SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 25, 2021 (January 19, 2021)
(Exact name of registrant as specified in its charter)
(State or other
incorporation or organization)
400 Avenue D, Suite 10, Williston, Vermont 05495
(Address of Principal Executive Offices) (Zip Code)
(Registrant’s telephone number, including area code)
THE PECK COMPANY HOLDINGS, INC.
4050 Williston Road, Suite 511, South Burlington, Vermont 05403
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|[ ]||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|[ ]||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|[ ]||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|[ ]||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
Securities registered pursuant to Section 12(b) of the Act:
|Title of each class||Trading Symbol(s)||Name of each exchange on which registered|
|Common Stock, $0.0001 par value per share||ISUN||NASDAQ Capital Market|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company [X]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [ ]
Item 1.01. Entry into a Material Definitive Agreement.
Agreement and Plan of Merger and Reorganization
On January 19, 2021, the Registrant (“we,” “our” or the “Company”) entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) by and among the Company, Peck Mercury, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (the “Merger Sub”), iSun Energy LLC, a Delaware limited liability company (“iSun Energy, LLC”), the sole member of which was Sassoon M. Peress (“Peress”), and Peress, pursuant to which the Merger Sub merged with and into iSun Energy LLC (the “Merger”) with iSun Energy LLC as the surviving company in the Merger and iSun Energy LLC becoming a wholly-owned subsidiary of the Company. In connection with Merger, Peress will receive 400,000 shares of the Company’s Common Stock over five years, 200,000 shares of which were issued at the closing, warrants to purchase up 200,000 shares of the Company’s Common Stock, and up to 240,000 shares of the Company’s Common Stock based on certain performance milestones. The shares of the Company’s Common Stock to be issued in connection with the Merger will be listed on the NASDAQ Capital Market. The Merger is intended to qualify as a reorganization for U.S. federal income tax purposes.
Pursuant to the terms of the Merger Agreement, the Company entered into a Stockholder Lockup Agreement with Peress, which restricts the ability of Peress to dispose of 160,000 shares of Common Stock for a period of 365 days after the Merger and 200,000 shares of Common Stock for a period of 365 days after the issuance of such shares of Common Stock without the prior written consent of the Company (subject to certain exceptions set forth in the Lockup Agreement). The foregoing description of the Lockup Agreement does not purport to be complete, and is qualified in its entirety by reference to the full text of the Lockup Agreement, which is attached hereto as Exhibit 10.1.
The Merger Agreement was unanimously approved by the Board of Directors of the Company.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
On January 19, 2021, in connection with the Merger, the Company entered into an Officer Agreement with Peress (the “Officer Agreement”).
The Officer Agreement provides that Peress will serve the Company in the position of Chief Innovation and Experience Officer, which position does not constitute employment by the Company. The Officer Agreement also provides that, if the Company’s Board of Directors is expanded to seven or more members and the Consulting Agreement (described below) is then in effect, the Company will nominate Peress for election to the Board of Directors.
The foregoing description of the Officer Agreement is not meant to be complete and is qualified in its entirety by reference to the Officer Agreement, which is included as Exhibit 10.2 to this report and incorporated herein by reference.
In connection with the Merger, on January 19, 2021, the Company entered into a Consulting Agreement (the “Consulting Agreement”) with Renewz Sustainable Solutions, Inc., a Canadian corporation (“Renewz”), of which Peress is the sole stockholder, pursuant to which Renewz will provide certain services to the Company. In consideration of these services, the Company will pay Renewz an annual consulting fee in the amount of $175,000, plus additional compensation set out forth n Schedule 2 to the Consulting Agreement. The foregoing description of the Consulting Agreement is qualified in its entirety by the Consulting Agreement which is attached hereto as Exhibit 10.3 and is incorporated herein by reference.
On January 19, 2021,Peress delivered to the Company an Irrevocable Proxy designating the Company’s President, Jeffrey Peck, as Peress’s proxy for purposes of voting all of the Company’s shares owned by Peress. Peress granted this irrevocable proxy in connection with the Merger. The foregoing description of the Irrevocable Proxy is qualified in its entirety by the Irrevocable Proxy, which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.
Section 5 – Corporate Governance and Management
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Effective January 19, 2021, the Company changed its corporate name from The Peck Company Holdings, Inc. to iSun, Inc. (the “Name Change”). The Name Change was effected through a parent/subsidiary short-form merger of iSun, Inc., our wholly-owned Delaware subsidiary formed solely for the purpose of the name change, with and into us. We were the surviving entity. To effectuate the short-form merger, we filed a Certificate of Merger with the Secretary of State of the State of Delaware on January 19, 2021. The merger became effective on January 19, 2021 with the State of Delaware and, for purposes of the quotation of our Common Stock on the Nasdaq Capital Market (“Nasdaq”), effective at the open of the market on January 20, 2021. Our Board of Directors approved the short-form merger. In accordance with Section 253 of the Delaware General Corporation Law, stockholder approval of the short-form merger was not required.
On the effective date of the short-form merger, our name was changed to “iSun, Inc.” and our Second Amended and Restated Certificate of Incorporation, as amended (the “Charter”), was further amended to reflect our new legal name. With the exception of the name change, there were no other changes to our Charter. A copy of the Certificate of Merger we filed with the Secretary of State of the State of Delaware is being filed herewith as Exhibit 3.1.
The merger and resulting name change do not affect the rights of our security holders. Our Common Stock will continue to be quoted on Nasdaq; however, effective January 20, 2021, our Common Stock is quoted under the new symbol “ISUN” and the new CUSIP number for the Common Stock is 4652461066. Our Warrants will continue to be to be quoted OTC, however, effective January 20, 2021 our Warrants are quoted under the new symbol “ISUNW” and the new CUSIP number for the Warrants is 4652461140. Following the name change, the stock certificates or warrant certificates, as the case may be, which reflect our prior corporate name, will continue to be valid. Certificates reflecting the new corporate name will be issued in due course as old stock certificates or warrant certificates, as the case may be, are tendered for exchange or transfer to our transfer agent.
Item 8.01 Other Events.
On January 19, 2021, the Company issued a press release announcing the Name Change and that the Company and iSun Energy LLC had entered into the Merger Agreement and certain other matters. The press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01. Financial Statement and Exhibits.
|2.1||Merger Agreement by and among The Peck Company Holdings, Inc., Peck Mercury, Inc., iSun Energy LLC and Sassoon M. Peress, dated January 19, 2021|
|3.1||Certificate of Merger filed with the Delaware Secretary of State dated January 19, 2021|
|10.1||Stockholder Lockup Agreement between The Peck Company Holdings, Inc. and Sassoon M. Peress, dated January 19, 2021|
|10.2||Officer Agreement between The Peck Company Holdings, Inc. and Sassoon M. Peress, dated January 19, 2021|
|10.3||Consulting Agreement between The Peck Company Holdings, Inc. and Renewz Sustainble Solutions, dated January 19, 2021|
|10.4||Irrevocable Proxy between The Peck Company Holdings, Inc. and Sassoon M. Peress, dated January 19, 2021|
|99.1||Press Release dated January 19, 2021|
Additional Information about the Transaction and Forward-Looking Statements
This document contains forward-looking statements concerning the Merger, future financial and operating results, benefits and synergies of the Merger, future opportunities for the combined businesses and any other statements regarding events or developments that the parties believe or anticipate will or may occur in the future. Risks and uncertainties may cause actual results and benefits of the Merger to differ materially from management expectations. Potential risks and uncertainties include, among others: general economic conditions and conditions affecting the industries in which the Company operates. Additional information regarding the factors that may cause actual results to differ materially from these forward-looking statements is available in the Company’s SEC filings, including the Company’s Annual Report on Form 10-K for the year ended December 31, 2019 and this 8-K. These forward-looking statements speak only as of the date of this communication and the Company assumes no obligation to update or revise any forward-looking statement, whether as a result of new information, future events and developments or otherwise, except as required by law.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the U.S. Securities Act of 1933, as amended.
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: January 25, 2021
|By:||/s/ Jeffrey Peck|
|Title:||Chief Executive Officer|
Agreement And Plan Of Merger And Reorganization
THE PECK COMPANY HOLDINGS, inc.,
Peck mercury, inc.,
IsUN ENERGY LLC,
SASSOON M. PERESS
dated as of
January 19, 2021
TABLE OF CONTENTS
|Section 1.01.||The Merger||1|
|Section 1.03.||Closing Deliverables||2|
|Section 1.04.||Effective Time||2|
|Section 1.05.||Effects of the Merger||2|
|Section 1.06.||Articles of Organization; Operating Agreement||2|
|Section 1.07.||Merger Consideration.||2|
|Section 1.08.||No Further Ownership Rights in Membership Interest.||2|
|Section 1.09.||Withholding Rights||3|
|ARTICLE II. Representations And Warranties Of Peck||3|
|Section 2.01.||Organization and Qualification||3|
|Section 2.02.||Authority; Board Approval||3|
|Section 2.03.||No Conflicts; Consents||4|
|Section 2.05.||No Other Representations and Warranties||4|
|Representations And Warranties Of Peress and iSun||4|
|Section 3.01.||Organization and Qualification||5|
|Section 3.02.||Authority; Stockholder Approval||5|
|Section 3.03.||No Conflicts; Consents||5|
|Section 3.05.||Financial Statements||6|
|Section 3.06.||Absence of Certain Changes, Events and Conditions||6|
|Section 3.07.||Material Contracts||7|
|Section 3.08.||Title to Assets; Real Property||7|
|Section 3.09.||Intellectual Property||7|
|Section 3.11.||Legal Proceedings; Governmental Orders||8|
|Section 3.12.||Compliance with Laws; Permits||8|
|Section 3.13.||Employee Benefit Matters||9|
|Section 3.14.||Employment Matters||9|
|Section 3.16.||Related Party Transactions||10|
|Section 3.18.||No Other Representations and Warranties||10|
|Section 4.01.||Public Announcements||11|
|Section 4.02.||Further Assurances||11|
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|Section 5.02.||Tax Positions||11|
|Section 6.02.||Indemnification by Peck||12|
|Section 6.03.||Indemnification by Peress and iSun||12|
|Section 6.04.||Certain Limitations||12|
|Section 6.06.||Exclusive Remedies||14|
|Section 7.06.||Entire Agreement||16|
|Section 7.07.||Successors and Assigns||16|
|Section 7.08.||No Third-party Beneficiaries||16|
|Section 7.09.||Amendment and Modification; Waiver||16|
|Section 7.10.||Governing Law; Submission to Jurisdiction||17|
|Section 7.11.||Specific Performance||17|
|Section 7.14.||Disclosure Schedules||18|
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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Agreement and Plan of Merger and Reorganization (this “Agreement”), dated as of January 19, 2021 is entered into by and among The Peck Company Holdings, Inc., a Delaware corporation (“Peck”), Peck Mercury, Inc., a Delaware corporation (“Merger Subsidiary”), iSun Energy LLC, a Delaware limited liability company (“iSun”), and Sassoon M. Peress (“Peress”). Certain other capitalized terms used in this Agreement are defined in the appended Exhibit A.
The parties intend that Merger Subsidiary be merged with and into iSun, with iSun surviving that merger on the terms and subject to the conditions set forth herein (the “Merger”), pursuant to which Merger Subsidiary will cease to exist, and iSun will become a wholly-owned subsidiary of Peck;
The Board of Directors of Peck (the “Peck Board”) has unanimously (a) determined that this Agreement and the contemplated transactions, including the Merger, are in the best interests of Peck and its stockholders and (b) approved and declared advisable this Agreement and the contemplated transactions, including the Merger;
The sole member of iSun, Peress, has (a) determined that this Agreement and the contemplated transactions, including the Merger, are in the best interests of iSun and its sole member , and (b) approved and declared advisable this Agreement and the contemplated transactions, including the Merger;
Therefore, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1.01. The Merger. On the terms and subject to the conditions set forth in this Agreement, and in accordance with applicable Law, at the Effective Time, Merger Subsidiary will merge with and into iSun and the separate existence of Merger Subsidiary will cease and iSun will continue its corporate existence under applicable Law as the surviving corporation in the Merger (sometimes referred to herein as the “Surviving Company”).
Section 1.02. Closing. Closing shall occur upon the execution of this Merger Agreement by all parties (the day on which the Closing takes place being the “Closing Date”).
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Section 1.03. Closing Deliverables.
(a) At or prior to the Closing, iSun shall deliver to Peck the following:
(i) a certificate of the sole Member of iSun certifying that (A) attached thereto are true and complete copies of (1) all resolutions adopted by the sole member of iSun authorizing the execution, delivery, and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby , and (B) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(ii) all the consents set forth in Section 4.03 of the iSun Disclosure Schedule shall have been obtained and shall be in full force and effect; and
(iii) a good standing certificate as to iSun from the Secretary of State of the State of Delaware. ;
Section 1.04. Effective Time. Subject to the provisions of this Agreement, at the Closing, (a) Peck, iSun and Merger Subsidiary shall cause a Certificate of Merger (the “Certificate of Merger” to be executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of applicable Law and shall make all other filings or recordings required under applicable Law. The Mergers shall become effective at such time as the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware, or at such later date or time as may be agreed by the parties in writing and specified in the Certificate of Merger in accordance with applicable Law (the effective time of the Merger being hereinafter referred to as the “Effective Time”).
Section 1.05. Effects of the Merger. The Merger shall have the effects set forth herein and in the applicable provisions of applicable Law. Without limiting the generality of the foregoing, from and after the Effective Time, (a) all property, rights, privileges, immunities, powers, franchises, licenses, and authority of iSun and Merger Subsidiary shall vest in the Surviving Company, and all debts, liabilities, obligations, restrictions, and duties of each of iSun and Merger Subsidiary shall become the debts, liabilities, obligations, restrictions, and duties of the Surviving Company.
Section 1.06. Articles of Organization; Operating Agreement At the Effective Time, (i) the Articles of Organization of iSun as in effect immediately prior to the Effective Time shall be the Articles of Organization of the Surviving Company until thereafter amended in accordance with the terms thereof or as provided by applicable Law and (ii) the Operating Agreement of iSun as in effect immediately prior to the Effective Time shall be the Operating Agreement of the Surviving Company until thereafter amended in accordance with the terms thereof or the Articles of Organization of the Surviving Company or as provided by applicable Law.
Section 1.07. Merger Consideration. At Closing, Peress will surrender all certificates, if any, representing the membership interest in iSun (the “Certificates”) in exchange for the consideration (the “Merger Consideration”) set forth in as Exhibit C attached hereto.
Section 1.08. No Further Ownership Rights in Membership Interest. All Merger Consideration paid or payable upon the surrender of Certificates in accordance with the terms hereof shall be deemed to have been paid or payable in full satisfaction of all rights pertaining to the membership interest formerly represented by such Certificate, and from and after the Effective Time, there shall be no further registration of transfers of Membership Interests on the transfer books of the Surviving Entity. If, after the Effective Time, Certificates are presented to a Surviving Entity, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article I and elsewhere in this Agreement.
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Section 1.09. Withholding Rights. Peck shall be entitled to deduct and withhold from the Merger Consideration such amounts, if any, as may be required to be deducted or withheld therefrom under the Code or any other applicable Law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been delivered or otherwise paid to the Person to whom such amounts would otherwise have been delivered or otherwise paid pursuant to the Merger and this Agreement.
Article II. Representations And Warranties Of Peck
Peck represents and warrants to iSun that the statements contained in this Article II are true and correct as of the date hereof.
Section 2.01. Organization and Qualification. Peck is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Delaware and has full corporate power and authority to own, operate, or lease the properties and assets now owned, operated, or leased by it and to carry on its business as it has been and is currently conducted. Peck is in good standing in every jurisdiction in which such qualification or licensure is required.
Section 2.02. Authority; Board Approval.
(a) Peck has full corporate power and authority to enter into and perform its obligations under this Agreement and the Ancillary Documents to which it is a party and to consummate the contemplated transactions. The execution, delivery, and performance by Peck of this Agreement and any Ancillary Document to which it is a party and the consummation by Peck of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Peck and no other corporate proceedings on the part of Peck are necessary to authorize the execution, delivery, and performance of this Agreement or to consummate the Mergers and the other transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by Peck, and (assuming due authorization, execution, and delivery by each other party) this Agreement constitutes a legal, valid, and binding obligation of Peck enforceable against Peck in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). When each Ancillary Document to which Peck is or will be a party has been duly executed and delivered by Peck (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Document will constitute a legal and binding obligation of Peck enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
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(b) The Peck Board, by unanimous written consent, has, as of the date hereof (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are fair to, and in the best interests of Peck and its Stockholders, and (ii) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger, in accordance with applicable Law.
Section 2.03. No Conflicts; Consents. The execution, delivery, and performance by Peck of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, including the Merger, do not and will not: (i) result in a violation or breach of any provision of the Certificate of Incorporation, By-laws, or other organizational documents of Peck (“Peck Charter Documents”); or (ii) result in a violation or breach of any provision of any Law or Governmental Order applicable to Peck. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Peck in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby.
Section 2.04. Brokers. No broker, finder, or investment banker is entitled to any brokerage, finders’, or other fee or commission in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of Peck.
Section 2.05. No Other Representations and Warranties. Except for the representations and warranties contained in this Article II (including the related portions of the Disclosure Schedules), neither Peck nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Peck including any representation or warranty as to the accuracy or completeness of any information regarding the business, properties, and assets of Peck, furnished or made available to iSun, and its Representatives or as to the future revenue, profitability, or success of the business of Peck, or any representation or warranty arising from statute or otherwise in law. Intentionally omitted.
Representations And Warranties Of Peress and iSun
Except as set forth in the Disclosure Schedules, Peress and iSun, jointly and severally, represent and warrant to Peck that the statements contained in this Article III are true and correct as of the date hereof. Exceptions on the Disclosure Schedules shall specifically identify the representation to which they relate, provided that any matter disclosed in one section or subsection of the Disclosure Schedules is deemed disclosed in such other sections or subsections of the Disclosure Schedules if it is reasonably apparent from a reasonable reading that such matter relates to such other section or subsection of the Disclosure Schedules.
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Section 3.01. Organization and Qualification. iSun is a limited liability company duly organized, validly existing, and in good standing under the Laws of the State of Delaware and has full company e power and authority to own, operate, or lease the properties and assets now owned, operated, or leased by it and to carry on its business as it has been and is currently conducted. iSun is in good standing in every jurisdiction in which such qualification or licensure is required, except where the failure to be so qualified or licensed would not reasonably be expected to have, individually or in the aggregate, an iSun Party Material Adverse Effect.
Section 3.02. Authority; Stockholder Approval.
(a) iSun has full power and authority to enter into and perform its obligations under this Agreement and the Ancillary Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by iSun of this Agreement and any Ancillary Document to which it is a party and the consummation by iSun of the transactions contemplated hereby and thereby have been duly authorized by all requisite company action on the part of iSun and no other company proceedings on the part of iSun are necessary to authorize the execution, delivery, and performance of this Agreement or to consummate the Merger and the other transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by iSun, and (assuming due authorization, execution, and delivery by each other party hereto) this Agreement constitutes a legal, valid, and binding obligation of iSun enforceable against iSun in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). When each Ancillary Document to which iSun is or will be a party has been duly executed and delivered by iSun (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Document will constitute a legal and binding obligation of iSun enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, and other similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(b) The sole member of iSun, Peress, has as of the date hereof (i) determined that this Agreement and the contemplated transactions, including the Merger, are fair to, and in the best interests of the sole member (ii) approved and declared advisable this Agreement and the contemplated transactions, including the Merger, in accordance with applicable Law.
Section 3.03. No Conflicts; Consents. The execution, delivery, and performance by iSun of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, including the Merger, do not and will not: (i) result in a violation or breach of any provision of the Articles of Organization or other organizational documents of iSun (“iSun Charter Documents”); (ii) result in a violation or breach of any provision of any Law or Governmental Order applicable to iSun LLC; (iii) except as disclosed on Schedule 3.03, require the consent, notice, or other action by any Person conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of any iSun Material Contract; except in the cases of clauses (ii) and (iii), where the violation, breach, conflict, default, acceleration or failure to give notice would not have an iSun Material Adverse Effect. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to iSun in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, except for the filing of the Certificate of Merger with the Secretary of State of Delaware and such consents, approvals, Permits, Governmental Orders, declarations, filings, or notices which, in the aggregate, would not have an iSun Material Adverse Effect.
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Section 3.04. Capitalization.
(a) All of the outstanding membership interests of iSun are held by Peress.
(b) There are (i) no subscription, warrant, option, convertible or exchangeable security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of iSun authorized or outstanding, and (ii) there is no commitment by iSun to issue subscriptions, warrants, options, convertible or exchangeable securities, or other such rights or to distribute to holders of any of its equity securities any evidence of indebtedness or asset, to repurchase or redeem any securities of iSun or to grant, extend, accelerate the vesting of, change the price of, or otherwise amend any warrant, option, convertible or exchangeable security or other such right.
(c) All issued and outstanding membership interests of iSun are (i) duly authorized, validly issued, fully paid, and non-assessable; (ii) not subject to any preemptive rights created by statute, the iSun Charter Documents, or any agreement to which iSun is a party; and (iii) free of any Liens (other than Permitted Liens) created by iSun in respect thereof.
Section 3.05. Financial Statements. Complete copies of iSun’s financial statements consisting of the balance sheet of iSun as at December 31, 2019, and the related statements of operations, shareholders’ equity and cash flow for the year then ended (the “iSun Financial Statements”), and the balance sheet of iSun as at December 31, 2020, and the related statements of operations, shareholders’ equity and cash flow for the year then ended (the “iSun Unaudited Financial Statements” and together with the Financial Statements, the “iSun Financial Statements”) have been made available to Peck. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved, subject, in the case of the Unaudited Financial Statements, to normal and recurring year-end adjustments and the absence of notes. The Financial Statements fairly present in all material respects the financial condition of iSun as of the respective dates they were prepared and the results of the operations of iSun for the periods indicated. The balance sheet of iSun as of December 31, 2020 is referred to herein as the “iSun Balance Sheet” and the date thereof as the “iSun Balance Sheet Date”.
Section 3.06. Absence of Certain Changes, Events and Conditions. Except as expressly contemplated by the Agreement, from the Balance Sheet Date until the date of this Agreement, (a) iSun has operated its business only in the ordinary course of business in all material respects and (b) there has not been, with respect to iSun, any event, occurrence or development that has had a iSun Material Adverse Effect.
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Section 3.07. Material Contracts.
(a) Section 3.07(a) of the Disclosure Schedules lists each of the following Contracts of iSun (the “iSun Material Contracts”):
(i) each Contract of iSun involving aggregate consideration in excess of $10,000 and which, in each case, cannot be cancelled by iSun without penalty or without more than 90 days’ notice;
(ii) all Contracts that require iSun to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts relating to Indebtedness of iSun;
(iv) all Contracts that limit or purport to limit the ability of iSun to compete in any line of business or with any Person or in any geographic area or during any period of time;
(v) any Contracts to which iSun is a party that provide for any joint venture, partnership, or similar arrangement by iSun; and
(vi) all collective bargaining agreements or Contracts with any Union to which iSun is a party.
(b) iSun is not in breach of, or default under, any iSun Material Contract, except for such breaches or defaults that would not have an iSun Material Adverse Effect.
Section 3.08. Title to Assets; Real Property.
(a) iSun has a valid leasehold interest in all iSun Leased Real Property free and clear of Liens, except for Permitted Liens. iSun does not own any Owned Real Property.
(b) Section 3.08(b) of the Disclosure Schedules lists each iSun Real Property Lease. iSun is not a sublessor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy, or enjoyment of any iSun Leased Real Property. The use and operation of the iSun Leased Real Property in the conduct of iSun’s business do not violate in any material respect any Law.
Section 3.09. Intellectual Property.
(a) Section 3.09(a) of the Disclosure Schedules lists all (i) iSun IP Registrations and (ii) iSun Intellectual Property, including software, that are not registered but that are material to the iSun’s business or operations. All required filings and fees related to the iSun IP Registrations have been timely filed with and paid to the relevant Governmental Authorities and authorized registrars, and all iSun IP Registrations are otherwise in good standing.
(b) Section 3.09(b) of the Disclosure Schedules lists all material iSun IP Agreements. iSun has provided Peck with true and complete copies of all such iSun IP Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each iSun IP Agreement is valid and binding on iSun in accordance with its terms and is in full force and effect. Neither iSun nor any other party thereto is in material breach of or default under (or is alleged to be in breach of or default under), or has provided or received any written notice of breach or default of or any intention to terminate, any iSun IP Agreement.
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(c) Except as set forth in Section 3.09(c) of the Disclosure Schedules, iSun is the sole and exclusive legal and beneficial, and with respect to the iSun IP Registrations, record, owner of all right, title and interest in and to the iSun Intellectual Property, and, has the valid right to use all other Intellectual Property used in or necessary for the conduct of iSun’s current business or operations, in each case, free and clear of Liens other than Permitted Liens.
(d) iSun’s rights in the iSun Intellectual Property are valid, subsisting and enforceable. iSun has taken all reasonable steps to maintain the iSun Intellectual Property and to protect and preserve the confidentiality of all trade secrets included in the iSun Intellectual Property.
(e) The conduct of iSun’s business as currently and formerly conducted, and the products, processes and services of iSun, have not materially infringed, misappropriated, diluted or otherwise violated, and do not and will not materially infringe, dilute, misappropriate or otherwise violate the Intellectual Property or other rights of any Person. To the Knowledge of iSun, no Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting or otherwise violating, any iSun Intellectual Property.
Section 3.10. Insurance. Section 3.10 of the Disclosure Schedules sets forth a true and complete list of all insurance policies maintained by iSun or with respect to which iSun is a named insured or otherwise the beneficiary of coverage (collectively, the “iSun Insurance Policies”). The iSun Insurance Policies are in full force and effect. iSun has not received any written notice of cancellation of any of the iSun Insurance Policies. There are no claims related to the business of iSun pending under any such iSun Insurance Policies as to which coverage has been denied or disputed.
Section 3.11. Legal Proceedings; Governmental Orders.
(a) There are no material Actions currently pending or threatened in writing against or by iSun affecting any of its properties or assets.
(b) There are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against or affecting iSun or any of its properties or assets.
Section 3.12. Compliance with Laws; Permits.
(a) iSun is in compliance with all Laws applicable to the conduct of its business as currently conducted, except where the failure to be in compliance would not have an iSun Party Material Adverse Effect.
(b) All material Permits required for iSun to conduct its business as currently conducted have been obtained by it and are valid and in full force and effect, except where the failure to obtain such Permits would not have an iSun Party Material Adverse Effect. Section 3.12(b) of the Disclosure Schedules lists all current material Permits issued to iSun.
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Section 3.13. Employee Benefit Matters.
(a) iSun does not and has not maintained any pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, welfare, fringe-benefit, and other similar agreement, plan, policy, program, or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA.
Section 3.14. Employment Matters.
(a) iSun is not bound by, or negotiating any collective bargaining agreement or other Contract with a Union, and there is not any Union representing or purporting to represent any employee of iSun, and no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been, nor, to iSun’s Knowledge, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting iSun or any of its employees.
(b) iSun is in compliance in all material respects with all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of iSun There are no Actions against iSun pending, or to iSun’s Knowledge, threatened in writing to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant or independent contractor of iSun.
Section 3.15. Taxes.
(a) iSun has filed all material Tax Returns in connection with any federal, state or local Tax required to be filed by it, and iSun has paid all material Taxes due and owing by iSun (whether or not shown on any Tax Return) except as contested in good faith.
(b) There are no Liens for Taxes against the assets of iSun, other than Permitted Liens.
(c) No Tax Return of iSun is currently under audit or examination by any Taxing Authority, and no written notice of such an audit or examination has been received by iSun, which audit or examination has not been resolved.
(d) iSun has not executed or filed with any Taxing Authority any written consent to extend or waive the applicable period for assessment or collection of any Tax, which extension or waiver is currently in effect.
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(e) iSun is not a party to, or bound by, any written Tax sharing agreement pursuant to which it will have any obligation to make any payments after the Closing (other than pursuant to agreements the primary subject of which is not Taxes).
(f) iSun has not been a member of an affiliated, combined, consolidated or unitary Tax group for Tax purposes, other than a group of which iSun or any predecessor of iSun was the ultimate parent corporation. iSun has no Liability for Taxes of any Person (other than iSun) under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local or foreign Law), as transferee or successor.
(g) iSun is not, and has never been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(a) of the Code, in relation to the Effective Time.
(h) Within the last five years, iSun has not been a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for Tax-free treatment under Section 355 of the Code.
(i) iSun is not, and has never been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b).
Section 3.16. Related Party Transactions. Other than Peress, no executive officer or director of iSun or any person owning 5% or more of the Shares in iSun (or any of such person’s immediate family members or Affiliates or associates) is a party to any Contract with or binding upon iSun or any of its assets, rights, or properties or has any interest in any property owned by iSun or has engaged in any transaction with any of the foregoing within the last twelve (12) months.
Section 3.17. Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of iSun.
Section 3.18. No Other Representations and Warranties. Except for the representations and warranties contained in this Article III (including the related portions of the Disclosure Schedules), neither iSun nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of iSun, including any representation or warranty as to the accuracy or completeness of any information regarding the business, properties, and assets of iSun, furnished or made available to Peck, and its Representatives or as to the future revenue, profitability, or success of the business of iSun, or any representation or warranty arising from statute or otherwise in law.
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Section 4.01. Public Announcements. Unless otherwise required by applicable Law (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably conditioned, withheld or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.
Section 4.02. Further Assurances. Following the Closing, each of the parties shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the contemplated transactions.
Section 5.01. Reorganization. Peck, the Merger Subsidiary, and iSun shall use their respective commercially reasonable efforts to cause the Merger to qualify, and agree not to, and not to permit or cause any affiliate or any Subsidiary to, take any actions or cause any action to be taken which would reasonably be expected to prevent or impede either Merger from qualifying, as a “reorganization” under Section 368(a) of the Code.
Section 5.02. Tax Positions. This Agreement is intended to constitute, and the parties hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g). The parties shall treat and shall not take any tax reporting position inconsistent with the treatment of the Merger as a reorganization within the meaning of Section 368(a) of the Code for U.S. federal, state and other relevant Tax purposes, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code.
Section 6.01. Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing. None of the covenants or other agreements contained in this Agreement shall survive the Closing Date other than those which by their terms contemplate performance after the Closing Date, and each such surviving covenant and agreement shall survive the Closing for the period contemplated by its terms. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of such survival period and such claims shall survive until finally resolved.
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Section 6.02. Indemnification by Peck. Subject to the other terms and conditions of this Article VI, including, without limitation, Section 6.05, Peck shall indemnify and defend Peress (the “iSun Indemnitees”) against, and shall hold Peress harmless from and against, and shall pay and reimburse Peress for, any and all Losses incurred or sustained by, or imposed upon, Peress based upon, arising out of, with respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Peck contained in this Agreement;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Peck pursuant to this Agreement.
Section 6.03. Indemnification by Peress and iSun. Subject to the other terms and conditions of this Article VI, including, without limitation, Section 6.05, Peress (the sole indemnitor with respect to Section 6.03 below) and iSun (together, the “iSun Indemnitors”), jointly and severally, shall indemnify and defend Peck and its officers, directors, shareholders, employees, and affiliates (the “Peck Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Peck Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Peress or iSun contained in this Agreement; or
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Peress or iSun pursuant to this Agreement.
Section 6.04. Certain Limitations. The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the following limitations:
(a) Neither Peck nor the iSun Indemnitors shall be liable to the other under Section 6.02 or Section 6.03, as applicable, until the aggregate amount of all Losses in respect of indemnification under Section 6.02 or Section 6.03, as applicable, exceeds $10,000 (the “Deductible”), in which event Peck and the iSun Indemnitors, as applicable, shall be required to pay or be liable for only such Losses in excess of the Deductible, subject to this Article VI.
(b) Payments by the Indemnifying Parties pursuant to Section 6.02 or Section 6.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (which, for the avoidance of doubt, shall include any such payment received by Parent) in respect of any such claim.
(c) Payments by an Indemnifying Party pursuant to Section 6.02 or Section 6.03 in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized as a result of such Loss by the Indemnified Party (which, for the avoidance of doubt, shall include any such benefit realized by Parent).
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(d) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
(e) Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such written notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 6.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 6.05(b), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim.
(f) Settlement of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably conditioned, withheld or delayed), except as provided in this Section 6.05(b). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 6.05(a), it shall not agree to any settlement without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably conditioned, withheld or delayed).
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(g) Direct Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
Section 6.05. Payments. Any Losses payable to a Peck Indemnitee pursuant to this Article VIII shall be satisfied solely by way of the cancellation of shares of Common Stock issued by Peck as the Merger Consideration to such person, based on a valuation equal to the per share closing price on Nasdaq on the date of Closing. Any Losses payable to an iSun Indemnitee pursuant to this Article VIII shall be satisfied by way of (i) cash; or (ii) the issuance of additional shares of Common Stock, based on a valuation equal to the per share closing price on Nasdaq on the date of Closing; or (iii) any combination of cash or Common Stock, in Peck’s sole discretion.
Section 6.06. Exclusive Remedies. The parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims for any breach of any representation, warranty, covenant, agreement, or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement, or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article VI.
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Section 7.01. Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.
Section 7.02. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.02):
|If to Peck:||
The Peck Company Holdings, Inc.
400 Ave D, Suite 10
Williston, VT 05495USA
Attention: Jeffrey Peck, CEO
|with a copy to:||
Merritt & Merritt
PO Box 5839
Burlington, VT 05402
Attention: H. Kenneth Merritt, Jr., Esq.
If to iSun or
Mr. Sassoon Peress
7501 Mountain Sights, Apt. 505
Montreal, Quebec H4P0A8
Section 7.03. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. All references to “dollars” or “$” in this Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement. When calculating the period of time before which, within which or following which, any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
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Section 7.04. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section 7.05. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section 7.06. Entire Agreement. This Agreement and the Ancillary Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the Ancillary Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.
Section 7.07. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section 7.08. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.09. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
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Section 7.10. Governing Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF VERMONT IN EACH CASE LOCATED IN THE COUNTY OF CHITTENDEN, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 7.11. Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity. No party has any requirement to post a bond or other security before it can obtain specific performance. Each party waives any defenses in any action for specific performance, including the defense that money damages would be adequate.
Section 7.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section 7.13. Non-recourse. This Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are expressly named as parties and then only with respect to the specific obligations set forth herein with respect to such party. No past, present or future director, officer, employee, incorporator, manager, member, partner, shareholder, Affiliate, agent, attorney or other Representative of any party hereto or of any Affiliate of any party hereto, or any of their successors or permitted assigns, shall have any liability for any obligations or liabilities of any party under this Agreement or for any claim or Action based on, in respect of or by reason of the contemplated transactions.
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Section 7.14. Disclosure Schedules. The Disclosure Schedule shall be construed with and as an integral part of this Agreement to the same extent as if it were set forth verbatim herein. Neither the specification of any dollar amount in any representation or warranty contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to vary the definition of “iSun Material Adverse Effect”, or to imply that such amount, or higher or lower amounts, or the item so included or other items, are or are not material, and no party shall use the fact of the setting forth of any such amount or the inclusion of any such item in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not material for purposes of this Agreement. Unless this Agreement specifically provides otherwise, neither the specification of any item or matter in any representation or warranty contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to imply that such item or matter, or other items or matters, are or are not in the ordinary course of business, and no party shall use the fact of the setting forth or the inclusion of any such item or matter in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not in the ordinary course of business for purposes of this Agreement. Certain matters set forth in the Disclosure Schedule are included for informational purposes only notwithstanding that, because they do not rise above applicable materiality thresholds or otherwise, they may not be required by the terms of this to be set forth herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
|THE PECK COMPANY HOLDINGS, inc.|
|By:||/s/ Jeffrey Peck|
|PECK MERCURY, inc.|
|By:||/s/ Jeffrey Peck|
[Signature Page 1 of 2 to Agreement and Plan of Merger and Reorganization]
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|i sUN eNERGY llc|
|By:||/s/ Sassoon M. Peress|
|Name:||Sassoon M. Peress, Sole Member|
|/s/ Sassoon M. Peress|
|Sassoon M. Peress, Individually|
[Signature Page 2 of 2 to Agreement and Plan of Merger and Reorganization]
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For purposes of this Agreement (including this Exhibit A):
“Action” means any action, suit, claim, investigation or other legal proceeding.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Ancillary Documents” means any agreement required or contemplated to be delivered by a party hereto pursuant to the terms of this Agreement.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in New York are authorized or required by Law to be closed for business.
“Code” means the United States Internal Revenue Code of 1986, as amended.
“Contracts” means all legally binding written contracts, leases, mortgages, licenses, instruments, notes, commitments, undertakings, indentures and other agreements.
“Disclosure Schedule” means the Disclosure Schedule delivered by iSun concurrently with the execution and delivery of this Agreement.
“Dollars or $” means the lawful currency of the United States.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“ERISA Affiliate” means all employers (whether or not incorporated) that would be treated together with Peck or iSun, as applicable, or any of their respective Affiliates as a “single employer” within the meaning of Section 414 of the Code.
“Fraud” means any intentional and willful misrepresentation of a material fact regarding a representation made in this Agreement or the Disclosure Schedules or intentional and willful concealment of a material fact regarding a representation made in this Agreement or the Disclosure Schedule by a Person who is defined to have “Knowledge” herein, in either case with the specific intent to deceive and mislead.
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“GAAP” means United States generally accepted accounting principles in effect from time to time.
“Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any arbitrator, court, or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.
“iSun Intellectual Property” means all Intellectual Property that is owned by iSun.
“iSun IP Agreements” means all licenses and similar agreements that (i) convey to any Person a right to use any iSun Intellectual Property, or (ii) convey to iSun a right to use any Intellectual Property of any Person (other than licenses with respect to off-the-shelf commercial software that is generally available to the public).
“iSun IP Registrations” means all iSun Intellectual Property that is subject to any issuance registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered trademarks, domain names and copyrights, issued and reissued patents and pending applications for any of the foregoing.
“iSun Leased Real Property” means the real property leased or subleased by iSun pursuant to a Real Property Lease, including all buildings, structures and facilities that iSun is permitted to use or occupy pursuant to the terms of such Real Property Leases.
“iSun Real Property” means the real property owned, leased, or subleased by iSun, together with all buildings, structures, and facilities located thereon.
“iSun Real Property Leases” means all leases and subleases to which iSun is a tenant or subtenant, together with all amendments and modifications thereto.
“iSun Material Adverse Effect” means any event, occurrence, fact, condition or change that is materially adverse to (a) the business, results of operations, financial condition or assets of iSun’s business, taken as a whole, or (b) the ability of iSun to consummate the transactions contemplated hereby that are reasonably expected to have long-term effects on either iSun’s business; provided, however, that “iSun Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which iSun operates; (iii) any changes in financial, banking or securities markets in general, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement or any action taken (or omitted to be taken) with the written consent of or at the written request of Peck; (vi) any changes in applicable Laws or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof; (vii) the announcement, pendency or completion of the transactions contemplated by this Agreement, including losses or threatened losses of employees, customers, suppliers, distributors or others having relationships with iSun; (viii) any natural or man-made disaster or acts of God; (ix) any event, occurrence, fact, condition or change that is cured; or (x) any failure by iSun to meet any internal or published projections, forecasts or revenue or earnings predictions (provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded).
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“Indebtedness” means all funded debt or debt for borrowed money.
“Intellectual Property” means the following intellectual property rights and assets, whether registered or unregistered: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and similar designations origin, together with the goodwill connected with the use of and symbolized by, and any registrations and applications for any of the foregoing; (b) internet domain names, URLs, website content, social media accounts and content; (c) works of authorship (whether or not copyrightable) and copyrights, and all registrations and applications for such copyrights; (d) trade secrets and confidential and proprietary business and technical information and know-how; (e) inventions, discoveries, patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof) and patent applications; and (f) software, including data files, source code, object code, application programming interfaces, and related specifications and documentation.
“Knowledge” means, with respect to iSun, the actual knowledge of Sassoon M. Peress.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any Governmental Authority.
“Liens” means any lien, pledge, mortgage, license, deed of trust, security interest, charge, claim, easement, encroachment, or other similar encumbrance.
“Losses” means any actual out-of-pocket losses, damages, liabilities, costs, or expenses, including reasonable attorneys’ fees.
“Merger” has the meaning set forth in the recitals.
“Merger Subsidiary” has the meaning set forth in the preamble.
“Permits” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained, or required to be obtained, from Governmental Authorities.
“Permitted Liens” means any (a) Liens for Taxes not yet due and payable or not yet delinquent or which are being contested in good faith by appropriate procedures; (b) statutory Liens or other Liens arising by operation of law securing payments not yet due or which are being contested in good faith, including mechanics, carriers, workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business or in amounts that are not delinquent and which are not, individually or in the aggregate, material to the business of iSun; (c) Liens affecting the iSun, including (i) easements, rights or way, servitudes, licenses, ground leases to utilities, and municipal agreements, (ii) street, alley, highway, telephone line, gas pipeline, power line, and other easements and rights of way of public record on, over or in respect of any such real property, (iii) encroachments and other matters that would be shown in an accurate survey or physical inspection of such Real Property, as applicable, and (iv) Liens in favor of the lessors under the Real Property Leases, or encumbering the interests of the lessors in such Real Property; (d) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties; and (e) other imperfections of title, Liens, if any, that have not had, and would not have, an iSun Material Adverse Effect.
|- 23 -|
“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association, or other entity.
“Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants, and other agents of such Person.
“Peck Common Stock” means the Common Stock, $.0001 par value, of Peck.
“Tax Return” means any return, declaration, report, claim for refund, information return or statement relating to Taxes that is required to be filed with a Taxing Authority, including any schedule or attachment thereto, and including any amendment thereof.
“Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, property (real or personal), real property gains, windfall profits, or other taxes, together with any interest, additions, or penalties with respect thereto, imposed, assessed or collected by or under the authority of a Governmental Authority responsible therefor.
“Taxing Authority” means any Governmental Authority responsible for the imposition, collection or administration of Taxes.
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Disclosure Schedule – iSun
|- 25 -|
|- 26 -|
Shares of Peck
40,000 Shares at Closing, no lockup
160,000 Shares at Closing – 1-yr lockup
50,000 Shares on January 3rd, 2022 – 1-yr lockup
50,000 Shares on January 2nd, 2023 – 1-yr lockup
50,000 Shares on January 2nd, 2024 – 1-yr lockup
50,000 Shares on January 2nd, 2025 – 1-yr lockup
All shares, except for the 40,000 shares issued at Closing shall be subject to a Lockup Agreement in the form of Exhibit D. All shares of Peck Common Stock issued to Peress and/or his affiliates pursuant to the Merger Agreement or any other agreement between Peress and/or his affiliate and Peck and/or its affiliates shall be subject to an Irrevocable Proxy in the form of Exhibit E.
|At Closing, Peck shall issue to Peress Common Stock Purchase Warrants to acquire 100,000 shares of Common Stock at an exercise price equal to $12.00 per share, exercisable after the closing stock price of Peck’s Common Stock is greater than or equal to $12.00 per share for 20 trading days in any 30-day period beginning on and including January 5, 2021, such Warrants to expire upon the 2nd anniversary of issuance and contain a cashless exercise provision.|
|At Closing, Peck shall issue to Peress Common Stock Purchase Warrants to acquire 100,000 shares of Common Stock at an exercise price of $25.00 per share, exercisable after the closing price of Peck’s Common Stock is greater than or equal to $25.00 per share for 20 trading days in any 30-day period beginning on and including January 19, 2021, such Warrants to expire upon the 3rd anniversary of issuance and contain a cashless exercise provision.|
|- 27 -|
|- 28 -|
|- 29 -|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF
DOMESTIC CORPORATION INTO
DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 8, Section 264(c) of the Delaware General Corporation Law and Title 6, Section 18-209 of the Limited Liability Company Act, the undersigned limited liability company executed the following Certificate of Merger:
FIRST: The name of the surviving limited liability company is iSun Energy LLC, a Delaware limited liability company, and the name of the corporation being merged into this surviving limited liability company is Peck Mercury, Inc., a Delaware corporation.
SECOND: The Agreement of Merger has been approved, adopted, certified, executed and acknowledged by the surviving limited liability company and the merging corporation.
THIRD: The name of the surviving limited liability company is iSun Energy LLC.
FOURTH: The merger is to become effective on January 20th, 2021.
FIFTH: The Agreement of Merger is on file at 4050 Williston Rd., Suite 511, So. Burlington, VT 05403, the place of business of the surviving limited liability company.
SIXTH: A copy of the Agreement of Merger will be furnished by the surviving limited liability company on request, without cost, to any member of any constituent limited liability company or stockholder of any constituent corporation.
IN WITNESS WHEREOF, said limited liability company has caused this certificate to be signed by an authorized person, the 20th day of January, A.D., 2021.
|iSun Energy LLC|
|By:||/s/ Sassoon Peress|
This Lockup Agreement (this “Agreement”) is made and entered into as of January 19, 2021, by and between The Peck Company Holdings, Inc., a Delaware corporation (“Peck”), and the person set forth on the signature page attached hereto (“Stockholder”). Each capitalized term used, but not otherwise defined, herein has the respective meaning ascribed to such term in the Agreement and Plan of Merger, dated as of January 19, 2021, by and among Peck, iSun Energy LLC, a Delaware limited liability company (“iSun”), Sassoon M. Peress, and Peck Mercury, Inc., a Delaware corporation (the “Merger Agreement”).
WHEREAS, the Stockholder has agreed that all shares (the “Shares”) of Peck Common Stock currently held by Stockholder or subsequently issued to Stockholder pursuant to the Merger Agreement, exercise of Warrants, as incentive compensation, or otherwise, except for 40,000 shares of Peck Common Stock issued at the Closing of the Merger, shall be subject to a lockup agreement; and
WHEREAS, the execution and delivery of this Agreement by Stockholder is a condition precedent to the obligations of Peck to consummate the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the transactions contemplated by the Merger Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Stockholder and Peck hereby agree as follows:
|1.||Stockholder hereby acknowledges and agrees that, during the period beginning on the date hereof and ending upon the expiration of the Lockup Period (as defined below), Stockholder shall not:|
|(a)||sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to any portion of the Shares;|
|(b)||enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Shares, whether any such transaction is to be settled by delivery of Shares or such other securities, in cash or otherwise; or|
|(c)||publicly announce any intention to effect any transaction specified in clauses (a) or (b).|
As used herein, the term “Lockup Period”, with respect to any Shares, means the period beginning on the date such Shares are issued (each such date, an “Issue Date”) and ending on the date that is 365 days following the applicable Issue Date.
|2.||Notwithstanding the provisions of paragraph 1 above, Stockholder may transfer any of the Shares:|
|(a)||by gift or other transfer to a member of Stockholder’s immediate family or to a trust, corporation, partnership or limited liability company established for estate planning purposes, the beneficiaries, stockholders, partners or members of which are members of such Stockholder’s immediate family or a charitable organization;|
|(b)||by virtue of the applicable laws upon dissolution of Stockholder, if the Stockholders is a legal entity;|
|(c)||by virtue of the Laws of descent and distribution upon the death of Stockholder, as applicable; or|
|(d)||to any of Stockholder’s Affiliates;|
provided, however, that (i) all such permitted transferees shall execute and deliver a lockup agreement substantially in the form of this Agreement and shall be bound by the transfer restrictions contained herein, (ii) any such transfers shall not involve a disposition for value (other than as described above in clause (b)), (iii) any such transfers that result in a reduction of beneficial ownership of the Shares are not required to be reported with the Securities and Exchange Commission (the “SEC”) on Form 4 pursuant to Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (iv) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers.
For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
|3.||Stockholder hereby represents and warrants to Peck that such Stockholder has full power and authority to enter into this Agreement.|
|4.||Peck shall cause each of the certificates evidencing the Shares to be legended with the applicable transfer restrictions. Stockholder agrees and consents to the entry of stop transfer instructions with transfer agent and registrar against the transfer of the Shares, except in compliance with this Agreement, and Peck and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement.|
|5.||This Agreement constitutes the entire agreement by the parties hereto and supersedes all prior understandings, agreements, or representations by the parties hereto, written or oral, to the extent that they relate in any way to the subject matter hereof.|
|6.||This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.|
|7.||This Agreement and any claim, controversy or dispute arising out of or related to this Agreement or the interpretation and enforcement of the rights and duties of the parties hereto, whether arising in law or equity, whether in contract, tort, under statute or otherwise, shall be governed by and construed in accordance with the domestic laws of the State of Delaware (including in respect of the statute of limitations or other limitations period applicable to any such claim, controversy or dispute), without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.|
|8.||All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (a) when delivered personally to the recipient, (b) when sent by electronic mail or facsimile, on the date of transmission to such recipient, (c) one Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (d) four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the address or facsimile number indicated on the books and records of Peck or such other address as a party hereto shall subsequently provide.|
|9.||No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties hereto and approved in writing by the Audit Committee of the Board of Directors of Peck. No waiver by any party hereto of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the party making such waiver and, in the case of Peck, approved in writing by the Audit Committee of the Board of Directors of Peck nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.|
|10.||Each of the parties hereto has been informed that irreparable damage would occur if any of the provisions of this Agreement are not performed in accordance with their specific terms and in the event of breach of this Agreement by a party hereto, the non-breaching party would not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which the non-breaching party may be entitled, such party shall be entitled to seek to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking.|
|11.||If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of such parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.|
|12.||This Agreement may be executed in one or more counterparts (including by means of electronic mail or facsimile), each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party hereto. The parties hereto agree that the delivery of this Agreement may be effected by means of an exchange of facsimile signatures or other electronic delivery.|
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholder Lockup Agreement on the date first written above.
|The Peck Company Holdings, Inc.|
|By:||/s/ Jeffrey Peck|
|/s/ Sassoon M. Peress|
|Sassoon M. Peress|
Signature Page to Lockup Agreement
January 19, 2021
Mr. Sassoon M. Peress
7501 Mountain Sights, Apt. 505
Montreal, Quebec H4P 0A8Canada
Re: Officer Agreement with The Peck Company Holdings, Inc.
By this Letter Agreement (this “Letter”) and in connection with the merger of iSun Energy, LLC and Peck Mercury, Inc., a wholly-owned subsidiary of the The Peck Company Holdings, Inc., a Delaware corporation (the “Company”), the Company hereby agrees to the following:
1. The Company shall cause its Board of Directors to appoint you to the position of Chief Innovation and Experience Officer.
2. This position does not constitute employment by the Company and you will not be entitled to receive any benefits in connection with the position.
3. If the Company’s Board of Directors is expanded to seven or more members, and the Consulting Agreement between the Company and renewz sustainable solutions, inc., a Canadian corporation, is then in effect, the Company will nominate you for election to the Board of Directors;
By countersigning this Letter you hereby agree that you will faithfully discharge your duties as an officer and/or a director of the Company in compliance with all applicable state and federal laws and regulations, including, without limitation, the Delaware General Corporation Law and the Securities Exchange Act of 1934, as amended. You also agree that you will comply with all of the Company’s rules and regulations that are applicable to officers and/or directors, including, without limitation, the Company’s Insider Trading Policy, of which you have been provided a copy.
(a) No Waiver. Waiver of any provision of this Letter, in whole or in part, in any one instance shall not constitute a waiver of any other provision in the same instance, nor any waiver of the same provision in another instance, but each provision shall continue in full force and effect with respect to any other then-existing or subsequent breach. No delay or omission to exercise any right, power or remedy under this Letter by either party upon a breach or default by the other party shall impair any such right, power or remedy of the non-defaulting party, nor shall it be construed to be a waiver of any such breach or default.
(b) Severability. If any provision of this Letter shall be found to be invalid, inoperative or unenforceable in law or equity, such finding shall not affect the validity of any other provisions of this Letter, which shall be construed, reformed and enforced to effect the purposes of this Letter to the fullest extent permitted by law.
(c) Consent to Jurisdiction. Each party agrees that any suit, action or proceeding instituted against such party under or in connection with this Letter shall be brought only in the courts located in the State of Vermont. Each party irrevocably waives any objection to, and any right of immunity on the grounds of, improper venue, the convenience of the chosen forum, the personal jurisdiction of such courts or the execution of resulting judgments. Each party irrevocably accepts and submits to the exclusive jurisdiction of such courts in any such action, suit or proceeding. Each party irrevocably designates, appoints and empowers in the case of any of the aforementioned courts, each and every one of its agents to receive for and on behalf of each party the service of any writ, judgment or other notice of legal process in connection with any suit, action or proceeding in any of such courts, delivery of which to such party or its agent anywhere in the world shall constitute sufficient service on such party.
(d) Miscellaneous. This Letter: (i) may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument; (ii) shall be governed by and construed under the law of the State of Delaware, without application of principles of conflicts of laws; (iii) constitute the entire agreement of the parties with respect to the subject matter hereof, superseding all prior oral and written communications, proposals, negotiations, representations, understandings, courses of dealing, agreements, contracts, and the like between the parties in such respect; (iv) may be amended, modified, or terminated, and any right under this Letter may be waived in whole or in part, only by a writing signed by both parties; (v) contains headings only for convenience, which headings do not form part, and shall not be used in construction, of this Letter; and (vi) shall bind and inure to the benefit of the parties and their respective legal representatives, successors and assigns, except that no party may delegate any of its obligations under this Letter, or assign this Letter, without the prior written consent of the other party; provided however, the Company may assign this Letter without prior written consent to an affiliate of the Company or in connection with a sale, merger, reorganization or business combination involving the Company.
[Signature Page Follows]
|Very truly yours,|
|THE PECK COMPANY HOLDINGS, INC.|
|By:||/s/ Jeffrey Peck|
|Title:||Chief Executive Officer|
|ACKNOWLEDGED AND AGREED|
|/s/ Sassoon M. Peress|
|Name: Sassoon M. Peress|
CONSULTING AGREEMENT (this “Agreement”) dated and effective as of January 19, 2021 (the “Commencement Date”), is made by and between iSun, Inc., a Delaware corporation formerly known as The Peck Company Holdings, Inc. (the “Company”), and the undersigned consultant (the “Consultant”). The Agreement consists of this agreement and Schedules 1, 2, 3 and 4.
For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. Engagement of Consultant. Pursuant to the terms and conditions of this Agreement, Company engages Consultant to perform the services generally described in Schedule 1 (the “Services”). Consultant accepts such engagement and agrees to render the Services. Consultant will use its best efforts, knowledge and abilities to perform Services to and for benefit of the Company. In consideration of the performance of the Services, Company will compensate Consultant in accordance with Schedule 2 (the “Consulting Fees”). Consultant will devote such time and resources as are necessary to provide the Services, including without limitation, the substantial time of Mr. Sassoon Peress during normal business hours and otherwise as required to fulfill Consultant’s obligations under this Agreement.
Consultant will during the Term of this Agreement operate in conformity with all applicable laws and regulations, and will secure general business operations and travel insurance as Company may reasonably require, all at Consultant’s expense. Consultant’s relationship with the Company is that of an independent contractor.
Consultant will not issue any press releases or other announcements of its consultancy with Company without Company’s prior written consent.
Whenever Company’s consent is required under this Agreement, such consent will be in Company’s sole business judgment.
2. Non-Exclusive. Subject to the terms of Section 5, the Consultant will retain the right to perform work for others during the term of this Agreement so long as: (a) Consultant satisfies Consultant’s obligations to the Company as set forth in Section 1 and Schedule 1; and (b) such activities do not compete with the Company, including its affiliates and subsidiaries; and (c) Consultant has obtained the prior, written approval of the Company’s President in each instance prior to engaging in such activities. Any request to perform services to a third party will include the name of the third party, a description of proposed services and such other information as the Company may require.
3. Independent Contractor Status. The Consultant will for all purposes be deemed to be an independent contractor, and not an employee, agent or partner of, or joint venture with, the Company. Accordingly, the Consultant and its employees will not be entitled to any rights or benefits to which any employee of the Company or any of its affiliates or subsidiaries may be entitled. Consultant will obtain its own liability and insurance coverages, obtain all necessary licenses and approvals, and pay all fees, assessments, taxes and other payments required to operate its business. In no event will any employee or contractor of Consultant be deemed an employee or contractor of Company, whether or not Company is aware of or has approved of such employee or contractor. Consultant will operate its business in strict conformity with the laws and regulations of Canada, the Province of Quebec and all other jurisdictions in which Consultant may operate, including all applicable local laws and regulations. Consultant will be responsible for all risks incurred in connection with the Consultant’s performance of services under this Agreement. Consultant is solely responsible for all fees and costs associated with the operation of its business, including without limitation, all lease and utility payments on any of its premises. Company will not be liable to Consultant because of termination of this Agreement for any reason or no reason for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales, or on account of expenditures, investments, lease or commitments in connection with the business or good will of Consultant. Consultant will not develop any good will in the business or operations of Company by use of the Company name or marks or arising out of its consulting relationship with the Company or otherwise, all of which will belong exclusively to the Company.
4. Term; Termination.
(a) Consultant may terminate this Agreement without Good Reason as defined below on at least sixty (60) days’ prior written notice to the Company and Termination will occur on the date specified in the notice. If Consultant terminates without Good Reason as defined below, Consultant will be paid approved expenses and the pro-rata annual fee to the termination date and the Company will have no further obligation to Consultant.
(b) The Company may terminate this Agreement without cause on at least sixty (60) days’ prior written notice, and Termination will occur on the date specified in the notice. Consultant may be required to cease immediately from provision of further Services on notice. If Company terminates without Cause as defined below, Consultant will be paid the pro-rata annual fee to the termination date, approved expenses incurred to the termination date, and all shares of Common Stock as listed on Exhibit C (Merger Consideration) of the Agreement and Plan of Merger and Reorganization dated January 19, 2021 that have not been issued will be issued to Sassoon Peress on the termination date specified in the notice, subject to the conditions set forth in such Exhibit C (Merger Consideration).
(c) Company may terminate Consultant for Cause as defined below:
Termination by the Company for Cause. Company may terminate Consultant for “Cause” due to material breach of this Agreement by Consultant that is either not susceptible to cure or which is not cured by Consultant on not less than thirty (30) days’ notice. If the breach is not susceptible to cure, termination will occur on the date of notice of such breach to Consultant. If the breach is susceptible to cure and remains uncured during the notice period, termination is on the thirty-first day following notice of breach to Consultant, Company will have no further obligations to Consultant under this Agreement if termination is for Cause. The Company may, in its sole discretion, extend the cure period if Consultant has begun to cure and is moving expeditiously to cure within the thirty day notice period, provided the Company may terminate Consultant at any time thereafter on notice.
“Material breach” means but is not limited to: (a) any crime or act of fraud or intentional dishonesty against the Company by Sassoon Peress or Consultant; (b) arrest of Sassoon Peress and/or Consultant for the commission of a crime of moral turpitude which the Company believes is causing harm to its business or to the reputation of the Company; (c) habitual neglect of Company’s legal directives to Consultant; (d) disregard of Company’s written policies as applicable to Company consultants; or (e) breach of Consultant’s confidentiality, assignment of Developments or other proprietary obligations under this Agreement; (f) material breach by Sassoon Peress or Consultant of any other Agreements with the Company or any Company affiliate to which Sassoon Peress or Consultant may then be subject which breach is not cured as provided in such agreements.
(d) Death. This Agreement will terminate on the date of the death of Sassoon Peress and Company will have no further obligations to Consultant under this Agreement except for payment of approved expenses incurred by Consultant to the date of death.
(e) Disability. This Agreement will terminate on the incapacity of Sassoon Peress which precludes Sassoon Peress from performing the usual and customary duties required of Consultant in this Agreement for a period of sixty (60) days during any twelve month period, whether incapacity results from mental or physical illness. Termination will occur on the date following any such period of incapacity on which Company provides notice of termination due to incapacity to Consultant, and Company will have no further obligations to Consultant under this Agreement. Any question of mental or physical incapacity on which the parties cannot agree will be as determined by an independent physician selected by Company. The determination of the physician as to incapacity will be final. In the event of termination for disability, Consultant will be paid approved expenses to the termination date and its fees for the remainder of the year in which the disability occurs, payable in monthly installments as otherwise provided for payment of fees in this Agreement.
(f) This Agreement will terminate on the date of resignation or termination of Sassoon Peress from Consultant, and Company will have no further obligations to Consultant under this Agreement.
(g) Consultant may terminate this Agreement for “Good Reason” on not less than thirty days’ prior written notice in the event: (i) Consultant is directed by Company to perform an illegal act, provided Consultant provides in the notice a reference to the applicable law or regulation and Consultant’s written refusal to act. Consultant may not terminate this Agreement for Cause under this section if Company rescinds its directive within the thirty day notice period, or if Consultant is provided with a written opinion from Company counsel within such notice period that the directive is not illegal; or (ii) Company has failed to pay Consultant’s fees and accepted expenses for a period of ninety (90) days past the due date. In the event of Consultant’s termination for Good Reason, Consultant will be paid approved expenses incurred to the termination date plus Consultant’s fees for the remainder of year in which termination occurs payable in monthly installments as otherwise provided for payment of fees in this Agreement.
5. Special Covenants of the Consultant. The Consultant covenants with the Company, which covenants will survive termination of the Consultant’s engagement under this Agreement, as follows:
(a) Confidentiality. During and after termination of the Consultant’s engagement under this Agreement, the Consultant will keep secret and retain in the strictest confidence all confidential matters of the Company and its suppliers, clients, employees, agents, and other consultants, whether or not in writing, of a private, secret or confidential nature concerning the Company’s and its subsidiaries’ or affiliates’ business or financial affairs (“Proprietary Information”). Consultant will not disclose, directly or indirectly, such Proprietary Information to anyone or use the same, directly or indirectly, for its own benefit or the benefit of any third party, either during or after its engagement by the Company, except (i) as required in the course of performing its duties hereunder, and (ii) for such matters which may at that time be in the public domain other than through the wrongful participation of the Consultant in such disclosure or obtained from third parties without a right to disclose, (iii) released by the Company publicly in writing or (iv) authorized or required to be released by a court of competent jurisdiction or governmental agency. Consultant acknowledges that Proprietary Information is and will be the exclusive property of the Company and is of critical importance to the Company and a violation of the provisions of this Section 5(a) would seriously and irreparably impair and damage the business of the Company. Consultant agrees to keep all Proprietary Information in a fiduciary capacity for the benefit of the Company. Consultant will deliver promptly to the Company on the termination of its engagement, or at any time Company may request, all memoranda, notes, records, reports, manuals and other documents in every media related to Company’s business or proposed business, or developed for the Company during the Term (and all copies thereof) in whatever form, including electronic versions thereof, which the Consultant may then possess or have under its control.
(b) Developments. The Consultant will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to practice by the Consultant or under its direction or jointly with others during or in the course of its engagement with the Company (all of which are collectively referred to in this Agreement as “Developments”). Consultant agrees that all Developments are Works Made for Hire within the meaning and purview of Section 101 of the United States Copyright Act (17 U.S.C. § 101) and will be the exclusive property of the Company. Further, Consultant agrees to assign and does assign to the Company, its successors and assigns (or any person or entity designated by the Company) in perpetuity all right, title and interest in and to all Developments and all present or future rights in any related patents, patent applications, copyrights and copyright applications and other proprietary rights and applications and registrations with respect to same. To the extent that the Developments do not qualify as Works Made for Hire, Consultant by this Agreement irrevocably transfers, assigns and conveys the exclusive ownership of such Developments to the Company, its successors and assigns (or any person or entity designated by the Company) in perpetuity free and clear of any liens, claims, or other encumbrances, to the fullest extent permitted by law. Consultant expressly waives all “moral” rights in every Development and work of Consultant developed under this Agreement. Consultant agrees to cooperate fully with the Company and any of its affiliates, both during and after its engagement, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and other countries) relating to Developments. The Consultant will, without expense but at no additional compensation, sign and cause its employees to sign all papers, including, without limitation, copyright and industrial design applications, patent applications, declarations, oaths, formal assignments, assignment of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Development. In the event Company is unable, after reasonable efforts, to procure the signature of Consultant (or Consultant’s employee, as applicable) on any such documents, Consultant by this Agreement appoints Company as its attorney-in-fact to execute any such documents, and this appointment will be deemed coupled with an interest.
(c) Non-Competition; Non-Solicitation. During the Term and for a period of six (6) months after the expiration or termination of this Agreement, for any reason or no reason, the Consultant will not directly or indirectly either for itself or for any other person, company or business organization: (i) operate or own, directly or indirectly, any business that directly competes with the Company; (ii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away, any of the customers, business or prospective customers of the Company; or (iii) recruit, solicit or induce, or attempt to induce, any employee of, or consultant to, the Company or any of its subsidiaries or affiliates to terminate their employment with, or otherwise cease their consulting or other relationship with, the Company or any of its affiliates.
(d) Non-Disparagement. The Consultant acknowledges and agrees that the reputation of the Company, its affiliates and subsidiaries, is integral to its business and mission. Therefore, the Consultant agrees to refrain from making any disparaging remarks or comments regarding the Company or its affiliates or otherwise engaging in any activities or omissions in the course of performing services hereunder which could have a material adverse effect on the Company’s business or reputation, including without limitation, violation of any statutes or regulations concerning bribery or other illegal activities.
(e) Return of Company Property. To the extent the Company provides the Consultant with any tangible property or intellectual property or the extent the Consultant develops any tangible property or intellectual property belonging to the Company as provided otherwise in this Agreement, the Consultant will hold such property in trust for the benefit of the Company, use best efforts to preserve such property and promptly to deliver such property into the possession of the Company at the Company’s request.
(f) Consultant Employees and its Consultants. Prior to performing any Services, Consultant will cause its employees and permitted consultants to execute Confidentiality, Non-Compete, Intellectual Property Assignment and Non-solicit Agreements imposing rights and remedies substantially similar to the obligations of Consultant under this Agreement, which agreements will specify that Company has the right but not the obligation to enforce such agreements.
(g) Survival. The terms of this Section 5 will survive expiration or termination of this Agreement for any reason.
6. Representations and Warranties. Consultant represents and warrants that all works prepared and submitted by it under this Agreement will be original and will not infringe any copyright or infringe or violate any other proprietary or other rights of any other person or entity, and that Consultant has not previously assigned, transferred or otherwise encumbered any rights granted to the Company under this Agreement. The foregoing warranties and representations will survive expiration or termination of this Agreement for any reason.
7. No Authority to Bind Company. The Consultant will not have any authority to commit or bind the Company to any contractual or financial obligations without the prior written consent of the Company as directed by the Company’s President each instance.
8. Disclosure of Conflicts. The Consultant agrees promptly to disclose fully to the Company any of its activities that may offer any potential conflict of interest issues with the Company or any of Company’s existing, former or prospective clients of which Consultant may be or become aware.
9. Notice. All notices, requests, consents and other communications required or permitted to be given under this Agreement, will be in writing and will be deemed to have been duly given if delivered personally or sent via confirmed overnight delivery, or via electronic mail with receipt confirmed, as follows (or to such other address as either party will designate by notice in writing to the other in accordance with this section):
|If to the Company:||Office of the President|
|400 Ave D, Suite 10|
|Williston, VT 05495USA|
|With a copy to:||Sharon J. Merritt, Esq.|
|Merritt & Merritt|
|60 Lake Street, 2nd Floor|
|Burlington, VT 05401 USA|
If to the Consultant, to the address set forth on the signature page.
Notice is effective on receipt or refusal.
10. Assignment. This Agreement, and Consultant’s rights and obligations under this Agreement, are personal to Consultant and may not be assigned or transferred by operation of law or otherwise by Consultant without the prior, written consent of Company in each instance, which consent is in the sole judgment of Company. This Agreement will be binding upon and will inure to the benefit of the Company and its successors and assigns and the Consultant and any of its permitted successors and assigns. It is understood that this Agreement may be assigned by the Company, or transferred by operation of law, to any affiliate of the Company or to any other organization which succeeds to the business or assets of the Company or any of its divisions or product lines by reason of any sale, merger, consolidation or other similar transaction.
11. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and which together constitute one and the same instrument. This Agreement may be executed by e-signatures, delivery and retention or by sign, scan and electronic delivery.
12. Amendment and Waiver. This Agreement may be amended, modified, superseded, cancelled, renewed or extended and the terms or covenants hereby may be waived, only by a written instrument signed by all of the parties hereto, or in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof will in no manner affect the right at a later time to enforce the same. No waiver by the party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, will be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.
13. Section Headings. The headings in this Agreement are intended solely for reference and will be given no effect in the interpretation of this Agreement.
14. Governing Law, Exclusive Jurisdiction, and Dispute Resolution. This Agreement will be governed by and construed and enforced in accordance with US federal law to the extent applicable and the laws of the State of Delaware without application of principles of conflicts laws. The parties agree that the State and Federal courts located in the State of Vermont will have exclusive jurisdiction of any dispute arising under or in connection with this Agreement. Consultant expressly submits to the personal and subject matter jurisdiction of such courts for such purpose. The parties agree not to contest venue as applicable in Burlington, Vermont USA. Both parties waive right to trial by jury.
15. Severability. In case any provision of this Agreement will be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby provided the purpose of this Agreement is maintained.
16. Entire Agreement. This Agreement will constitute the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, in respect thereof. All obligations of the parties that by their nature survive will survive expiration or termination of this Agreement for any reason.
17. Injunctive Relief. In the case of any breach or threatened breach of Section 5 by the Consultant, the parties agree that in addition to all other remedies available to the Company at law and equity, the Company would be irreparably harmed, and Company will be entitled to injunctive or other equitable relief without posting a bond and without further proof of irreparable harm.
18. Indemnity. Consultant will indemnify, defend and hold the Company harmless from any costs or expenses (including reasonable attorneys’ fees) incurred by the Company as a result of or arising out of any breach of this Agreement by Consultant, and/or from any loss or claim arising out of malfeasance or negligence of Consultant, Consultant’s agents, employees or representatives in the performance of Consultant’s Services under this Agreement, and/ or assessment or liability for breach of any law or regulation to which Consultant is subject as may be assessed against the Company.
[Signature Page Follows]
By signing below, each party represents and warrants to the other that: (i) the undersigned has full power and authority to consummate this Agreement; and (ii) This Agreement constitutes a valid and binding obligation of such party, enforceable in accordance with its terms.
|Accepted and Agreed as of the Commencement Date:|
|By:||/s/ Jeffrey Peck|
|Jeffrey Peck, President|
|renewz sustainable solutions, inc.|
|By:||/s/ Sassoon Peress|
|Sassoon Peress, Chief Executive Officer|
Address for notice purposes:
Mr. Sassoon Peress, Chief Executive Officer
renewz sustainable solutions, inc.
4710 rue St-Ambroise, Unit 242
Montreal, Canada H4C2C7
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Services will be as determined by the Company from time to time as provided to Consultant during the Term, but will include:
|Business development on iSun platforms with Company’s (including Company affiliate’s) existing customer base and new customers|
|Brand Management (including investor relations, marketing, social media, and other brand related activities)|
|Innovation Strategy and Partnerships|
|Such other Services as the Company may lawfully direct in furtherance of the Company’s interests|
Consultant will report to the President/CEO of the Company.
The parties agree to execute any further agreements as may be reasonable to effect the purposes of this Agreement and Consultant’s consultancy.
All Services performed under this Agreement will be personally performed by Mr. Sassoon Peress unless otherwise specifically permitted in each instance by Company, and then for no additional fees or expenses payable by Company other than the compensation to Consultant provided in Schedule 2 of this Agreement.
This Agreement is being executed contemporaneously with a Merger Agreement and ancillary agreements.
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CONSULTING FEES; REIMBURSABLE EXPENSES
At closing of the transaction contemplated to occur simultaneously with this Agreement, Consultant will be paid $US34,027.83 according to Schedule 3 for debt owed to Consultant by iSun Energy LLC, plus an amount of US$1,107.18 according to Schedule 4 for recurring expenses owed to Consultant by iSun Energy LLC.
During the Term of this Agreement, Consultant will be paid on invoice therefore the annual fee of US$175,000 (US One Hundred Seventy-Five Thousand Dollars), payable in pro-rata installments as equal or nearly equal as possible beginning on the Commencement Date and on the 1st of the month thereafter until termination of this Agreement as otherwise provided in this Agreement.
Company will reimburse Consultant for covered expenses related to the provision of Services up to a total of US$24,000 (US Twenty-Four Thousand Dollars)/year within thirty (30) days of presentation of accepted invoices. “Covered expenses” include a vehicle, a business mobile phone and other business-related expenses approved by the President of the Company in writing in each instance. Invoices must be accompanied by receipts or other documentation of expenses as then required by the Company.
Consultant acknowledges that the Company has no further obligation to pay Consultant for any past or future expenses related to expenses listed on Schedule 3 or Schedule 4 after the payments for these expenses delivered at closing, and Consultant represents that payments in respect of Schedules 3 and 4 represent all past due amounts owed from iSun Energy, LLC to Consultant as at the date of the closing of the transaction contemplated by a Merger Agreement signed as of the same date as this Agreement.
No other compensation or expense reimbursements will be due or payable to the Consultant without the prior, written consent of the Company in each instance.
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DEBT REPAYMENT FROM ISUN ENERGY LLC TO RENEWZ
Balance of Debt Repayment Due at Closing to renewz through Jan 31, 2021:
RECURRING SUBSCRIPTIONS FOR ISUN ENERGY LLC OWED TO RENEWZ
Balance of Recurring Subscriptions Due at Closing to renewz 12-31-20 to 1-31-21:
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In accordance with the Agreement and Plan of Merger (the “Agreement”) by and among The Peck Company Holdings, Inc., a Delaware corporation (the “Company”), Peck Mercury, Inc.a Delaware corporation, iSun Energy LLC, a Delaware limited liability company, and Sassoon M. Peress (the “Stockholder”), the Stockholder agrees as follows:
1. Grant of Irrevocable Proxy.
(a) The Stockholder, with respect to all of the shares (the “Shares”) of the Company’s Common Stock, par value $0.0001 per share (the “Common Stock”) owned, now or in the future (including, without limitation Common Stock acquired by the exercise of Warrants issued to the Stockholder in connection with the Agreement or the Peress Incentive Agreement), by the Stockholder, the Stockholder hereby grants to Jeffrey Peck (the “Holder”) an irrevocable proxy under Section 212 of the Delaware General Corporation Law to vote the Shares in any manner that the Holder may determine in his s sole and absolute discretion to be in the Holder’s own best interest, all of the Shares with respect to which the Stockholder has voting power at the date hereof at any meeting of stockholders of the Company or action by written consent with respect to any matter or the transactions contemplated thereby. It is expressly understood and agreed that the foregoing irrevocable proxy is hereby granted to the Holder by the Stockholder pursuant to the Agreement and is coupled with an interest.
(b) Because of this interest in the Shares, the Holder shall have no duty, liability and obligation whatsoever to the Stockholder arising out of the exercise by the Holder of the foregoing irrevocable proxy. The Stockholder expressly acknowledges and agrees that (i) the Stockholder will not impede the exercise of the Holder’s rights under the irrevocable proxy and (ii) the Stockholder waives and relinquishes any claim, right or action the Stockholder might have, as a stockholder of the Company or otherwise, against the Holder or any of his affiliates in connection with any exercise of the irrevocable proxy granted hereunder.
(c) The Stockholder has the right to notice of or to any and all special and general meetings of stockholders during the term of this Irrevocable Proxy and further severally agrees that if any notice is given by the Company to the Stockholder, such notice will be deemed to have been validly given to the Stockholder for all purposes.
(d) The Stockholder may, at his option, terminate this Irrevocable Proxy upon the occurrence of any of the following:
(i) Jeffrey Peck is no longer either the Chief Executive Officer or the Chairman of the Board of Directors of the Company (if Mr. Peck still holds one but not both titles the Stockholder may not terminate this Irrevocable Proxy);
(ii) The Company terminates the Consulting Agreement between the Company and renewz sustainable solutions, inc., dated January 19, 2021 (the “Consulting Agreement”) without “Cause”, as defined in the Consulting Agreement.
2. Legend. The Stockholder agrees to permit an appropriate legend on certificates evidencing the Shares reflecting the grant of the irrevocable proxy contained in the foregoing Section
3. Representations and Warranties. The Stockholder represents and warrants to the Holder as follows:
(a) The Stockholder has the all necessary rights, power and authority to execute, deliver and perform his obligations under this Irrevocable Proxy. This Irrevocable Proxy has been duly executed and delivered by the Stockholder and constitutes his legal and valid obligation enforceable against the Stockholder in accordance with its terms.
(b) The Stockholder is the record owner of the Shares listed under his name on Appendix A and the Stockholder has plenary voting and dispositive power with respect to such Shares; the Stockholder owns no other shares of the capital stock of the Company; there are no proxies, voting trusts or other agreements or understandings to which such Stockholder is a party or bound by and which expressly require that any of the Shares be voted in any specific manner other than this Irrevocable Proxy; and such Stockholder has not entered into any agreement or arrangement inconsistent with this Irrevocable Proxy.
4. Equitable Remedies. The Stockholder acknowledges that irreparable damage would result if this Irrevocable Proxy is not specifically enforced and that, therefore, the rights and obligations of the Holder may be enforced by a decree of specific performance issued by a court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies shall, however, not be exclusive and shall be in addition to any other remedies which the Holder may otherwise have available.
Dated January 19, 2021.
|/s/ Sassoon M. Peress|
|Sassoon M. Peress|
January 21, 2021
The Peck Company Holdings, Inc. Closes Acquisition of iSun Energy LLC, Changes Name to iSun, Inc. and Ticker Symbol to ISUN
SOUTH BURLINGTON, Vt.—(BUSINESS WIRE)— iSun, Inc. (NASDAQ:ISUN) ( “iSun”), formerly The Peck Company Holdings, Inc. (“Peck”), a leading commercial solar engineering, procurement and construction (“EPC”) company and iSun Energy LLC (“iSun”), a provider of innovative solar power, electric mobility and smart city solutions for government, commercial, retail, academic and data-center projects, today announced that they have closed on the acquisition of iSun Energy LLC, announced on January 5th, 2021.
iSun (formerly Peck) established a dominant position over the past 50 years as a leading electrical and data contractor, as well as the largest solar EPC (engineering, procurement and construction) in Vermont, focused on high-quality commercial, industrial and small-utility scale solar projects. It has constructed over 200 megawatts of solar projects to date (enough to power 38,000 homes). Despite COVID-related challenges last year, there were no project cancellations. Peck has been executing a disciplined growth plan since becoming a public company in June 2019, and an accretive merger & acquisition strategy has been a top priority. Acquiring iSun and the iSun® Brand and its innovations is consistent with the Company’s evolution toward serving its customers as a full-service energy solutions provider. Furthermore, adding higher margin products and energy services will have a positive impact on typical solar EPC margins. Combining a profitable EPC business for solar, electrical and data contracting with award-winning products and platforms that are modular, scalable and connected is a powerful combination that differentiates the Company from other solar or EV (electric vehicle) charging companies.
|●||iSun now trades on Nasdaq as ISUN and replaces PECK|
|●||iSun near term pipeline across New England, New York and other locations to be announced shortly.|
|●||Combined group backlog reaches USD $60M|
|●||The iSun® Brand companies will continue to provide its trusted solar, electrical, and data services to its commercial and industrial customers|
|●||The iSun® Brand offerings include the iSun Energy & Mobility Hub, a solar canopy for EV charging, and the iSun Oasis Smart Solar Bench will immediately begin to be offered by the entire group to its current and new prospect base.|
|●||Timely market expansion capitalizes on the Biden administration’s plan to make major public investments in renewables and electric mobility infrastructure, including in 500,000 electric vehicle charging stations.|
|●||Industry experts anticipate 100 GWs of solar infrastructure will be constructed over the next 5 years, representing 50% growth.1|
iSun® Brand Products
The flagship iSun Energy & Mobility Hub is the result of 30 years of passion, dedication, and innovation through sustainability. The iSun solar EV carport charging systems incorporate solar panels to charge electric vehicles while providing unparalleled software insights into data surrounding the energy produced, consumed, air quality effects and other key metrics. The iSun Oasis Smart Solar Bench is expected to be an integral part in developing smart cities and campuses and has the ability to charge any mobile device through integrated solar panels that collect and store energy throughout the day. iSun’s accompanying data platform allows for monitoring and analysis of key metrics through built in IoT (Internet of Things) sensors. The platform also affords both physical and digital advertising and branding, for additional recurring revenue opportunities. iSun’s Augmented Reality 3D software platform helps clients visualize their projects before they are built, making it easy for our clients to adopt sustainable solutions and to understand their impact on sustainability.
Jeffrey Peck, Chairman of the Board and Chief Executive Officer of iSun, commented, “The acquisition of iSun Energy LLC and name change of Peck to iSun, Inc., came to a swift closing due to great coordination and aligned interests. Our teams are already collaborating together on a number of new opportunities that have become available to us since our announcements. We appreciate the diligent approach to the process by Sass Peress and team, and welcome them to the family. As our new Chief Innovation and Experience Officer, Sass has been empowered to deliver innovative solar energy, electric vehicle infrastructure, and smart city technologies that we intend to incorporate into our basket of goods shortly. The importance of sustainability is a growing metric for governments, organizations and corporations around the world. In order for a growing audience to learn more about the good we do, the iSunOS platform will report on the total carbon reduced by our combined solar ground mount, rooftop, carport and other clean energy or mobility products. Sass will also contribute his experience in Investor Relations, Marketing and Business Development to our new growth opportunities. We welcome Sass to our executive team and look forward to many years of partnership.”
Sass Peress, Founder of iSun Energy LLC, added, “Executing this swift closing would not have happened without the tremendous work by our combined teams. We are grateful for the opportunity to be a part of such a great company and will focus ourselves on the delivery of enhanced experiences for our customers, shareholders and other stakeholders, so that the iSun® Brand continues its leadership in sustainability. Having first coined the iSun brand in 1999, and now having it on the NASDAQ exchange as a ticker symbol, is something I could have never dreamed of. We will now take the brand and our company to heights that aim to engage, inspire and elevate. Novel technologies in development, alone or in partnership, will provide enhanced revenue opportunities, while the existing business delivers great execution and contribution to financial performance.”
iSun’s innovations were recognized this year by the Solar Impulse Foundation of Bertrand Piccard as one the globe’s Top 1000 Sustainability Solutions. As a winner, this award will result in the iSun solution being presented to hundreds of government entities around the world, including various municipal, state and federal agencies in the United States.
About iSun, Inc.
Headquartered in South Burlington, VT, iSun, Inc. (NASDAQ: ISUN) is a business rooted in values that align people, purpose, innovation and sustainability. Ranked by Solar Power World as one of the leading commercial solar contractors in the Northeastern United States, iSun provides energy services, smart city innovations and clean mobility infrastructure to customers for projects from smart solar mobile phone and electric vehicle charging, up to multi-megawatt renewable energy solutions. Since entering the renewable energy market in 2012, iSun has installed over 200 megawatts of rooftop, ground mount and EV carport solar systems (equal to power required for 38,000 homes). We continue to focus on profitable growth opportunities. For more information, visit www.isunenergy.com
Forward Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, statements about (i) the benefits of the proposed acquisition, including future financial and operating results, cost savings and synergies, effects on cash flow, market accessibility, financing opportunities, enhancements to revenue and accretion to reported earnings that may be realized from the proposed acquisition; (ii) iSun’s plans, objectives, expectations and intentions and other statements contained in this press release that are not historical facts; and (iii) other statements identified by words such as “expects” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “targets,” “projects,” or words of similar meaning generally intended to identify forward-looking statements. These forward-looking statements are based upon the current beliefs and expectations of the respective management of iSun and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are beyond the control of iSun. In addition, these forward-looking statements are subject to assumptions with respect to future business strategies and decisions that are subject to change. Actual results may differ materially from the anticipated results discussed in these forward-looking statements because of possible uncertainties.