Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF AUGUST 18, 2005
AMONG
TEDA TRAVEL, INC.
TEDA FRACTIONAIR MERGER SUB, INC.,
AND
FRACTIONAIR, INC.
1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of August
18, 2005, is entered into by and among TEDA TRAVEL, INC., a Florida corporation
("Teda"), TEDA FRACTIONAIR MERGER SUB, INC., a Nevada corporation and
wholly-owned subsidiary of Teda ("Merger Subsidiary"), and FRACTIONAIR, INC., a
Delaware corporation ("FractionAir"). Capitalized terms used in this Agreement
and not defined in context shall have the meanings ascribed to them in Section
10.7 hereof.
WHEREAS, the respective Boards of Directors of Teda, Merger Subsidiary and
FractionAir have approved the merger of Merger Subsidiary with and into
FractionAir, with FractionAir being the surviving corporation as a wholly-owned
subsidiary of Teda (the "Merger"), all upon the terms and subject to the
conditions set forth herein;
WHEREAS, it is intended that, for federal income tax purposes, the Merger
shall qualify as a reorganization under the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder (the "Code").
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I The Merger
Section 1.1 The Merger. Upon the terms and subject to the conditions of
this Agreement, at the Effective Time, Merger Subsidiary shall be merged with
and into FractionAir and the separate existence of Merger Subsidiary shall
thereupon cease. FractionAir shall continue as the surviving corporation in the
Merger (thereafter referred to as the "Surviving Corporation") under the laws of
the State of Nevada as a wholly-owned subsidiary of Teda. Throughout this
Agreement, the term "FractionAir" shall refer to such entity prior to the Merger
and the term "Surviving Corporation" shall refer to it in its status as the
surviving corporation in the Merger.
Section 1.2 Closing. The closing of the Transactions (the "Closing") will
take place as promptly as practicable (and in any event within two business
days) after satisfaction or waiver of the conditions set forth in Article VII
(other than conditions that require the delivery of documents, which may be
satisfied at the Closing). The Closing shall be held at such time and place as
agreed to in writing by the parties hereto. The date on which the Closing occurs
is referred to herein as the "Closing Date". At the Closing each of Teda and
FractionAir shall deliver the agreements, certificates and other documents
required to be delivered and which have not been delivered prior to the Closing.
At the end of the Closing, FractionAir shall file with the Secretary of State of
the State of Nevada a Articles of Merger (the "Articles of Merger") with respect
to the Merger pursuant to and in compliance with this Agreement and the Business
Corporation Act of the State of Nevada (the "Nevada Law").
Section 1.3 Effective Time of the Merger. The Merger shall become effective
upon the filing of the Articles of Merger with the Secretary of State of the
State of Nevada, or at such later time as specified therein. When used in this
Agreement, the term "Effective Time" shall mean the time at which the Articles
of Merger becomes effective in accordance with Nevada Law.
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ARTICLE I The Merger - continued
Section 1.4 Effect of the Merger. The Merger shall, from and after the
Effective Time, have all the effects provided by applicable Law. If, at any time
after the Effective Time, the Surviving Corporation shall consider or be advised
that any further deeds, conveyances, assignments or assurances in Law or any
other acts are necessary, desirable or proper to vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation the title to any property or
rights of FractionAir or Merger Subsidiary, by reason or as a result of the
Merger, or otherwise to carry out the purposes of this Agreement, FractionAir
and Merger Subsidiary agree that the Surviving Corporation and its proper
officers and directors shall execute and deliver all such deeds, conveyances,
assignments and assurances in Law and do all things necessary, desirable or
proper to vest, perfect or confirm title to such property or rights in the
Surviving Corporation and otherwise to carry out the purposes of this Agreement,
and that the proper officers and directors of the Surviving Corporation are
fully authorized in the name of each of FractionAir and Merger Subsidiary or
otherwise to take any and all such action.
ARTICLE II The Surviving Corporation
Section 2.1 Certificate of Incorporation. The articles of incorporation of
FractionAir, as amended, shall continue as the articles of incorporation of the
Surviving Corporation until thereafter duly amended.
Section 2.2 By-Laws. The by-laws of FractionAir shall continue after the
Effective Time as the by-laws of the Surviving Corporation until thereafter duly
amended.
Section 2.3 Board of Directors; Officers. The members of the Board of
Directors and the officers of the Surviving Corporation following the Merger
shall be the directors and officers of FractionAir immediately prior to the
Effective Time, and such directors and officers shall continue in office until
the earlier of their respective death, resignation or removal and the time that
their respective successors are duly elected or appointed and qualified.
ARTICLE III Stock Issuance
Section 3.1 Merger Consideration.
(a) As of the Effective Time, by virtue of the Merger and without any
action on the part of any shareholder of FractionAir or Merger Subsidiary:
(i) Each share of common stock, par value $.001 per share, of
Merger Subsidiary that is issued and outstanding immediately prior to
the Effective Time shall be automatically converted without any
further action into one fully paid and non-assessable share of common
stock, no par value per share, of the Surviving Corporation, and shall
constitute the only issued and outstanding capital stock of the
Surviving Corporation following the Merger.
(ii) Each share of the common stock of FractionAir, no par value
("FractionAir Common Stock") that is owned by FractionAir as treasury
stock and any shares of FractionAir Common Stock that are owned by
Teda shall be canceled and shall cease to exist, and no stock of Teda
or other consideration shall be delivered in exchange therefor.
(iii) Subject to the provisions of this Section 3.1(a), the
shares of FractionAir Common Stock, other than the shares canceled
pursuant to Section 3.1(a)(ii), issued and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and without
any action on the part of the holders thereof, be converted into the
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ARTICLE III Stock Issuance - continued
right to receive validly issued, fully paid and non-assessable shares
of Common Stock of Teda, par value $.001 per share ("Teda Common
Stock"), at an exchange ratio (the "Exchange Ratio") of 1.181718 share
of Teda Common Stock for each share of FractionAir Common Stock (the
"Merger Consideration"), such that former shareholders of FractionAir
shall hold 57,750,000 shares, or 96.25% of the outstanding common
stock of Teda immediately following the Merger. Concurrent with such
conversion, Xxxxxxxxxx & Xxxxx LLP shall be issued 450,000 shares of
Teda Common Stock equaling 0.75% of the outstanding common stock of
Teda immediately following the Merger.
(iv) In connection with the Merger, all options and warrants to
purchase shares of FractionAir Common Stock outstanding immediately
prior to the Effective Time shall be automatically converted without
any further action into an option to purchase 1.181718 share of Teda
Common Stock for each share of FractionAir Common Stock underlying the
option or warrant.
(v) In consideration of the Merger, FractionAir shall pay Teda a
fee of Two Hundred Fifty Thousand Dollars ($250,000.00) (the "Cash
Payment"). The Cash Payment will be held in escrow at Xxxxxxxxxx &
Xxxxx LLP (or any other escrow agent mutually agreed to by the
parties) and released at Closing.
(b) If, at any time during the period between the date of this
Agreement and the Effective Time, FractionAir changes the number of shares
of FractionAir Common Stock issued and outstanding or Teda changes the
number of shares of Teda Common Stock issued and outstanding, in each case
as a result of a stock split, reverse stock split, stock dividend,
recapitalization, redenomination of share capital or other similar
transaction with an effective date or record date, as applicable, prior to
the Effective Time, the Exchange Ratio and any other items dependent
thereon shall be appropriately adjusted.
Section 3.2 Shareholders' Rights at the Effective Time. On and after the
Effective Time, the certificates that immediately prior to the Effective Time
represented shares of FractionAir Common Stock (the "Certificates"), shall cease
to represent any rights with respect to FractionAir Common Stock and shall only
represent the right to receive the Merger Consideration. As of the Effective
Time, the holders of FractionAir Common Stock as of the Effective Time who are
entitled to receive shares of Teda Common Stock as Merger Consideration shall be
deemed to be record owners of such shares of Teda Common Stock as of the
Effective Time and shall thereupon be entitled to exercise any rights as a
holder of Teda Common Stock, including the right to vote such Teda Common Stock,
whether or not the Certificates are surrendered and exchanged pursuant to this
Agreement.
Section 3.3 Surrender and Exchange of Share Certificates.
(a) Promptly after the Closing Date, Teda shall make available to the
transfer agent of Teda (the "Paying Agent"), certificates evidencing such
number of shares of Teda Common Stock as will enable the Paying Agent to
deliver the Teda Common Stock as Merger Consideration pursuant to Section
3.1(a). The number of shares of Teda Common Stock that each FractionAir
shareholder will be entitled to receive will be determined by multiplying
the number of shares of FractionAir Common Stock held by such shareholder
by the Exchange Ratio. Notwithstanding any other provision of this
Agreement, no fractional shares of Teda Common Stock will be issued in
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ARTICLE III Stock Issuance - continued
connection with the Merger. Any FractionAir shareholder who is entitled to
receive a fractional share shall receive a whole share.
(b) At or after the Closing, each holder of a Certificate shall
surrender and deliver such Certificate to the Paying Agent together with a
duly completed and executed transmittal letter. Upon such surrender and
delivery, the holder shall receive the Merger Consideration. Until so
surrendered and exchanged, each Certificate formerly representing an
outstanding share of FractionAir Common Stock shall, after the Effective
Time, be deemed for all purposes to evidence only the right to receive the
Merger Consideration as provided in Section 3.1(a)(iii).
(c) At the Effective Time, the stock transfer books of FractionAir
shall be closed and no transfer of shares of FractionAir Common Stock shall
be recorded thereafter, other than transfers of shares of FractionAir
Common Stock that have occurred prior to the Effective Time. In the event
that, after the Effective Time, Certificates are presented for transfer to
FractionAir, Merger Subsidiary or Teda, they shall be delivered to the
Paying Agent and exchanged for the Merger Consideration as provided for in
this Section 3.3.
(d) Any Merger Consideration that remains undistributed to the
shareholders of FractionAir as of the Effective Time after four months have
elapsed following the Effective Time shall be delivered to Teda by the
Paying Agent, upon demand, and any former shareholders of FractionAir who
have not previously complied with this Section 3.3 shall thereafter look
only to Teda for payment of their claim for the Merger Consideration or
dividends or distributions with respect to Teda Common Stock.
(e) Neither the Paying Agent, nor any of FractionAir, Merger
Subsidiary or Teda shall be liable to any holder of shares of FractionAir
Common Stock with respect to any Merger Consideration (or dividends or
distributions with respect to Teda Common Stock) delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
Law.
(f) In the event any Certificates shall have been lost, stolen or
destroyed, the Paying Agent shall deliver the Merger Consideration and any
dividends or other distributions with respect to Teda Common Stock to which
such holder is entitled in exchange for such lost, stolen or destroyed
Certificates, upon the making of an affidavit of that fact by the record
holder thereof and the delivery of such bond as the Paying Agent may
reasonably require.
(g) No transfer taxes shall be payable by any shareholder of
FractionAir in respect of the issuance of the Teda Common Stock under this
Section 3.3, except that if any Teda Common Stock is to be issued in a name
other than that in which the Certificate surrendered has been registered,
it shall be a condition of such issuance that the Person requesting such
issuance shall pay to Teda any transfer taxes payable by reason thereof, or
of any prior transfer of such surrendered Certificate, or establish to the
satisfaction of Teda that such taxes have been paid or are not payable.
Section 3.4 No Further Rights. From and after the Effective Time, holders
of Certificates theretofore evidencing shares of FractionAir Common Stock or
FractionAir Preferred Stock shall cease to have any rights as shareholders of
FractionAir, except as provided herein or by Law.
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ARTICLE III Stock Issuance - continued
Section 3.5 Resale Restrictions.
(a) The shareholders of FractionAir who received shares of Teda Common
Stock as Merger Consideration may not offer or sell any shares of Teda
Common Stock unless such offer or sale is made (i) pursuant to an effective
registration of such Teda Common Stock under the Securities Act, or (ii)
pursuant to an available exemption from the registration requirements of
the Securities Act. Teda shall refuse to register the transfer of any Teda
Common Stock not made in accordance with this Section 3.5 with the transfer
agent, and for such purpose may place stop order instructions with its
transfer agent with respect to the Teda Common Stock issued as Merger
Consideration. A proposed transfer shall be deemed to comply with this
Section 3.5 if the applicable shareholder delivers to Teda a legal opinion
in form and substance satisfactory to Teda from counsel reasonably
satisfactory to Teda to the effect that such transfer complies with this
Section 3.5.
(b) During any time that a shareholder of FractionAir is not entitled
to sell the shares of Teda Common Stock received as Merger Consideration
such shareholder may not (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer
to dispose of, directly or indirectly, any shares of Teda Common Stock or
any securities convertible into or exercisable or exchangeable for Teda
Common Stock, or (ii) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated with the
ownership of any Teda Common Stock (regardless of whether any of the
transactions described in clause (i) or (ii) is to be settled by the
delivery of Teda Common Stock or such other securities, in cash or
otherwise).
(c) Each certificate representing shares of Teda Common Stock issued
as Merger Consideration will bear the following legend or one substantially
similar thereto:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
RESTRICTIONS ON THE USE OF SUCH SECURITIES IN HEDGING TRANSACTIONS
PURSUANT TO THE TERMS OF A MERGER AGREEMENT PURSUANT TO THE TERMS
UNDER WHICH THEY WERE ISSUED.
ARTICLE IV Representations and Warranties of FractionAir
FractionAir represents and warrants to Teda and Merger Subsidiary that,
except as disclosed in the FractionAir Disclosure Schedule which has been
delivered to Teda prior to the execution of this Agreement (the "FractionAir
Disclosure Schedule"):
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ARTICLE IV Representations and Warranties of FractionAir - continued
Section 4.1 Organization and Qualification. FractionAir is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware. FractionAir has the requisite corporate power and authority
to carry on its business as it is now being conducted and is duly qualified or
licensed to do business, and, if applicable, is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification or licensing necessary,
except where the failure to be so organized, qualified, licensed or in good
standing, or to have such power and authority, when taken together with all
other such failures would not have an FractionAir Material Adverse Effect.
FractionAir has heretofore made available to Teda and Merger Subsidiary a
complete and correct copy of the certificate of incorporation, by-laws or other
governing documents, each as amended to the date hereof, of FractionAir.
Section 4.2 Capitalization.
(a) The authorized capital stock of FractionAir consists of
100,000,000 shares of FractionAir Common Stock of which 48,869,539 are
issued and outstanding, all of which will be validly issued, fully paid and
non-assessable.
(b) Except as set forth on Schedule 4.2(b) and options granted to
certain employees of FractionAir, there are no preemptive or other
outstanding rights, options, warrants, conversion rights (including
pursuant to convertible securities), stock appreciation rights, redemption
rights, repurchase rights, agreements, arrangements, calls, commitments or
rights of any kind relating to the issued or unissued capital stock of
FractionAir or obligating FractionAir to issue or sell any shares of
capital stock of, or other equity interests in, FractionAir. As of the date
of this Agreement, there are no outstanding contractual obligations of
FractionAir to repurchase, redeem or otherwise acquire any shares of
capital stock of FractionAir or to provide material funds to, or make any
material investment (in the form of a loan, capital contribution or
otherwise) in, any Person.
Section 4.3 Authority Relative to this Agreement and the Transactions.
FractionAir has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the Merger.
The execution and delivery by FractionAir of this Agreement, and the
consummation by FractionAir of the Transactions to which it is a party, have
been duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of FractionAir are necessary to authorize the
execution and delivery of this Agreement or to consummate the Transactions to
which it is a party other than, with respect to the Merger, the adoption of this
Agreement by the affirmative vote of the holders of a majority of the
outstanding shares of FractionAir Common Stock and the filing and recordation of
appropriate merger documents as required by Nevada Law. This Agreement has been
duly and validly executed and delivered by FractionAir and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of FractionAir, enforceable against
FractionAir in accordance with its terms.
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ARTICLE IV Representations and Warranties of FractionAir - continued
Section 4.4 No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Agreement by FractionAir does
not, and the performance of this Agreement and consummation of the
Transactions by FractionAir will not: (i) conflict with or violate the
articles of incorporation or by-laws of FractionAir, (ii) assuming the
consents, approvals, authorizations and waivers specified in Section 4.4(b)
have been received, and any condition precedent to such consent, approval,
authorization, or waiver has been satisfied, conflict with or violate any
Law applicable to FractionAir or by which any property or asset of
FractionAir is bound or affected, or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any right of
termination, amendment, acceleration, or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of
FractionAir pursuant to, any Contract to which FractionAir is a party or by
which FractionAir or any property or asset of FractionAir is bound or
affected, except in the case of clauses (ii) and (iii) for any such
conflicts, violations, breaches, defaults or other occurrences of the type
referred to above which would not have an FractionAir Material Adverse
Effect or would not prevent or materially delay the consummation of the
Merger.
(b) The execution and delivery of this Agreement by FractionAir does
not, and the performance of this Agreement by FractionAir will not, require
any consent, approval, authorization, waiver or permit of, or filing with
or notification to, any governmental or regulatory authority, domestic,
foreign or supranational (a "Governmental Entity"), except for applicable
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Securities Act of 1933, as amended (the "Securities
Act"), state securities or "blue sky" laws ("Blue Sky Laws"), filing and
recordation of the Articles of Merger as required by Nevada Law, and
applications for listing and other filings required by the rules of the
Nasdaq Bulletin Board or American Stock Exchange, except where failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not have an FractionAir Material Adverse
Effect or would not prevent or materially delay the consummation of the
Merger.
Section 4.5 Status of FractionAir shareholders. Each shareholder of
FractionAir has been advised that the shares of Teda Common Stock that will be
received by such shareholder in the Merger have not been registered under the
Securities Act, will be "restricted securities" as such term is defined in Rule
144(a) promulgated under the Securities Act, and may not be sold by such
shareholder unless such shares are registered for resale or an exemption from
such registration is available.
Section 4.6 Brokers. No agent, broker, finder, investment banker or other
firm or Person is or will be entitled to any broker's or finder's fee or other
similar commission or fee in connection with the Transactions based upon
arrangements made by or on behalf of FractionAir.
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ARTICLE V Representations and Warranties of Teda
Teda represents and warrants to FractionAir that, except as disclosed in
the Teda Disclosure Schedule which has been delivered to FractionAir prior to
the execution of this Agreement (the "Teda Disclosure Schedule"):
Section 5.1 Organization and Qualification. Teda is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, and Merger Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada. Teda has the
requisite corporate power and authority to carry on its business as it is now
being conducted and is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary. Teda has heretofore made available to FractionAir a complete and
correct copy of the organizational documents, each as amended to the date
hereof, of Teda.
Section 5.2 Capitalization
(a) The authorized capital stock of Teda consists of 250,000,000
shares of Teda Common Stock and 5,000,000 shares of preferred stock, par
value $.001 per share ("Teda Preferred Stock"). As of the Closing Date and
immediately prior to the Effective Time, there will be no more than
1,800,000 shares of Teda Common Stock issued and outstanding, all of which
have been validly issued, fully paid and non-assessable. There are no
shares of Teda Preferred Stock issued or outstanding. The shareholders
holding the Teda Common Stock and the number of shares of Teda Common Stock
held by each such shareholder is set forth on Schedule 5.2 attached hereto.
All of the issued and outstanding shares of Teda Common Stock were issued
in compliance with all applicable Laws including, without limitation, the
Securities Act, the Exchange Act and applicable Blue Sky Laws. There are no
preemptive or other outstanding rights, options, warrants, conversion
rights (including pursuant to convertible securities), stock appreciation
rights, redemption rights, repurchase rights, agreements, arrangements,
calls, commitments or rights of any kind relating to the issued or unissued
capital stock of Teda or obligating Teda to issue or sell any shares of
capital stock of, or other equity interests in, Teda. As of the date of
this Agreement, there are no outstanding contractual obligations of Teda to
repurchase, redeem or otherwise acquire any shares of capital stock of Teda
or to provide material funds to, or make any material investment (in the
form of a loan, capital contribution or otherwise) in, any Person.
(b) The authorized capital stock of Merger Subsidiary consists of 100
shares of common stock, par value $.001 per share. There are 100 shares of
common stock of Merger Subsidiary issued and outstanding, all of which were
validly issued, fully paid and non-assessable. All of the outstanding
shares of Merger Subsidiary's common stock are held beneficially and of
record by Teda, free and clear of all liens or encumbrances of any kind.
There are no preemptive or other outstanding rights, options, warrants,
conversion rights (including pursuant to convertible securities), stock
appreciation rights, redemption rights, repurchase rights, agreements,
arrangements, calls, commitments or rights of any kind relating to the
issued or unissued capital stock of Merger Subsidiary or obligating Merger
Subsidiary to issue or sell any shares of capital stock of, or other equity
interests in, Merger Subsidiary.
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ARTICLE V Representations and Warranties of Teda - continued
Section 5.3 Authority Relative to this Agreement. Each of Teda and the
Merger Subsidiary has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
Transactions to which each of them is a party. The execution and delivery of
this Agreement by Teda and Merger Subsidiary, and the consummation by Teda and
Merger Subsidiary of the Transactions have been duly and validly authorized by
all necessary corporate action and no other corporate proceedings on the part of
Teda or Merger Subsidiary are necessary to authorize the execution and delivery
of this Agreement or to consummate the Transactions other than, with respect to
the Merger, the filing and recordation of appropriate merger documents as
required by Nevada Law. This Agreement has been duly and validly executed and
delivered by Teda and Merger Subsidiary and, assuming the due authorization,
execution and delivery hereof by FractionAir, constitutes a legal, valid and
binding obligation of Teda and Merger Subsidiary, enforceable against Teda and
Merger Subsidiary in accordance with its terms.
Section 5.4 No Conflicts, Required Filings and Consents
(a) The execution and delivery of this Agreement by Teda and the
Merger Subsidiary does not and will not, and the performance of this
Agreement and the consummation of the Transactions by Teda and Merger
Subsidiary will not: (i) conflict with or violate the articles of
incorporation or by-laws of Teda or the Merger Subsidiary (ii) assuming the
consents, approvals, authorizations and waivers specified in Section 5.4(b)
have been received, conflict with or violate any Laws applicable to Teda or
by which any property or asset of Teda is bound or affected, or (iii)
result in any breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to
others any right of termination, amendment, acceleration, or cancellation
of, or result in the creation of a lien or other encumbrance on any
property or asset of Teda pursuant to, any Contract to which Teda is a
party or by which Teda or any property or asset of Teda is bound or
affected.
(b) The execution and delivery of this Agreement by Teda or the Merger
Subsidiary does not and will not, and the performance of this Agreement and
the consummation of the Transactions by Teda and the Merger Subsidiary will
not, require any consent, approval, authorization, waiver or permit of, or
filing with or notification to, any Governmental Entity, except for
applicable requirements of the Exchange Act, the Securities Act, Blue Sky
Laws, filing and recordation of the Articles of Merger as required by
Nevada Law and applications for listing and other filings required by the
rules of the Nasdaq Bulletin Board.
Section 5.5 SEC Reports. The Registration Statement of Teda on Form 10-SB
filed with the SEC (the "Form 10") has become effective and has not been
withdrawn or suspended. The SEC has not issued a stop order with respect to the
Form 10 and, to the knowledge of Teda, no proceeding for such purpose is pending
or contemplated by the SEC. Teda has filed with the SEC all forms, reports,
schedules, registration statements and preliminary or definitive proxy or
information statements required to be filed by it with the SEC since the Form 10
became effective (such reports, together with the Form 10, the "Teda SEC
Reports"). As of their respective dates, the Teda SEC Reports complied as to
form in all material respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Teda SEC Reports. As of their respective dates,
the Teda SEC Reports did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
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ARTICLE V Representations and Warranties of Teda - continued
the statements therein, in light of the circumstances under which they were
made, not misleading. Teda has filed all material contracts and agreements and
other documents or instruments required to be filed as exhibits to the Teda SEC
Reports.
Section 5.6 Scope of Operations; Compliance with Laws. The Teda SEC Reports
describe fairly and accurately all operations and material transactions engaged
in or conducted by Teda since its inception. Except as described in the Teda SEC
Reports, Teda does not own, lease or have the right to use, and has never owned,
leased or had the right to use, any real property or interest therein. Teda does
not have and has never had any ownership, equity or other interest in any other
Person. Teda has not guaranteed any obligation of any other Person.
Section 5.7 Liabilities and Contracts. Teda does not have outstanding any
liability or obligation of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether due or to become due) except for debt owed
to the Persons set forth on Schedule 5.7 which will be satisfied or otherwise
extinguished pursuant to Section 6.9. Teda is not and has not been a party to,
nor are or were Teda's assets bound or affected by, any Contract except for
Contracts under which Teda has no further rights or obligations because the
Contract has been fully performed or validly and irrevocably terminated.
Section 5.8 Litigation. Except as set forth on Schedule 5.8, there is no
suit, action or proceeding pending, threatened against or affecting Teda, nor is
there any judgment, decree, injunction or order of any Governmental Entity or
arbitrator outstanding against Teda.
Section 5.9 Brokers. No agent, broker, finder, investment banker or other
firm or Person is or will be entitled to any broker's or finder's fee or other
similar commission or fee in connection with the Transactions based upon
arrangements made by or on behalf of Teda.
Section 5.10 Taxes. True and correct copies of Teda's federal and state
income tax returns for the years ended December 31, 2003 and December 31, 2004
have been delivered to the Company. All tax returns (including information
returns) required by any jurisdiction to have been filed as of the date of this
Agreement by or with respect to Teda have been timely filed, except for returns
with respect to which extensions have been granted, and each such return is
true, correct and complete in all material respects. To Teda's Knowledge,
neither the Internal Revenue Service nor any state, local or other taxing
authority has proposed any additional Taxes, interest or penalties with respect
to Teda or any of its operations or business; there are no pending or, to Teda's
Knowledge, threatened tax claims or assessments; and there are no pending or, to
Teda's Knowledge, threatened tax examinations by any taxing authorities. Teda
has not given any waivers of rights (which are currently in effect) under
applicable statutes of limitations with respect to the income tax returns for
any fiscal year.
ARTICLE VI Covenants
Section 6.1 Conduct of Business by FractionAir Pending the Merger. From and
after the date hereof until the Closing Date, except as contemplated by this
Agreement or unless Teda shall otherwise agree in writing, FractionAir covenants
and agrees that it shall: (a) carry on its business in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted or
presently contemplated to be conducted, (b) use all reasonable efforts to
preserve intact its present business organization, keep available the services
of its employees and consultants and preserve its relationships and goodwill
11
ARTICLE VI Covenants - continued
with customers, suppliers, licensors, licensees, distributors and others having
business dealings with it, and (c) use commercially reasonable efforts to
protect its intellectual property rights to the end that its goodwill and
on-going businesses shall not be impaired in any material respect as of the
Closing Date. Without limiting the generality of the foregoing, except as
expressly contemplated by this Agreement or unless Teda shall otherwise agree in
writing, prior to the Closing, FractionAir shall not:
(i) declare, set aside, or pay any dividends on, or make any other
distributions in respect of, any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock; purchase, redeem or otherwise
acquire any shares of capital stock of FractionAir or any rights, warrants,
or options to acquire any such shares;
(ii) issue, deliver, sell, pledge, dispose of or otherwise encumber
any shares of FractionAir's capital stock, any other voting securities of
FractionAir or any securities convertible into, or any rights, warrants or
options to acquire, any such shares or voting securities (other than the
issuance of options to employees pursuant to FractionAir's stock option
plan or the issuance of FractionAir Common Stock upon the exercise of such
options) or amend the terms of any such securities, rights, warrants or
options or take any action to accelerate the vesting thereof;
(iii) amend the articles of incorporation or by-laws of FractionAir;
(iv) acquire or agree to acquire by merging or consolidating with, or
by purchasing a substantial portion of the assets of, or by any other
manner, any business or any corporation, partnership, joint venture,
association or other business organization or division thereof, or any
assets that are material, individually or in the aggregate, to FractionAir,
except, in any such case, in the ordinary course of business;
(v) adopt a plan of complete or partial liquidation;
(vi) take any action or omit to take any action that would cause any
of its representations and warranties herein to become untrue in any
material respect; or
(vii) authorize any of, or commit or agree to take any of, the
foregoing actions.
Section 6.2 Covenant of Teda. From and after the date hereof until the
Closing Date, except as contemplated by this Agreement or unless FractionAir
shall otherwise agree in writing, Teda covenants and agrees that it shall not,
and shall cause the Merger Subsidiary not to:
(a) declare, set aside, or pay any dividends on, or make any other
distributions in respect of, any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock; purchase, redeem or otherwise
acquire any shares of its capital stock or any rights, warrants, or options
to acquire any such shares (except that Teda may distribute all shares of
Teda Travel Group equity securities and all other assets prior to closing);
(b) enter into any Contract or amend, modify or waive any rights under
any Contract to which it is a party;
12
ARTICLE VI Covenants - continued
(c) issue, deliver, sell, pledge, dispose of or otherwise encumber any
shares of its capital stock or other securities, or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares or securities or amend the terms of its outstanding capital stock;
(d) amend its articles of incorporation or by-laws, except for an
amendment to change its name to "FractionAir Holdings, Inc.";
(e) acquire any assets;
(f) adopt a plan of complete or partial liquidation;
(g) incur or modify any indebtedness for borrowed money or guarantee
any such indebtedness of another Person; issue or sell any debt securities;
or guarantee any debt securities of another Person;
(h) make any loans, advances or capital contributions to, or
investments in, any other Person;
(i) take any action or omit to take any action that would cause any of
its representations and warranties herein to become untrue in any material
respect; or
(j) authorize any of, or commit or agree to take any of, the foregoing
actions.
Section 6.3 Shareholder Approval. FractionAir, Teda and the Merger
Subsidiary shall each take all actions necessary, in accordance with applicable
Law and its respective articles of incorporation and by-laws, to cause as
promptly as reasonably practicable after the date hereof the shareholders of
FractionAir and Teda (and Teda in its capacity as the sole shareholder of the
Merger Subsidiary) to approve the Transactions. FractionAir's, Teda's and the
Merger Subsidiary's board of directors shall recommend such approval and shall
take all lawful action to solicit and obtain such approval.
Section 6.4 Further Action; Consents; Filings. Upon the terms and subject
to the conditions hereof, each of the parties hereto shall use its reasonable
best efforts to take, or cause to be taken, all appropriate actions and do, or
cause to be done, all things necessary, proper or advisable under applicable Law
or otherwise to consummate and make effective as promptly as practicable the
Transactions and to cooperate with each other in connection with the foregoing.
Without limiting the generality of the foregoing, each of the parties agrees to
take all appropriate actions to obtain from Governmental Entities any
Governmental Authorizations required to be obtained or made by Teda, FractionAir
or the Merger Subsidiary in connection with the authorization, execution and
delivery of this Agreement and the consummation of the Transactions, and to make
all necessary filings, and thereafter make any other required submissions that
are required under the Exchange Act, the Securities Act, the Blue Sky Laws, or
any other applicable Law. The parties hereto shall cooperate with each other in
connection with the making of all such filings, including by providing copies of
all such documents to the nonfiling party and its advisors prior to filing and,
if requested, by accepting all reasonable additions, deletions or changes
suggested in connection therewith.
Section 6.5 Plan of Reorganization. The Merger is intended to constitute a
"plan of reorganization" under the provisions of Sections 368(a)(1)(A) and
368(a)(2)(E) of the Code. From and after the date of this Agreement and until
13
ARTICLE VI Covenants - continued
the Closing, each party hereto shall use its reasonable best efforts to cause
the Merger to qualify, and will not knowingly take any action, cause any action
to be taken, fail to take any action or cause any action to fail to be taken
which action or failure to act could prevent the Merger from qualifying as a
reorganization under the provisions of Section 368(a) of the Code. Following the
Closing, neither Surviving Corporation, Teda nor any of their Affiliates shall
knowingly take any action, cause any action to be taken, fail to take any action
or cause any action to fail to be taken, which action or failure to act could
cause the Merger to fail to qualify as a reorganization under Section 368(a) of
the Code.
Section 6.6 Access to Information. From the date hereof until the Closing
or the earlier termination of this Agreement in accordance with its terms, Teda
shall afford to FractionAir and its accountants, counsel and other
representatives full and reasonable access during normal business hours (and at
such other times as the parties may mutually agree) to its books, Contracts,
commitments, records and personnel and, during such period, shall furnish
promptly to FractionAir (i) a copy of each report, schedule and other document
filed or received by it pursuant to the requirements of the Exchange Act or the
Securities Act, and (ii) all other information concerning its business as
FractionAir may reasonably request. FractionAir shall conduct its review in a
manner reasonably calculated not to disrupt Teda's business and operations. No
investigation pursuant to this Section 6.6 and no knowledge obtained thereby or
otherwise shall limit any representation or warranty of Teda or impair any
rights of a FractionAir Indemnified Party as a result thereof.
Section 6.7 Public Announcements. On or before the Closing Date, neither
Teda nor FractionAir shall (nor shall they permit any of their respective
Affiliates to), without prior consultation with the other parties and such other
parties' review of and consent to any public announcement concerning the
Transactions, issue any press release or make any public announcement with
respect to Transactions during such period, and Teda and FractionAir shall, to
the extent practicable, allow the other parties reasonable time to review and
comment on such release or announcement in advance of its issuance and use
reasonable efforts in good faith to reflect the reasonable and good faith
comments of such other party; provided, however, no party shall be prevented
from making any disclosure required by Law at the time so required because of
any delay on the part of another party. The parties intend that the initial
announcement of the terms of the Transactions shall be made by a joint press
release of Teda and FractionAir.
Section 6.8 Notice of Breaches. FractionAir shall give prompt notice to
Teda and Teda shall give prompt notice to FractionAir, of (i) any representation
or warranty made by it contained in this Agreement which has become untrue or
inaccurate in any respect, or (ii) the failure by it to comply with or satisfy
any covenant, condition, or agreement to be complied with or satisfied by it
under this Agreement; provided, however, that such notification shall not excuse
or otherwise affect the representations, warranties, covenants or agreements of
the parties or the conditions to the obligations of the parties under this
Agreement.
Section 6.9 Confidentiality. Prior to the Closing, Teda will, and will
instruct all of its employees, representatives, agents, and affiliates to, treat
all Confidential Material confidentially, not disclose it except in accordance
herewith and not use it for his or their own benefit or the benefit of any
person other than Teda or FractionAir; provided, that (a) any disclosure of
Confidential Material may be made with the prior written consent of FractionAir
or, after the Merger, Teda; and (b) Confidential Material may be disclosed
14
ARTICLE VI Covenants - continued
without liability hereunder to the extent required by law or by the order or
decree of any court or other governmental authority; provided, however, that the
party legally compelled to disclose the Confidential Material provides
FractionAir with prompt notice of that fact so that FractionAir may attempt to
obtain a protective order or other appropriate remedy. For purposes of this
section, the term "Confidential Material" means all information, documents and
other materials relating to the business, customers, products, services,
prospects, plans or other matters of FractionAir or Teda; provided, however,
that the term "Confidential Material" will not include information that (i)
becomes generally available to the public other than as a result of a disclosure
by Teda (prior to the Closing) or any of its employees, representatives, agents,
relatives or affiliates, or (ii) was made available to Teda on a
non-confidential basis from a source other than FractionAir, or any of its
agents, provided, that such source is not bound by a confidentiality agreement
restricting such disclosure.
Section 6.10 Financial Statements. Teda's current Chief Executive Officer
("Current Teda CEO") or a reasonable designee of such person, shall cooperate
with Teda and provide Teda such assistance as Teda reasonably requests in
connection with the preparation of Teda's financial statements for all periods
ending on or prior to June 30, 2005.Without limiting the generality of the
foregoing, the Current Teda CEO shall make available to Teda and its accountants
or advisors all account and other financial information concerning Teda in the
possession of such person.
Section 6.11 Reincorporation. Immediately following the Closing, Teda shall
take all actions necessary to reincorporate as a corporation organized under the
laws of the State of Nevada, and to cause the Articles of Incorporation and
Bylaws of FractionAir to be the Articles of Incorporation and Bylaws of the
newly-organized Nevada corporation.
ARTICLE VII Conditions Precedent
Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Agreement and the Merger shall have been approved and adopted
by the holders of FractionAir Common Stock in the manner required by Law.
(b) The consummation of the Merger shall not be restrained, enjoined
or prohibited by any order, judgment, decree, injunction or ruling of a
court of competent jurisdiction.
Section 7.2 Conditions to Obligation of FractionAir to Effect the
Transactions. The obligation of FractionAir to effect the Merger shall be
subject to the fulfillment at or before the Effective Time of the following
additional conditions, unless waived by FractionAir:
(a) The representations and warranties of Teda contained in this
Agreement shall be true and correct in all respects on the date hereof and
as of the Closing Date as if made on the Closing Date.
(b) Teda and Merger Subsidiary shall have performed or complied with
all agreements and covenants required to be performed by each of them under
this Agreement on or before the Closing Date.
15
ARTICLE VII Conditions Precedent - continued
(c) FractionAir shall have received copies of resignations of each of
the directors and officers of Teda which have been accepted by Teda.
(d) FractionAir and its representatives shall have completed their due
diligence investigation of Teda and the results of such investigation shall
be satisfactory to FractionAir in its sole discretion.
(e) FractionAir shall have received a certificate of an authorized
officer of Teda and Merger Subsidiary, on behalf of Teda and Merger
Subsidiary, that the conditions set forth in paragraphs (a) through (e)
above have been satisfied.
Section 7.3 Conditions to Obligations of Teda and Merger Subsidiary to
Effect the Merger. The obligations of Teda and Merger Subsidiary to effect the
Merger shall be subject to the fulfillment at or before the Effective Time of
the following additional conditions, unless waived by Teda:
(a) The representations and warranties of FractionAir contained in
this Agreement shall be true and correct in all respects on the date hereof
and as of the Closing Date as if made on the Closing Date.
(b) FractionAir shall have performed or complied in all material
respects with all agreements and covenants required to be performed by it
under this Agreement on or before the Closing Date.
(c) FractionAir stockholders required to approve the Merger shall have
executed a written consent approving the Merger on or before the Closing
Date.
(d) Teda shall have received a certificate of an authorized officer of
FractionAir, on behalf of FractionAir, that the conditions in paragraphs
(a), (b) and (c) above have been satisfied.
ARTICLE VIII Survival
Section 8.1 Survival of Representations, Warranties and Covenants. The
parties hereto hereby agree that the representations, warranties, covenants and
agreements contained in this Agreement shall automatically expire upon the
Closing hereunder.
ARTICLE IX Termination, Amendment and Waiver
Section 9.1 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval by the shareholders of
FractionAir:
(a) by mutual written consent of Teda and FractionAir;
(b) by FractionAir, upon a material breach of this Agreement on the
part of Teda or Merger Subsidiary which has not been cured and which would
cause the conditions set forth in Section 7.2 not to be satisfied at
Closing;
(c) by Teda, upon a material breach of this Agreement on the part of
FractionAir which has not been cured and which would cause the conditions
set forth in Section 7.3 not to be satisfied at Closing;
16
ARTICLE IX Termination, Amendment and Waiver - continued
(d) by Teda or FractionAir if any court of competent jurisdiction
shall have issued, enacted, entered, promulgated or enforced any order,
judgment, decree, injunction or ruling which restrains, enjoins or
otherwise prohibits the Merger;
(e) by Teda or FractionAir if the Merger shall not have been
consummated on or before September 30, 2005; provided, that the right to
terminate this Agreement under this Section 9.1(e) shall not be available
to any party whose failure to perform any material covenant or obligation
under this Agreement has been the cause of or resulted in the failure of
the Merger to occur on or before such date; or
(f) by FractionAir if it is not satisfied, in its sole discretion,
with the results of its due diligence investigation.
Section 9.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 9.1, this Agreement shall forthwith terminate
and there shall be no liability hereunder on the part of any of FractionAir,
Teda or Merger Subsidiary; provided, this Section 9.2, Section 9.3 (Fees and
Expenses); and Section 10.5 (Governing Law) shall survive the termination and
remain in full force and effect and; provided, further, that each party shall
remain liable for any breaches of or inaccuracies in such party's covenants,
representations and warranties hereunder which breach or inaccuracy occurred
prior to the termination of this Agreement.
Section 9.3 Fees and Expenses. Whether or not the Merger is consummated,
all costs and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such expenses; provided, all
fees and expenses of Teda incurred in connection with the Transactions shall be
paid from sources other than Teda's assets and shall not be an obligation of the
Surviving Corporation.
Section 9.4 Amendment. This Agreement may be amended by the parties hereto
at any time before or after approval hereof by the shareholders of FractionAir,
Teda and the Merger Subsidiary, but, after such approval, no amendment shall be
made which under applicable Law would require approval of FractionAir's or
Teda's shareholders without the further approval of such shareholders, as the
case may be. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
Section 9.5 Waiver. At any time prior to the Closing, the parties hereto
may, to the extent permitted by applicable Law, (i) extend the time for the
performance of any of the obligations or other acts of any other party hereto,
(ii) waive any inaccuracies in the representations and warranties by any other
party contained herein or in any documents delivered by any other party pursuant
hereto and (iii) waive compliance with any of the agreements of any other party
or with any conditions to its own obligations contained herein. Any agreement on
the part of a party hereto to any such extension or waiver shall be valid only
if set forth in an instrument in writing signed on behalf of such party.
ARTICLE X General Provisions
Section 10.1 Notices. All notices or other communications under this
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by telecopy (with
confirmation of receipt), or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
17
ARTICLE X General Provisions - continued
If to FractionAir or, subsequent to the Closing, Teda:
FRACTIONAIR, INC.
00 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
President
Telecopy: (000) 000-0000
If, prior to the Closing, to Teda or Merger Subsidiary:
TEDA TRAVEL, INC.
Suite 2102 Chinachem Xxxxxxx Xxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attn:Xxxxxxx Xxx
Chief Executive Officer
Telecopy: (000) 000 00000
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section 10.1.
Section 10.2 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties further agree that each party shall
be entitled to an injunction or restraining order to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other right or remedy to which such party may be entitled under
this Agreement, at Law or in equity.
Section 10.3 Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
Section 10.4 Assignments; Parties in Interest. Neither this Agreement nor
any of the rights, interests or obligations hereunder may be assigned by any of
the parties hereto (whether by operation of Law or otherwise) without the prior
written consent of the other parties. Subject to the foregoing, this Agreement
shall be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any Person not a party hereto any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, including to confer third party
beneficiary rights except that the shareholders of FractionAir are intended
third-party beneficiaries of the representations, warranties and covenants of
Teda.
Section 10.5 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Nevada (without giving effect to the
provisions thereof relating to conflicts of Law).
Section 10.6 Headings; Disclosure. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement. Any disclosure by
18
ARTICLE X General Provisions - continued
FractionAir or Teda in any portion of its respective Disclosure Schedule shall
be deemed disclosure in each other portion of such Disclosure Schedule to which
such disclosure reasonably relates on its face.
Section 10.7 Certain Definitions and Rules of Construction.
(a) As used in this Agreement:
"Affiliate" as applied to any Person, shall mean any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person; for purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities, by contract or
otherwise.
"Contract" means any contract, agreement, note, bond, mortgage, indenture,
credit agreement, lease, license, permit, franchise or other instrument,
obligation or understanding, whether written or oral.
"Debt" means, with respect to any Person, all indebtedness of such Person
for borrowed money or the deferred purchase price of property or services
(excluding trade payables and other accrued current liabilities arising in the
ordinary course of business), obligations of such Person evidenced by bonds,
notes, indentures or similar instruments, obligations of such Person under
interest rate agreements, currency hedging agreements, commodity price
protection agreements or similar hedging instruments, capital lease obligations
of such Person, redeemable capital stock of such Person and any other
obligations of such Person classified as indebtedness under GAAP.
"FractionAir Material Adverse Effect" shall be any circumstance, event or
occurrence that would be reasonably likely to have a material adverse effect on
the business, assets, operations, financial condition, revenues, results of
operations of FractionAir taken as a whole.
"Laws" means any domestic (federal, state or local) or foreign law, rule,
regulation, order, judgment or decree.
"Person" shall include individuals, corporations, partnerships, limited
liability companies, trusts, other entities and groups (which term shall include
a "group" as such term is defined in Section 13(d)(3) of the Exchange Act).
"Tax" shall mean any federal, state, local, foreign or provincial income,
gross receipts, property, sales, service, use, license, lease, excise,
franchise, employment, payroll, withholding, employment, unemployment insurance,
workers' compensation, social security, alternative or added minimum, ad
valorem, value added, stamp, business license, occupation, premium,
environmental, windfall profit, customs, duties, estimated, transfer or excise
tax, or any other tax, custom, duty, premium, governmental fee or other
assessment or charge of any kind whatsoever, together with any interest, penalty
or addition to tax imposed by any Governmental Entity.
"Teda Material Adverse Effect" shall be any circumstance, event or
occurrence that would be reasonably likely to have a material adverse effect on
the business, assets, operations, financial condition, revenues, results of
operations of Teda taken as a whole. "Transactions" shall mean the transactions
19
ARTICLE X General Provisions - continued
contemplated by this Agreement including the satisfaction and extinguishment of
the obligations of Teda contemplated by Section 6.9.
(b) Other Rules of Construction.
(i) References in this Agreement to any gender shall include references to
all genders. Unless the context otherwise requires, references in the singular
include references in the plural and vice versa. References to a party to this
Agreement or to other agreements described herein means those Persons executing
such agreements.
(ii) The words "include", "including" or "includes" shall be deemed to be
followed by the phrase "without limitation" or the phrase "but not limited to"
in all places where such words appear in this Agreement. The word "or" shall be
deemed to be inclusive.
(iii) This Agreement is the joint drafting product of Teda and FractionAir,
and each provision has been subject to negotiation and agreement and shall not
be construed for or against either party as drafter thereof.
(iv) In each case in this Agreement where this Agreement or a Contract is
represented or warranted to be enforceable will be deemed to include as a
limitation to the extent that enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar Laws affecting the enforcement of creditors' rights generally and to
general equitable principles, whether applied in equity or at Law.
Section 10.8 Counterparts. This Agreement may be executed in two or more
counterparts which together shall constitute a single agreement.
Section 10.9 Severability. 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 terms and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economics or legal substance of
the Transactions are not affected in any manner materially adverse to any party.
Upon determination that any term or other provision hereof 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 the parties as
closely as possible to the fullest extent permitted by applicable Law in an
acceptable manner to the end that the Transactions are fulfilled to the extent
possible.
IN WITNESS WHEREOF, Teda, Merger Subsidiary, and FractionAir have
signed this Agreement or caused this Agreement to be signed by their respective
officers thereunto duly authorized all as of the date first written above.
TEDA TRAVEL, INC.
By:
-----------------------------------------------
Xxxxxxx Xxxx Xxxx Xxx, Chief Executive Officer
TEDA FRACTIONAIR MERGER SUB, INC.
By:
-----------------------------------------------
Xxxxxxx Xxxx Xxxx Xxx, Chief Executive Officer
FRACTIONAIR INC.
By:
-----------------------------------------------
Xxxxxxx Xxxxxxxxxx, Chief Executive Officer
20
