FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
Exhibit
10.11
FIRST
AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
THIS
FIRST AMENDMENT to the Agreement and Plan of Merger by and among River Hawk
Aviation, Inc., a corporation formed under the laws of the State of Nevada
(“River Hawk”), Profile Aviation Center, Inc., a corporation
formed under the laws of the State of North Carolina (“Profile
Aviation”), PAC Acquisition Corp., a corporation formed under the laws
of the State of North Carolina and a wholly owned subsidiary of River Hawk
(the
“PAC Merger Sub”), Profile Services, Inc., a corporation formed
under the laws of the State of Delaware (“Profile Services”),
and PS Acquisition Corp., a corporation formed under the laws of the
State of Delaware and a wholly owned subsidiary of River Hawk (the “PS
Merger Sub”)(Profile Aviation and Profile Services shall collectively
be referred herein as “Profile”) dated May 23, 2007 (the
“Agreement”), entered into this 24th
day of August
2007, amends the Agreement as follows (the
“Amendment”):
RECITALS
A. River
Hawk, Profile, PAC Merger Sub and PS Merger Sub (collectively, the “Parties”)
entered into an Agreement and Plan of Merger on May 23, 2007;
B. In
furtherance of the Closing of the Agreement, the Parties wish to amend the
Agreement in order to restructure the terms of consideration; and
C. Unless
otherwise defined in this Amendment, capitalized terms have the meaning as
defined in the Agreement.
Accordingly,
the Parties hereby agree as follows:
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1.
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Section
1.01 of the Agreement is hereby deleted in its entirety and replaced
as
follows:
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SECTION
1.01 THE SHARE PURCHASE
Consideration. On
the Closing Date, (as hereinafter defined), River Hawk shall purchase from
Profile one hundred percent (100%) of all issued and outstanding shares of
common stock of Profile (the “Profile Shares”), in exchange for
the following consideration and according to the following terms:
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(a)
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Profile
shall receive one million, five hundred thousand (1,500,000) shares
of
River Hawk Series A Preferred Stock (“Series A
Preferred”) to be shall be issued following a contemplated
recapitalization of River Hawk’s issued and outstanding capital stock,
which River Hawk shall undertake prior to or immediately following
the
Closing;
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(b)
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Profile
shall receive four million (4,000,000) shares eight percent (8%)
Cumulative Series B Convertible Preferred Stock of River Hawk, which
River
Hawk shall designate with the following
provisions:
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(i)
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an
annual, cumulative coupon rate of
8%;
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(ii)
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holders
of the (“Series B Preferred”) shall have the option to
either (a) elect to convert the Series B Preferred shares into common
stock of the Company at a ratio of 1:1, on an all or nothing basis
or (b)
upon 30 days notice put the Series B Preferred shares to the Company
or
the Company’s designee at a purchase price of One dollar ($1.00) per share
(the “Conversion Price”) according to the following schedule (which
schedule shall not be part of the filed designations but is enforceable
under this Agreement, on an all or nothing
basis:
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1.
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one
million, five hundred (1,500,000) shares of Series B Preferred at
any time
following the Closing;
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2.
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one
million (1,000,000) shares of Series B Preferred at any time following
twelve (12) months from the Effective
Date;
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3.
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one
million (1,000,000) shares of Series B Preferred at any time following
twenty-four (24) months from the Effective Date;
and
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4.
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five
hundred thousand (500,000) shares of Series B Preferred at any time
following thirty-six (36) months from the Effective
Date.
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(iii)
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River
Hawk shall have the option, upon five (5) days notice, to repurchase,
the
Series B Preferred shares from the Series B Preferred shareholders,
unless
the shareholder(s) elects at such time to convert the shares
into common
stock of the Company at the Conversion Price, in accordance with
the
schedule listed in Section 1.01(b)(ii), above;
and
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(iv)
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River
Hawk shall designate two (2) individuals who shall, to Profile’s
reasonable satisfaction, personally guarantee River Hawk’s
obligation to redeem the Series B Preferred, which obligation
shall not be
deemed joint and severable among the designated
individuals.
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(c)
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River
Hawk shall assume the liabilities of Profile, which are estimated
to equal
approximately Eight Million U.S. Dollars ($8,000,000), which estimate
is
subject to due diligence prior to the Closing
Date.
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2.
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Except
as otherwise provided herein, all other terms of the Agreement remain
in
full force and effect.
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3.
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This
Amendment sets forth the entire understanding and agreement of
the
parties, and supersedes any and all prior contemporaneous
oral or written agreements or understandings between the parties
as to the
subject matter of this Amendment. This Amendment shall be
governed by the laws of the State of
Michigan.
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4.
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This
Amendment may be executed by facsimile and in one (1) or more
counterparts, each of which shall be deemed an original, but all
of which
together shall constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed
as
of the date listed above.
RIVER
HAWK AVIATION, INC.
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By:
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/s/ Xxxxxx Xxxxxxxx |
| Name: | Xxxxxx Xxxxxxxx |
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Title:
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President,
Chief Executive Officer
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PAC
ACQUISITION CORP.
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By:
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/s/ Xxxxxx Xxxxxxxx |
| Name: | Xxxxxx Xxxxxxxx |
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Title:
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President
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PS
ACQUISITION CORP.
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By:
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/s/ Xxxxxx Xxxxxxxx |
| Name: | Xxxxxx Xxxxxxxx |
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Title:
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President
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PROFILE
AVIATION CENTER, INC.
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By:
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/s/ Xxxxxx X. Xxxxx |
| Name: |
Xxxxxx
X. Xxxxx
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Title:
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President
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PROFILE
AVIATION SERVICES, INC.
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By:
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/s/ Xxxxxx X. Xxxxx |
| Name: |
Xxxxxx
X. Xxxxx
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Title:
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President
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