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.
Officer Agreement
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.
Consulting Agreement
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.
Irrevocable Proxy
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.
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.
(d) Exhibits
Number Description
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.
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