EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
ACCESSITY CORP.
AND
PACIFIC ETHANOL, INC.
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT AND PLAN OF
MERGER"), dated as of March 23, 2005, between Pacific Ethanol, Inc., a Delaware
corporation ("PACIFIC ETHANOL"), and Accessity Corp., a New York corporation
("ACCESSITY"), pursuant to Section 253 of the Delaware General Corporation Law
(the "DGCL") and Section 907 of the New York Business Corporation Law (the
"NYBCL").
W I T N E S S E T H
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WHEREAS, Pacific Ethanol is a corporation duly organized and in good
standing under the laws of the State of Delaware;
WHEREAS, Accessity a corporation duly organized and in good standing
under the laws of the State of New York. The name under which Accessity was
formed is UNISEARCH, INC.;
WHEREAS, Pacific Ethanol is the wholly-owned subsidiary of Accessity;
and
WHEREAS, the Board of Directors of Pacific Ethanol and the Board of
Directors of Accessity have determined that it is advisable and in the best
interests of each of them that Accessity merge with and into Pacific Ethanol
upon the terms and subject to the conditions herein provided.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, the parties hereto agree as follows:
ARTICLE 1
MERGER
------
Upon the filing of a Certificate of Ownership and Merger with the
Secretary of State of the State of Delaware and the Certificate of Merger with
the Secretary of the State of New York (the "EFFECTIVE TIME"), Accessity shall
be merged with and into Pacific Ethanol (the "MERGER"), and Pacific Ethanol
shall be the corporation surviving the Merger (hereinafter referred to as, the
"SURVIVING CORPORATION").
ARTICLE 2
DIRECTORS, OFFICERS AND GOVERNING DOCUMENTS
-------------------------------------------
The directors of the Surviving Corporation immediately after the
Effective Time shall be Barry Siegel, Kenneth J. Friedman and Bruce S. Udell.
The officers of the Surviving Corporation immediately after the Effective Time
shall be as follows:
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NAME POSITION
---- --------
Barry Siegel Chairman of the Board, President and Chief
Executive Officer
Philip B. Kart Senior Vice President, Secretary and Chief
Financial Officer
These officers and directors shall hold office in accordance with the
Certificate of Incorporation and Bylaws of the Surviving Corporation.
The Certificate of Incorporation and Bylaws of the Surviving
Corporation as in force and effect at the effective time and date of the Merger
will be the Certificate of Incorporation and Bylaws of said Surviving
Corporation and will continue in full force and effect until changed, altered,
or amended as therein provided and in the manner prescribed by the provisions of
the laws of the State of Delaware of said Surviving Corporation.
ARTICLE 3
NAME
----
The name of the Surviving Corporation shall be: Pacific Ethanol, Inc.
ARTICLE 4
EFFECT OF MERGER ON SHARES OF STOCK OF ACCESSITY
------------------------------------------------
At the Effective Time, except shares held by dissenting shareholders,
every share of common stock, par value $0.015 per share, of Accessity
immediately prior to the Effective Time shall be converted into and become one
(1) share of common stock, par value $0.001 per share, of the Surviving
Corporation. At the Effective Time, each issued and outstanding share of stock
of the Surviving Corporation held by Accessity shall be canceled, without the
payment of consideration therefor.
ARTICLE 5
EFFECT OF THE MERGER
--------------------
The Merger shall have the effect set forth in Section 259 of the DGCL.
ARTICLE 6
APPROVAL
--------
This Agreement and Plan of Merger, as made and approved, has been
submitted to the shareholders of Accessity for their approval or rejection in
the manner prescribed by the provisions of the NYBCL and shall be approved in
the manner prescribed by the DGCL.
ARTICLE 7
AUTHORIZATION
-------------
The Board of Directors and the proper officers of Accessity and of the
Surviving Corporation are hereby authorized, empowered, and directed to do any
and all acts and things, and to make, execute, deliver, file, and/or record any
and all instruments, papers, and documents which shall be or become necessary,
proper, or convenient to carry out or put into effect any of the provisions of
this Agreement and Plan of Merger or of the Merger herein provided for.
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ARTICLE 8
FURTHER ASSURANCES
------------------
From time to time, as and when required by the Surviving Corporation or
by its successors and assigns, there shall be executed and delivered on behalf
of Accessity such deeds and other instruments, and there shall be taken or
caused to be taken by the Surviving Corporation all such further and other
actions, as shall be appropriate or necessary in order to vest, perfect or
confirm in the Surviving Corporation the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers and
authority of Accessity, and otherwise to carry out the purposes of this
Agreement and Plan of Merger. The officers and directors of the Surviving
Corporation are fully authorized, on behalf of the Surviving Corporation or
Accessity, to take any and all such actions and to execute and deliver any and
all such deeds, documents and other instruments.
ARTICLE 9
RESERVATION OF RIGHTS
---------------------
The Board of Directors of Accessity reserves the right, notwithstanding
shareholder approval and without further action by the shareholders, to elect
not to proceed with the Merger, if at any time prior to consummating such
Merger, the Board of Directors, in its sole discretion, determines that it is no
longer in the best interests of Accessity and its shareholders. The Board of
Directors may also elect not to proceed with the reincorporation if it receives
demands for the exercise of dissenters' rights from holders of shares of common
stock representing more than one percent (1%) of its issued and outstanding
shares of common stock. In addition, the Board of Directors reserves the right
to consummate the Merger for up to twelve (12) months following shareholder
approval thereof. However, at the present time, the board of directors intends
to proceed with the Merger, as presented herein without delay.
ARTICLE 10
CAPITALIZATION
--------------
Accessity has issued and outstanding 2,339,414 shares of Common Stock,
0 shares of Preferred Stock (0 shares of Series A Preferred Stock) and 0 shares
of Junior Participating Preferred Stock. Except as otherwise provided by the New
York Business Corporation Law, the holders of all of the foregoing classes and
series of stock of Accessity shall have voting rights, voting together as a
class. None of these shares are subject to change prior to the Effective Time of
the Merger.
Pacific Ethanol has issued and outstanding One Hundred (100) shares of
Common Stock. No shares Preferred Stock are issued and outstanding. Except as
otherwise provided by the General Corporation Law of the State of Delaware, the
holders of Common Stock of Pacific Ethanol shall exclusively possess all voting
power of the corporation. None of these shares are subject to change prior to
the Effective Time of the Merger.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Plan of Merger as of the date first above written.
ACCESSITY CORP.,
a New York corporation
By: /S/ BARRY SIEGEL
-----------------------------------
Name: BARRY SEIGEL
---------------------------------
Title: CHAIRMAN AND CEO
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PACIFIC ETHANOL, INC.,
a Delaware corporation
By: /S/ BARRY SIEGEL
-----------------------------------
Name: BARRY SEIGEL
---------------------------------
Title: CHAIRMAN AND CEO
--------------------------------
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