JOINDER AND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 10.1
JOINDER AND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Joinder and Amendment to Agreement and Plan of Merger (this “Agreement”) is dated
as of June 30, 2006 and is by and among Electric City Corp., a Delaware corporation
(“ELC”), Xxxxx Acquisition, LLC, a California limited liability company
(“Acquisition”), Xxxxx P.A.N.D.A. Corporation, a California corporation (“Xxxxx”),
Xxxxxx Xxxxx, an individual (“X. Xxxxx”), and Xxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx, not
individually but as the trustees (the “Trustees”) of The Xxxxx Family Trust (Restated), a
trust created September 24, 1992 and restated under agreement dated October 11, 1996 (the
“Trust”).
WITNESSETH:
WHEREAS, ELC, Acquisition, Xxxxx and X. Xxxxx entered into that certain Agreement and Plan of
Merger dated May 19, 2006 (the “Merger Agreement”) under which, among other things, X.
Xxxxx represented and warranted that he owns all of the issued and outstanding capital stock of
Xxxxx; and
WHEREAS, X. Xxxxx has since realized that all of the issued and outstanding capital stock of
Xxxxx is owned by the Trust and accordingly the parties desire to amend the Merger Agreement to add
the Trust as a party thereto;
NOW, THEREFORE, the Parties agree as follows:
1. Definitions. All terms capitalized but not defined herein shall have the meaning
attributable to such terms in the Merger Agreement, except where the context otherwise requires.
2. Amendment and Joinder. Each of the parties to this Agreement hereby agrees that
from and after date hereof:
(a) Except as otherwise set forth below, the term “Stockholder” as used in the Merger
Agreement shall refer jointly to X. Xxxxx, individually, and to the Trustees and the Trust
as the owner of all of the issued and outstanding capital stock of Xxxxx;
(b) X. Xxxxx shall be individually obligated on each of the representations, warranties
and covenants of the Stockholder in the Merger Agreement on the same basis as if he had
directly owned all of the issued and outstanding capital stock of Xxxxx on the date of
execution of the Merger Agreement and continued to own such shares on the Effective Date;
(c) the Trustees and the Trust hereby agree to be obligated on each of the
representations, warranties and covenants of the Stockholder contained in the Merger
Agreement on the same basis as if they had been the Stockholder party to the Merger
Agreement at the time when it was executed;
(d) upon the Effective Date, the Cash Consideration and the ELC Stock Consideration
deliverable by ELC under the Merger Agreement shall be delivered to the
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Trust, not to X. Xxxxx individually, and Clause (a) of Section 2.2 of the Merger
Agreement is hereby amended and restated in its entirety as follows:
(a) Cash and Stock Deliverable to Stockholder At Closing. Upon filing
of the Certificate of Merger, ELC shall cause to be delivered to The Xxxxx Family
Trust, as sole stockholder of Xxxxx (a) by wire transfer to an account designated by
The Xxxxx Family Trust or other acceptable payment means, an amount equal to the
estimated amount of the Cash Consideration determined as provided in Section 1.6
hereof, and (b) one or more stock certificates representing the ELC Stock
Consideration, registered in the name of The Xxxxx Family Trust or its nominee.
(e) Section 9.6 of the Merger Agreement is hereby amended and restated in its entirety
as follows:
9.6 Consents to Leases, Contracts. Xxxxx and the Stockholder shall
have obtained consents reasonably satisfactory to ELC with respect to those of the
leases, licenses, contracts and other agreements and instruments which are referred
to on Schedule 9.6.
(f) The final sentence of Section 13.10 of the Merger Agreement is hereby amended and
restated in its entirety as follows:
After the Closing Date, neither this Agreement nor any other agreement
or document executed by Xxxxx in connection with the Contemplated
Transactions may be amended or terminated or any provision thereof
waived without the written consent of X. Xxxxx.
(g) Schedules 5.2, 5.9 and 9.6 to the Merger Agreement shall be in the forms attached
to this Agreement.
3. Representations. The Trustees and the Trust hereby represent and warrant to ELC
and Acquisition that the Trust has all requisite power and authority to enter into and perform its
obligations under this Agreement, and that the execution, delivery and performance of this
Agreement by the Trust has been duly authorized by all required action of the Trustees or under any
applicable laws and this Agreement has been duly executed and delivered by the Trustees and the
Trust and constitutes the valid and binding obligation of the Trustees and the Trust, enforceable
against them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.
4. Miscellaneous.
(a) This Agreement shall not be assigned by any party hereto without the prior written consent
of each other party.
(b) If any provision of any of this Agreement is determined to be illegal, invalid or
enforceable, such provision shall be fully severable and the remaining provisions shall remain in
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full force and effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
(c) The captions and headings of Sections of this Agreement are for convenience only and shall
not control or affect the meaning or construction of any of the provisions of this Agreement.
(d) This Agreement shall be governed by, construed, and enforced in accordance with the laws
of the State of California, notwithstanding any conflict of law provision to the contrary.
(e) This Agreement amends the Merger Agreement and shall be subject to arbitration on the same
terms and conditions as are set forth in Section 13.7 of the Merger Agreement.
(f) The terms, agreements, covenants, representations, warranties and conditions of this
Agreement may be waived only by a written instrument executed by the party waiving compliance. The
failure of any party at any time or times to require performance of any provision of this Agreement
shall in no manner affect the right at a later date to enforce the same. No waiver by any party of
any condition or the breach of any provision, term, agreement, covenant, representation or warranty
contained in this Agreement in :any one or more instances shall be deemed to be or construed as a
further or continuing waiver of any such condition or of the breach of any other provision, term,
agreement, covenant, representation or warranty.
(g) This Agreement may be executed in several counterparts, and all counterparts so executed
shall constitute one agreement, binding on all of the parties hereto, notwithstanding that all the
parties are not signatory to the original or the same counterpart. It shall not be necessary in
making proof of this Agreement to produce or account for more than one such counterpart for each of
the parties hereto. Delivery by facsimile by any of the parties hereto of an executed counterpart
of this Agreement shall be effective as an original executed counterpart hereof and shall be deemed
a representation that an original executed counterpart hereof will be delivered.
(h) This Agreement constitutes the entire agreement among the parties and supersedes and
cancels any and all prior agreements between them relating to the subject matter hereof, and may
not be amended except in a writing signed by the party to be bound. After the Closing Date,
neither this Agreement nor any other agreement or document executed by Xxxxx in connection with the
Contemplated Transactions may be amended or terminated or any provision thereof waived without the
written consent of X. Xxxxx.
(i) Nothing expressed or referred to in this Agreement will be construed to give any person or
entity other than the parties to this Agreement any legal or equitable right, remedy or claim under
or with respect to this Agreement or any provision of this Agreement.
[Balance of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Joinder and Amendment to Agreement and Plan
of Merger to be duly executed by their duly authorized officers, all as of the day and year first
above written.
ELECTRIC CITY CORP. | XXXXX ACQUISITION, LLC | |||||||
By:
|
/s/ Xxxxxxx Xxxxxxx | By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name:
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Xxxxxxx Xxxxxxx | Name: | Xxxxxxx Xxxxxxx | |||||
Title:
|
Chief Financial Officer | Title: | Manager | |||||
XXXXX P.A.N.D.A. CORPORATION | THE XXXXX FAMILY TRUST (Restated) | |||||||
By:
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/s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | Xxxxxx X. Xxxxx, Trustee | ||||||
Title:
|
President | |||||||
and | ||||||||
/s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxxxxxx X. Xxxxx | ||||||
XXXXXX X. XXXXX, Individually | Xxxxxxxx X. Xxxxx, Trustee |
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