company Information.
(a) Subject to applicable law and the agreements set forth in Section
6.03(b), between the date of this Agreement and the Effective time, the Company
will (i) give Purchaser and its authorized representatives reasonable access,
during regular business hours upon reasonable notice, to all of its facilities
and to all of its books and records, (ii) permit Purchaser to make such
reasonable inspections as it may be required, and (iii) cause its officers and
those of its subsidiaries to furnish Purchaser with such financial and operating
data and other information with respect to the business and properties of the
Company and its subsidiaries as Purchaser may from time to time reasonably
request.
(b) Information obtained by Purchaser pursuant to this Section 6.03
shall be subject to the provisions of the confidentiality agreement between
Purchaser and the Company dated [date], (the "Confidentiality Agreement"), which
agreement remains in full force and effect; except insofar as such provisions
would expressly prohibit Purchaser or Sub from taking any of the actions
contemplated by this Agreement.
SECTION 6.04 Best Efforts. Subject to the fiduciary duties of the Board
of Directors of the Company under applicable law, each of the parties hereto
agrees to
use its best efforts to take, or cause to be taken, all necessary or appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations or otherwise to consummate and
make effective the transactions contemplated by this Agreement including,
without limitation, the execution of any additional instruments necessary to
consummate the transactions contemplated hereby and seeking to lift or reverse
any legal restraint imposed on the consummation of the transactions contemplated
by this Agreement. In case at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Agreement,
the proper officers and directors of each party hereto shall take all such
necessary action.
SECTION 6.05 Public Announcements. Purchaser and the Company shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to the Officer or the Merger and shall not issue
any such press release or make any such public statement prior to such
consultation, except as may be required by law.
SECTION 6.06 Indemnification and Insurance.
(a) The Company shall indemnify and hold harmless, and after the
Effective Time the Surviving Corporation shall indemnify and hold harmless, each
present and former employee, agent, director or officer of the Company and its
subsidiaries (the "Indemnified Parties") from and against any and all claims
arising out of or in connection with activities in such capacity, or on behalf
of, or at the request of, the Company, its subsidiaries or affiliates, to the
fullest extent permitted under Delaware law and in addition, to the fullest
extend provided in their respective charters or by-laws or any contract or other
arrangement in effect at the date hereof which obligations shall survive the
Merger and shall continue in full force and effect for a period of not less than
six years form the Effective Time; provided, however, that if any claim or
claims (a "Claim" or "Claims") are asserted or made within such six year period,
all rights to indemnification in respect of any such Claim or Claims shall
continue until disposition of any and all such Claims. Without limiting the
foregoing, the Company, and after the Effective Time the Surviving Corporation,
shall advance expenses incurred with respect to the foregoing, as they are
incurred, to the fullest extent permitted under applicable law, provided that
the person on whose behalf the expenses are advanced provides and undertakes
(which need not be secured) to repay such advances if it is ultimately
determined that such person is not entitled to indemnification.
(b) In addition to the indemnification provided in Section 6.06(a),
Purchaser shall indemnify and hold harmless each Indemnified Party from and
against any and all Claims arising out of or in connection with this Agreement,
the Offer, the Merger and any other transaction or event contemplated by this
Agreement, which indemnity shall remain in full force and effect whether or not
the Offer or the Merger is ever consummated. Without limiting the foregoing,
Purchaser shall advance expenses incurred wit respect to the foregoing, as they
are incurred, provided that the person to
whom the expenses are advanced provides an undertaking (which need not be
secured) to repay such advances if it is ultimately determined that such person
is not entitled to indemnification.
(c) The Surviving Corporation shall use its best efforts to cause to be
maintained in effect for not less than six years from the Effective Time the
current policies of directors' and officers' liability insurance maintained by
the Company and its subsidiaries (provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage containing terms and
conditions which are no less advantageous so long as no lapse in coverage occurs
as a result of such substitution) with respect to all matters, including the
transactions contemplated hereby, occurring prior to and including the Effective
Time; provided that, in the event that any Claim or Claims are asserted or made
within such six-year period, such insurance shall be continued in respect of any
such Claim or Claims until final disposition of any and all such Claims;
provided further that the Surviving Corporation shall not be required to pay
annual premiums in excess of 400% of the Company's total current annual premiums
for such insurance and if the Surviving Corporation is unable to obtain the
insurance required by this Section 6.06(c) it shall obtain as much comparable
insurance as can be obtained for an annual premium equal to such maximum amount.
SECTION 6.07 Conduct of Business of Purchaser.
Except as contemplated by this Agreement or as disclosed in writing to
Company on or prior to the date hereof, during the period from the date of this
Agreement to the Effective Time, the Purchaser and its subsidiaries shall in all
material respects conduct its operations according to its ordinary and usual
course of business and consistent with past practice and the Purchaser shall use
reasonable efforts to preserve intact in all material respects the business
organization of the Purchaser, keep available the services of its current
officers and key employees, and preserve in all material respects the good will
of those having advantageous business relationships with it and its
subsidiaries, provided that the Purchaser shall not be required to make any
payments or enter into or amend any contractual arrangements or understandings
to satisfy the foregoing obligations. Without limiting the generality of the
foregoing, and except as contemplated by this Agreement or as disclosed in
writing to Company on or prior to the date hereof, prior to the Effective Time,
neither the Purchaser nor any of its subsidiaries, as the case may be, will,
without the prior written consent of Company:
(a) issue, sell or pledge, or authorize or propose the issuance, sale
or pledge of, additional shares of its capital stock or securities convertible
into any such shares, or any rights, warrants or options to acquire any such
shares or other convertible securities, other than Shares, preferred stock,
treasury shares, rights, warrants or options issuable pursuant to the Stock
Option Plans or the Warrants.
(b) purchase or otherwise acquire, or propose to purchase or otherwise
acquire, any of its outstanding securities;
(c) declare or pay any dividend or distribution on its Shares, except
for the reverse stock split referenced in Section 7.03;
(d) subject to the fiduciary duties of the Board of Directors of the
Purchaser and except pursuant to agreements or arrangements in effect on the
date hereof, purchase, sell or otherwise dispose of or encumber (or enter into
any agreement to so purchase, sell or otherwise dispose of or encumber) material
properties or material assets except in the ordinary course of business;
(e) subject to the rights of the stockholders of the Purchaser under
applicable law, adopt any amendments to the Certificate of Incorporation or
By-Laws of Purchaser;
(f) (i) increase the compensation of any of its directors, officers or
key employees, except in the ordinary course of business and consistent with
past practice or pursuant to the terms of agreements or plans currently in
effect in amounts material to the Purchaser and its subsidiaries taken as a
whole; (ii) pay or agree to pay any pension, retirement allowance or other
employee benefit not required or permitted by any existing plan, agreement or
arrangement to any director, officer or key employee in amounts material to the
Purchaser and its subsidiaries taken as a whole; (iii) commit itself (other than
pursuant to any collective bargaining agreement) to any additional pension,
profit-sharing, bonus, extra compensation, incentive, deferred compensation,
stock purchaser, stock option, stock appreciation right, group insurance,
severance pay, retirement or other employee benefit plan, agreement or
arrangement, or to any employment or consulting agreement with or for the
benefit of any director, officer or key employee, whether past or present in
amounts material to the Purchaser and its subsidiaries taken as a whole; or (iv)
except as required by applicable law, amend in any material respect any such
plan, agreement or arrangement; or
(g) except in the ordinary course of business and consistent with past
practice, (i) incur any amount of long-term indebtedness for borrowed money or
issue any material amount of debt securities or assume, guarantee or endorse the
obligations of any other person except for obligations of wholly owned
subsidiaries of the Purchaser; (ii) make any material loans, advances or capital
contributions to, or investments in, any other person (other than to wholly
owned subsidiaries of the Purchaser or customary loans or advances to employees
in amounts not material to the maker of such loan or advance); (iii) pledge or
otherwise encumber shares of capital stock of the Purchaser or a material
portion of the capital stock of any if its subsidiaries, or (iv) mortgage or
pledge any of its material assets, tangible or intangible, or create or suffer
to exist any material line thereupon;
SECTION 6.08 Access to Purchaser Information
(a) Subject to applicable law and the agreements set forth in Section
6.03(b), between the date of this Agreement and the Effective time, the
Purchaser will (i) give Company and its authorized representatives reasonable
access, during regular business hours upon reasonable notice, to all of its
facilities and to all of its books and records, (ii) permit Company to make such
reasonable inspections as it may be required, and (iii) cause its officers and
those of its subsidiaries to furnish Company with such financial and operating
data and other information with respect to the business and properties of the
Purchaser and its subsidiaries as the Company may from time to time reasonably
request.
(b) Information obtained by the Company pursuant to this Section 6.08
shall be subject to the provisions of the Confidentiality Agreement, which
agreement remains in full force and effect; except insofar as such provisions
would expressly prohibit the Company from taking any of the actions contemplated
by this Agreement.
SECTION 6.09 Pre-Closing Payments
(a) On or before December 14, 2000, the Company shall pay $1,800 to
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. to cover outstanding accounting fees owed by the Company.
(b) On or before December 18, 2000, the Company shall pay on behalf of
Purchaser the amount required to renew Purchaser's directors' and officers'
liability insurance for one year on terms substantially equivalent to those of
the policy in effect as of the date of this Agreement.
SECTION 6.10 Post-Closing Financing
In the event that Purchaser or the Surviving Corporation shall not have
received a cash equity investment of at least $300,000 within 90 days after the
Effective Time, then Purchaser shall issue an additional 583,288 shares of
Purchaser's Common Stock (or such lesser amount as is equal to 25% of the number
of shares of Purchaser Stock outstanding immediately prior to the Effective
Time) to the pre-closing Purchaser shareholders set forth on Schedule 6.10
attached hereto on the basis of one additional share of Purchaser Stock for
every four shares of Purchaser Stock held before the Effective Time.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF MERGER
SECTION 7.01 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, at or prior to the Effective Time, of the
following conditions:
(a) this Agreement shall have been approved and adopted by the
affirmative vote of the stockholders of the Company to the extent required by
applicable law and the Certificate of Incorporation of the Company;
(b) no statute, rule, regulation, decree, order or injunction shall
have been promulgated, enacted, entered or enforced by any United States federal
or state government, governmental agency or authority or court which remains in
effect and prohibits, restrains, enjoins or restricts the consummation of the
Merger;
(c) any waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or been terminated; and
(d) this Agreement shall have been approved and adopted by the
affirmative vote of the stockholders of Purchaser to the extent required by
applicable law and the Certificate of Incorporation of Purchaser;
SECTION 7.02 Conditions to Obligations of Purchaser and Sub to Effect
the Merger. The obligation of Purchaser and Sub to effect the Merger are further
subject to the satisfaction, at or prior to the Effective Time, of the
conditions that (i) Purchaser and Sub shall have received a certificate from the
Company, signed by the chief executive officer of the Company, stating that the
representations and warranties of the Company set forth in Article IV are true
and correct at and as of the Effective Time, and (ii) the Company shall have
performed in all material respects each of its obligations under this Agreement
required to be performed by it at or prior to the Effective Time pursuant to the
terms hereof.
SECTION 7.03 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger is further subject to
the satisfaction, at or prior to the Effective Time, of the conditions that (i)
each of the Purchaser and Sub shall have performed in all respects its
respective material obligations under this Agreement required to be performed by
it at or prior to the Effective Time pursuant to the terms hereof, (ii) the
Board having received a certificate from Purchaser, signed by the chief
executive officer of Purchaser, stating that the representations and warranties
of Purchaser and Sub set forth in Article V are true and correct at and as of
the Effective Time, (iii) the Board having received a certificate from
Purchaser, signed by the chief executive officer of Purchaser, stating that the
representation set forth in Section 5.09 hereof is true and correct at and as of
the Effective Time, and (iv) the Board of Directors of Purchaser shall have
declared and if necessary, the shareholders of Purchaser shall have approved, a
1 for 4.286 reverse stock split of Purchaser Shares, with elimination of
fractional shares; provided, however, that the reverse stock split ratio shall
be adjusted as appropriate in the event of cancellation of any Purchaser Stock
prior to the Effective Time so as to leave the pre-merger holders of Purchaser
Stock with 20% of the post-merger shares of Purchaser Stock.
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
SECTION 8.01 Termination. This Agreement may be terminated and the
merger may be abandoned at any time notwithstanding approval thereof by the
stockholders of the Company, but prior to the Effective Time:
(a) by mutual written consent duly authorized by the Boards of
Directors of the Company, Purchaser and Sub; or
(b) by Purchaser or the Company if (i) the Effective Time shall not
have occurred on or before January 15, 2001 (provided that the right to
terminate this Agreement under this Section 8.01(b) shall not be available to
any party whose failure to fulfill any obligations under this Agreement has been
the cause of or resulted in the failure of the Effective Time to occur on or
before such date), or (ii) any United States federal or state government,
governmental agency or authority or court shall have issued an order, decree or
ruling, or taken any other action, permanently restraining, enjoining or
otherwise prohibiting the Merger (which the party seeking to terminate this
Agreement shall have used its best efforts to have lifted or reversed) and such
order, decree, ruling or other action shall have become final and
non-appealable.
SECTION 8.02 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 8.01 hereof, this Agreement, except for the
provisions of Section 6.03(b) (confidentiality), Section 8.03 (fees and
expenses) and this Section 8.02, shall forthwith become void and have no effect,
without any liability on the part of any party or its affiliates, directors,
officers or stockholders. Nothing in this Section 8.02 or in Section 8.03 shall
relieve any party to this Agreement of liability for breach of this Agreement on
or prior to the date of termination.
SECTION 8.03 Fees and Expenses. Each party shall bear its own expenses
in connection with this Agreement and the transactions contemplated hereby,
except that in the event this Agreement is terminated pursuant to Section
8.01(b) due to a breach by a party, such party shall reimburse the non-breaching
party for all reasonable out-of-pocket expenses and fees (including, without
limitation, the fees and expenses of its counsel and financial advisors)
incurred by or on behalf of such party in connection with this Agreement and the
transactions contemplated hereby.
SECTION 8.04 Amendment. To the extent permitted by applicable law, this
Agreement may be amended by action taken by or on behalf of the respective
Boards of Directors of the Company, Purchaser and Sub at any time before or
after adoption of this Agreement by the stockholders of the Company (if required
by applicable law) but, after any such stockholder approval, no amendment shall
be made which decreases the Merger Consideration or changes the form thereof or
which adversely affects the rights of the Company's stockholders hereunder
without the approval of such stockholders. This Agreement may not be amended
except by an instrument in writing signed on behalf of all the parties.
SECTION 8.05 Extension; Waiver. At any time prior to the Effective
Time, the parties hereto, by action taken by or on behalf of the respective
Boards of Directors of the Company, Purchaser or Sub, may (i) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties of any
other party contained herein or in any document, certificate or writing
delivered pursuant hereto by any other party, or (iii) waive compliance with any
of the agreements or conditions contained herein. Any agreement on the part of
any party to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to assert any of its rights hereunder shall not constituent a waiver of such
rights.
ARTICLES IX
MISCELLANEOUS
SECTION 9.01 Nonsurvival of Representations and Warranties. Except for
the representation set forth in Section 5.09, the representations and warranties
made in Articles IV and V shall not survive beyond the Effective Time or a
termination of this Agreement. The representations set forth in Section 5.09
shall survive the Effective Time and any investigation at any time made by or on
behalf of any party, with respect to any claim made arising from or based upon
such Section 5.09, for a period of six years following the Effective Time. This
Section 9.01 shall not limit any covenant or agreement of the parties hereto
which by its terms contemplates performance after the Effective Time.
SECTION 9.02 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, other than the Confidentiality Agreement, among the parties or
any of them with respect to the subject matter hereof and (b) shall not be
assigned by operation of law or otherwise, provided that Purchaser or Sub may
assign any of their rights and obligations to any wholly owned, director or
indirect subsidiary of Purchaser, but no such assignment shall relieve Purchaser
or Sub of its obligations hereunder. It is understood and agreed that either
Purchaser, or any wholly owned, direct or indirect subsidiary of Purchaser, may
purchase Shares under the Offer.
SECTION 9.03 Enforcement of the Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties and other
persons entitled to enforce this Agreement pursuant to Section 9.08 shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any federal or
state court located in Ohio (as to which the
parties agree to submit to jurisdiction for the purposes of such action), this
being in addition to any other remedy to which they are entitled at law or in
equity.
SECTION 9.04 Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby, and
to such end, the provisions of this Agreement are agreed to be severable.
SECTION 9.05 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, telex or telecopies, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties as follows:
If to Purchaser or Sub: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Mitrani, Rynor,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Zorrilla, P.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Energy Control Technology, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ with copies to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
SECTION 9.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Delaware regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
SECTION 9.07 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.
SECTION 9.08 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reasons of this
Agreement except for the holders of stock options with respect to Section 2.08,
the holders of Shares with respect to Articles II and III and Section 6.06
[Indemnity] (which are intended to be for the benefit of the persons provided
for therein, and may be enforced by such persons.).
SECTION 9.09 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 9.10 Certain Definitions. As used in this Agreement:
(a) "affiliate" or "associate" of a person shall have the meaning
ascribed thereto in Rule 12b-2 under the Exchange Act.
(b) "beneficial ownership" shall have the meaning as used in Rule 13d
under the Exchange Act.
(c) "group"shall have the meaning as used in Rule 13d-5(b) under the
Exchange Act.
(d) "person" means any individual, corporation, company, group,
partnership, association, governmental body or other entity.
(e) A "subsidiary" of an entity shall mean any corporation, a majority
of the outstanding voting securities of which are owned directly or indirectly
by such entity.
(f) "Material Adverse Effect" shall mean any change in or effect on the
business of the Company or Purchaser or any of their subsidiaries that is
materially adverse to the results of operations, properties or financial
condition of the Company or Purchaser and their subsidiaries taken as a whole,
except for such changes or effects resulting from, or in connection with (i)
labor relations between the Company and its subsidiaries, on the one hand, and
their respective employees or any unions, on the other hand, (including a strike
or other disruption in the operations of the Company or Purchaser or their
subsidiaries which shall not be regarded as a "material adverse effect") or (ii)
general economic or financial market conditions.
SECTION 9.11 Performance by Sub. Purchaser hereby agrees to cause Sub
to comply with its obligations hereunder and under the Offer and to cause Sub to
consummate the Merger as contemplated herein.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
WINDSOR CAPITAL CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
WCC ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
ENERGY CONTROL TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
