AGREEMENT AND PLAN OF MERGER
Exhibit
10.10
AGREEMENT
AND PLAN OF MERGER
by
and among
River
Hawk Aviation, Inc.,
Profile
Aviation Center, Inc.,
PAC
Acquisition Corp.,
Profile
Services, Inc., and
PS
Acquisition Corp.
Dated
as of May______, 2007
(1) AGREEMENT
AND PLAN OF MERGER
This
Agreement and Plan Of Merger (the
“Agreement”)
dated
as of May ___, 2007, 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 newly 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 newly formed under the laws of the State
of
Delaware and a wholly owned subsidiary of River Hawk (the “PS
Merger Sub”).
Profile Aviation, the PAC Merger Sub, Profile Services, the PS Merger Sub and
River Hawk are individually referred to herein as a “Party”
and
collectively as the “Parties.”
(2) PREAMBLE
WHEREAS,
River
Hawk proposes to acquire Profile Aviation and Profile Services pursuant to
a
merger transaction whereby, pursuant to the terms and subject to the conditions
of this Agreement, Profile Aviation and Profile Services shall become wholly
owned subsidiaries of River Hawk through the merger of PAC Merger Sub with
and
into Profile Aviation and through the merger of PS Merger Sub with and into
Profile Aviation (the “Merger”);
WHEREAS,
the
Board of Directors of River Hawk has (i) determined that a Merger with Profile
Aviation and Profile Services is advisable and in the best interests of River
Hawk and of River Hawk’s stockholders and presents an opportunity to achieve
long-term strategic and financial benefits, (ii) approved the Merger and this
Agreement and (iii) determined to recommend that River Hawk approve the Merger
and approve and adopt this Agreement;
WHEREAS,
the
Board of Directors of Profile Aviation and Profile Services has (i) determined
that a Merger with River Hawk is advisable and in the best interests of Profile
Aviation and Profile Services and their stockholders and presents an opportunity
to achieve long-term strategic and financial benefits, (ii) approved the Merger
and this Agreement and (iii) determined to recommend that the stockholders
of
Profile Aviation and Profile Services approve the Merger and approve and adopt
this Agreement;
WHEREAS,
in the
Merger, one hundred percent (100%) of all issued and outstanding shares of
common stock of Profile Aviation and Profile Services shall be purchased (the
“Share
Purchase”)
in
exchange for Four Million U.S. Dollars ($4,000,000) and one million five hundred
thousand (1,500,000) shares of common stock of River Hawk (the “Merger
Shares”),
which
Merger Shares, when issued pursuant to the Share Purchase, shall represent
approximately ten percent (10 %) of the voting power of River Hawk after the
Merger;
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants, representations and
warranties contained herein, the Parties, intending to be legally bound, hereby
agree as follows:
CERTAIN
DEFINITIONS
As
used
in this Agreement, the following terms shall have the meanings set forth below:
“Applicable
Law”
means
any domestic or foreign law, statute, regulation, rule, policy, guideline or
ordinance applicable to the businesses of the Parties, the Merger and/or the
Parties.
“Knowledge”
means,
in the case of River Hawk, Profile Aviation and Profile Services, a particular
fact or other matter of which its Chief Executive Officer or the Chief Financial
Officer is actually aware or which a prudent individual serving in such capacity
could be expected to discover or otherwise become aware of in the course of
conducting a reasonable
review or
investigation of
the
corporation and its business and affairs.
“Lien”
means,
with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest, claim, encumbrance, royalty interest, any other adverse
claim
of any kind in respect of such property or asset, or any other restrictions
or
limitations of any nature whatsoever.
“Material
Adverse Effect”
with
respect to any entity or group of entities means any event, change or effect
that has or would have a materially adverse effect on the financial condition,
business or results of operations of such entity or group of entities, taken
as
a whole.
“Person”
means
any individual, corporation, partnership, trust or unincorporated organization
or a government or any agency or political subdivision thereof.
“Surviving
Entity”
or
“Surviving
Entities”
shall
mean Profile Aviation and Profile Services as the surviving entity or surviving
entities in the Merger as provided in Section 1.04.
“Tax”
(and,
with correlative meaning, “Taxes”
and
“Taxable”)
means:
(i)
any
income, alternative or add-on minimum tax, gross receipts tax, sales tax, use
tax, ad valorem tax, transfer tax, franchise tax, profits tax, license tax,
withholding tax, payroll tax, employment tax, excise tax, severance tax, stamp
tax, occupation tax, property tax, environmental or windfall profit tax, custom,
duty or other tax, impost, levy, governmental fee or other like assessment
or
charge of any kind whatsoever together with any interest or any penalty,
addition to tax or additional amount imposed with respect thereto by any
governmental or Tax authority responsible for the imposition of any such tax
(domestic or foreign);
(ii)
any
liability for the payment of any amounts of the type described in clause (i)
above as a result of being a member of an affiliated, consolidated, combined
or
unitary group for any Taxable period; and
(iii)
any
liability for the payment of any amounts of the type described in clauses (i)
or
(ii) above as a result of any express or implied obligation to indemnify any
other person.
“Tax
Return”
means
any return, declaration, form, claim for refund or information return or
statement relating to Taxes, including any schedule or attachment thereto,
and
including any amendment thereof.
ARTICLE
I
THE
TRANSACTIONS
SECTION
1.01 THE
SHARE
PURCHASE
Consideration. On
the
Closing Date, (as hereinafter defined), the Share Purchase shall be consummated,
in which River Hawk shall purchase from Profile Aviation and Profile Services
one hundred percent (100%) of all issued and outstanding shares of common stock
of Profile Aviation and Profile Services, collectively referred to as the
“Profile
Shares,”
and
all
of the assets of Profile Aviation and Profile Services, who for purposes of
this
Section 1.01 shall collectively be referred to as “Profile”
as
if
they were the same entity, and for purposes of this Section 1.01 be deemed
to be
the same entity, in exchange for the following consideration, according to
the
following terms:
(a) One
Million Five Hundred Thousand U.S. Dollars ($1,500,000) upon the Closing
Date;
(b)
A
convertible promissory note for a total of Two Million Five Hundred Thousand
U.S. Dollars ($2,500,000), a form of which is attached hereto as Exhibit
A
(the
“Note”).
The
material terms of the Note are substantially as follows:
(i)
the Note will provide an annual interest rate of eight percent
(8%);
(ii)
the
Note is payable in three (3) installments, the first being One Million U.S.
Dollars ($1,000,000) payable one (1) year from the Effective Time (as
hereinafter defined), the second being One Million U.S. Dollars ($1,000,000)
payable two (2) years from the Effective Date, the third and final payment
being
Five Hundred Thousand U.S. Dollars ($500,000) payable three (3) years from
the
Effective Date;
(iii)
the
maturity date will be three (3) years from the Effective Date of this Agreement;
and
(iv)
the
Note shall convert, at the noteholder’s option, in whole or in part, at a
conversion price equal to the ten (10) day trailing average of the bid and
ask
price as quoted on the Over the Counter Bulletin Board, or substantially similar
quotation system or exchange, at the time of conversion.
(c) Profile
shall receive one million five hundred thousand (1,500,000) shares of River
Hawk
common stock shares otherwise known herein as the Merger Shares;
and
(d) 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.
SECTION
1.02 THE
MERGER
Upon
the
terms and subject to the conditions set forth in this Agreement and in
accordance with the Nevada Revised Statutes, Delaware Code and the General
Statutes of North Carolina, at the Effective Time, all the Profile Shares shall
be cancelled and converted into the right to receive the Merger Shares. In
connection therewith, the following terms shall apply:
(a) Exchange
Agent.
Legal
counsel for Profile Aviation and Profile Services, shall act as the exchange
agent (the “Exchange
Agent”)
for
the purpose of exchanging the Profile Shares for the Merger Shares. At or prior
to the Closing, River Hawk shall deliver to the Exchange Agent the Merger
Shares.
(b) Conversion
of Securities.
(i) Conversion
of Profile Aviation and Profile Services Securities.
At the
Effective Time, by virtue of the Merger and without any action on the part
of
River Hawk, Profile Aviation, the PAC Merger Sub, Profile Services and the
PS
Merger Sub, or the holders of any of their respective securities agree to the
following:
(1) Each
of
the issued and outstanding shares Profile Shares, immediately prior to the
Effective Time, shall be converted into and represent the right to receive,
and
shall be exchangeable for a pro rata allocation the Merger Shares.
(2) All
Profile Shares shall no longer be outstanding and shall automatically be
canceled, retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the Merger Shares to be issued pursuant
to
this Section 1.02 upon the surrender of such certificate in accordance with
Section 1.08, without interest. No fractional shares may be issued; but each
fractional share that would result from the Merger will be rounded to the
nearest number of whole shares.
(3) The
Merger Shares acquired in the Share Purchase shall represent, when issued,
the
equivalent of approximately ten percent (10%) of the common stock of River
Hawk
at the Effective Time.
(ii) Conversion
of Merger Sub Stock.
At the
Effective Time, by virtue of the Merger and without any action on the part
of
Profile Aviation, the PAC Merger Sub, Profile Services, the PS Merger Sub and
River Hawk, or the holders of any of their respective securities, each share
of
capital stock of the PAC Merger Sub and the PS Merger Sub outstanding,
immediately prior to the Effective Time, shall be converted into one (1) share
of the common stock of Profile Aviation and one (1) share of the common stock
of
Profile Services, each respectively a “Surviving
Entity,”
(collectively referred to as the “Surviving
Entities”)
and
the shares of common stock of the Surviving Entities so issued in such
conversion shall constitute the only outstanding shares of capital stock of
the
Surviving Entities and the Surviving Entities shall be wholly owned subsidiaries
of River Hawk.
(c) Exemption
from Registration.
The
Parties intend that the issuance of the Merger Shares to Profile Aviation and
Profile Services shall be exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) of the Securities Act and the rules
and
regulations promulgated thereunder.
SECTION
1.03 CLOSING
The
closing of the Share Purchase and the Merger (the “Closing”
otherwise known as the “Closing
Date”)
will
take place at the offices of The Xxxx Law Group, PLLC, within one (1) business
day following the satisfaction or waiver of the conditions precedent set forth
in Article V or at such other date as River Hawk, Profile Aviation and Profile
Services shall agree, but in any event no later than September 30, 2007 unless
extended by a written agreement of the Parties.
SECTION
1.04 MERGER;
EFFECTIVE TIME.
(a) PAC
Merger Sub. At
the
Effective Time and subject to and upon the terms and conditions of this
Agreement, the PAC Merger Sub shall, and River Hawk shall cause the PAC Merger
Sub, to merge with and into Profile Aviation in accordance with the provisions
of the Nevada Revised Statutes and the General Statutes of North Carolina,
the
separate corporate existence of the PAC Merger Sub shall cease and Profile
Aviation shall continue as the Surviving Entity. The Effective Time shall occur
upon the filing with the Nevada Secretary of State and the North Carolina
Secretary of State a Certificate of Merger, executed in accordance with the
applicable provisions of the Nevada Revised Statutes and the General Statutes
of
North Carolina (the “Effective
Time”).
The
date on which the Effective Time occurs is referred to as the “Effective
Date.”
Provided that this Agreement has not been terminated pursuant to Article VI,
the
Parties will cause the Certificate of Merger to be filed as soon as practicable
after the Closing.
(b) PS
Merger Sub. At
the
Effective Time and subject to and upon the terms and conditions of this
Agreement, the PS Merger Sub shall, and River Hawk shall cause the PS Merger
Sub, to merge with and into Profile Services in accordance with the provisions
of the Nevada Revised Statutes and Delaware Code, the separate corporate
existence of the PS Merger Sub shall cease and Profile Services shall continue
as the Surviving Entity. The Effective Time shall occur upon the filing with
the
Nevada Secretary of State and the Delaware Secretary of State a Certificate
of
Merger, executed in accordance with the applicable provisions of the Nevada
General Corporation Laws. Provided that this Agreement has not been terminated
pursuant to Article VI, the Parties will cause the Certificate of Merger to
be
filed as soon as practicable after the Closing.
SECTION
1.05 EFFECT
OF THE MERGER.
The
Merger shall have the effect set forth in Nevada Revised Statutes Title 7,
Chapter 78 and Chapter 92A, Delaware Code Title 8 Chapter 1 and the General
Statutes of North Carolina Chapter 55 Article 11. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all
the
properties, rights, privileges, powers and franchises of Profile Aviation,
the
PAC Merger Sub, Profile Services and the PS Merger Sub shall vest in each
company’s respective Surviving Entity, and all debts, liabilities and duties of
Profile Aviation, the PAC Merger Sub, Profile Services and the PS Merger Sub
shall become the debts, liabilities and duties of each company’s respective
Surviving Entity.
SECTION
1.06 CERTIFICATE
OF INCORPORATION AND BYLAWS; DIRECTORS AND
OFFICERS
Pursuant
to the Merger:
(a) The
Certificate of Incorporation and Bylaws of Profile Aviation and Profile
Services, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation and Bylaws of the Surviving Entities immediately
following the Merger.
(b) The
directors and officers of Profile Aviation and Profile Services immediately
prior to the Merger shall be the directors and officers of the Surviving
Entities following the Merger.
SECTION
1.07 RESTRICTIONS
ON RESALE
(a) The
Profile Shares issued pursuant to the Share Purchase and the Merger Shares
will
not be registered under the Securities Act, or the securities laws of any state,
and cannot be transferred, hypothecated, sold or otherwise disposed of until:
(i) a registration statement with respect to such securities is declared
effective under the Securities Act, or (ii) River Hawk receives an opinion
of
counsel for the Shareholders, reasonably satisfactory to counsel for River
Hawk,
stating that an exemption from the registration requirements of the Securities
Act is available.
The
certificates representing the Merger Shares which are being issued to the
shareholders shall contain a legend substantially as follows:
“THE
SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR RIVER HAWK SHOW, INC.
RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL
FOR RIVER HAWK SHOW, INC. THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT IS AVAILABLE.”
SECTION
1.08 EXCHANGE
OF CERTIFICATES.
(a) Surrender
of Shares.
Upon
the Effective Time, Profile Services and Profile Aviation shall be required
to
surrender all the Profile Shares to the Exchange Agent, and each shall be
entitled upon such surrender to receive, respectively, in exchange therefore
certificates representing the pro rata number of Merger Shares, which shall
be
disclosed on Schedule
1.08
prior to
the Closing and attached hereto, into which the Profile Shares theretofore
represented by the stock transfer forms so surrendered shall have been exchanged
pursuant to this Agreement. Until so surrendered, each outstanding certificate
which, prior to the Effective Time, represented Profile Shares shall be deemed
for all corporate purposes, subject to the further provisions of this Article
I,
to evidence the ownership of the number of whole Merger Shares for which such
Profile Shares have been so exchanged. No dividend payable to holders of the
Merger Shares of record as of any date subsequent to the Effective Time shall
be
paid to the owner of any certificate which, prior to the Effective Time,
represented Profile Shares, until such certificate or certificates representing
all the relevant Profile Shares, together with a stock transfer form, are
surrendered as provided in this Article I or pursuant to letters of transmittal
or other instructions with respect to lost certificates provided by the Exchange
Agent.
(b) Full
Satisfaction of Rights.
All
Merger Shares for which the Profile Shares shall have been exchanged pursuant
to
this Article I shall be deemed to have been issued in full satisfaction of
all
rights pertaining to the Profile Shares.
(c) Exchange
of Certificates.
All
certificates representing Profile Shares converted into the right to receive
Merger Shares pursuant to this Article I shall be furnished to River Hawk
subsequent to delivery thereof to the Exchange Agent pursuant to this
Agreement.
(d) Closing
of Transfer Books.
On the
Effective Date, the stock transfer book of Profile Aviation and Profile Services
shall be deemed to be closed and no transfer of Profile Shares shall thereafter
be recorded thereon.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF RIVER HAWK
River
Hawk and where applicable, the PAC Merger Sub and the PS Merger Sub hereby
jointly and severally represent and warrant to Profile Aviation and Profile
Services, as of the date of this Agreement, as of the Closing Date and as of
the
Effective Time, as follows:
SECTION
2.01 ORGANIZATION,
STANDING AND POWER
River
Hawk is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Nevada, and has corporate power and authority
to
(i) conduct its business as presently conducted by it, (ii) to enter into and
perform this Agreement, and (iii) to carry out the transactions contemplated
by
this Agreement. The PAC Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of North Carolina,
and
has corporate power and authority to enter into and perform this Agreement
and
to carry out the transactions contemplated by this Agreement. In addition,
the
PS Merger Sub is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has corporate power and
authority to enter into and perform this Agreement and to carry out the
transactions contemplated by this Agreement.
SECTION
2.02 RELEVANT
SUBSIDIARIES
(a) PAC
Merger Sub. River
Hawk owns all of the outstanding capital stock of the PAC Merger Sub, a newly
formed North Carolina corporation and prior to the date hereof and through
the
Effective Date, the PAC Merger Sub shall not conduct any operating business,
become a party to any agreements, or incur any liabilities or obligations.
(b) PS
Merger Sub. River
Hawk owns all of the outstanding capital stock of the PS Merger Sub, a newly
formed Delaware corporation and prior to the date hereof and through the
Effective Date, the PS Merger Sub shall not conduct any operating business,
become a party to any agreements, or incur any liabilities or obligations.
SECTION
2.03 CAPITALIZATION
(a) There
are
two hundred and seventy-five million (275,000,000) shares of capital stock
of
River Hawk authorized, consisting of twenty-five million (25,000,000) shares
of
common stock, $0.001 par value per share (the “River
Hawk Common Shares”)
and
two hundred and fifty million (250,000,000) shares of preferred stock, $0.001
per share (“River
Hawk Preferred Shares”).
As of
the date of this Agreement, there are one million eight hundred seventy-two
hundred and three (1,870,203) River Hawk Common Shares issued and outstanding.
It is acknowledged, that following the Closing Date, there will be approximately
fifteen million (15,000,000) shares of common stock issued and outstanding.
(b) It
is
acknowledged that as of the Closing Date, the individuals named in, which shall
be disclosed on Schedule
2.03
and
attached hereto prior to the Closing, collectively, will own of record and
beneficially up to approximately thirteen million one hundred and forty-eight
six hundred and twenty (13,148,620) of the issued and outstanding River Hawk
Common Shares, constituting 87.6% of such shares. No River Hawk Common Shares
or
River Hawk Preferred Shares have been reserved for issuance to any Person,
and
there are no other outstanding rights, warrants, options or agreements for
the
purchase of River Hawk Common or Preferred Shares except as provided in this
Agreement.
(c) All
outstanding River Hawk Common Shares are validly issued, fully paid,
non-assessable, not subject to pre-emptive rights and have been issued in
compliance with all state and federal securities laws or other Applicable Law.
The Merger Shares issuable to Profile Aviation and Profile Services pursuant
to
the Merger and the Share Purchase will, when issued pursuant to this Agreement,
be duly and validly authorized and issued, fully paid and
non-assessable.
SECTION
2.04 AUTHORITY
FOR AGREEMENT
The
execution, delivery, and performance of this Agreement by each of River Hawk,
the PAC Merger Sub and the PS Merger Sub has been duly authorized by all
necessary corporate and shareholder action, and this Agreement, upon its
execution by the Parties, will constitute the valid and binding obligation
of
each of River Hawk, the PAC Merger Sub and the PS Merger Sub, enforceable
against each of them in accordance with and subject to its terms, except as
enforceability may be affected by bankruptcy, insolvency or other laws of
general application affecting the enforcement of creditors' rights. The
execution and consummation of the transactions contemplated by this Agreement
and compliance with its provisions by River Hawk, the PAC Merger Sub and the
PS
Merger Sub will not violate any provision of Applicable Law and will not
conflict with or result in any breach of any of the terms, conditions, or
provisions of, or constitute a default under, River Hawk's Articles of
Incorporation, the PAC Merger Sub’s Certificate of Incorporation, the PS Merger
Sub’s Certificate of Incorporation or any of their respective Bylaws, in each
case as amended, or, in any material respect, any indenture, lease, loan
agreement or other agreement or instrument to which River Hawk is a party or
by
which it or any of its properties is bound, or any decree, judgment, order,
statute, rule or regulation applicable to River Hawk, the PAC Merger Sub or
the
PS Merger Sub.
SECTION
2.05 FINANCIAL
CONDITION
The
Annual Report on Form 10-K filed by River Hawk for the year ended December
31,
2006 and the Quarterly Reports on Form 10-QSB filed by River Hawk for the period
ended September 30, 2006, June 30, 2006 and March 31, 2006 (the “SEC
Filings”)
are
true, correct and complete in all material respects, are not misleading and
do
not omit to state any material fact which is necessary to make the statements
contained in such public filings not misleading in any material respect. The
financial statements included in the SEC Filings (the “Financial
Statements”)
were
prepared in accordance with generally accepted accounting principles and fairly
reflect the financial condition of River Hawk as of the dates stated and the
results of its operations for the periods presented.
SECTION
2.06 ABSENCE
OF CERTAIN CHANGES OR EVENTS
Since
December 31, 2006, except as reported in
River
Hawks 10-KSB for the period ended December 31, 2007 and any subsequent Quarterly
Reports filed by River Hawk
with the
Securities and Exchange Commission (“SEC”)
on
Form
10-QSB for the period ending on that date, and except as contemplated by this
Agreement:
(a) there
has
not been any Material Adverse Change in the business, operations, properties,
assets, or condition of River Hawk;
(b) River
Hawk has not (i) amended its Articles of Incorporation, except to change its
name from Viva International, Inc. to River Hawk Aviation, Inc. and to reduce
its authorized common stock from one billion (1,000,000,000) to twenty-five
million (25,000,000) shares; (ii) declared or made, or agreed to declare or
make, any payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to purchase
or
redeem, any outstanding capital stock; (iii) made any material change in its
method of management, operation, or accounting; (iv) entered into any material
transaction, not otherwise disclosed on Schedule
2.06
and
attached hereto prior to the Closing; or (v) made any accrual or arrangement
for
payment of bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee;
(c) River
Hawk has not (i) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent),
except as otherwise disclosed on Schedule
2.06
to be
attached hereto prior to the Closing and except liabilities incurred in the
ordinary course of business; (ii) paid any material obligation or liability
(absolute or contingent) other than current liabilities reflected in or shown
on
the most recent River Hawk balance sheet, and current liabilities incurred
since
that date in the ordinary course of business; (iii) sold or transferred, or
agreed to sell or transfer, any material assets, properties, or rights, or
canceled, or agreed to cancel, any material debts or claims; or (iv) made or
permitted any material amendment or termination of any contract, agreement,
or
license to which it is a party.
SECTION
2.07 GOVERNMENTAL
AND THIRD PARTY CONSENTS
No
consent, waiver, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or
other federal, state, county, local or other foreign governmental authority,
instrumentality, agency or commission or any third party, including a party
to
any agreement with River Hawk, the PAC Merger Sub or the PS Merger Sub, is
required by or with respect to River Hawk, the Operating Subsidiaries, the
PAC
Merger Sub or the PS Merger Sub in connection with the execution and delivery
of
this Agreement or the consummation of the transactions contemplated hereby,
except for such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under (i) applicable
securities laws, or (ii) the Nevada General Corporation Laws, Delaware
General Corporation Laws, or North Carolina Business Corporation
Act.
SECTION
2.08 LITIGATION
There
is
no action, suit, investigation, audit or proceeding pending against, or to
the
Knowledge of River Hawk, threatened against or affecting, River Hawk, the PAC
Merger Sub or the PS Merger Sub or any of their respective assets or properties
before any court or arbitrator or any governmental body, agency or
official.
SECTION
2.09 INTERESTED
PARTY TRANSACTIONS
Except
as
otherwise disclosed on Schedule
2.09,
which
shall be attached hereto prior to the Closing, River Hawk is not indebted to
any
officer or director of River Hawk, and no such person is indebted to River
Hawk.
SECTION
2.10 COMPLIANCE
WITH APPLICABLE LAWS
To
the
Knowledge of River Hawk, the business of each of River Hawk, the Operating
Subsidiaries, the PAC Merger Sub and the PS Merger Sub has not been, and is
not
being, conducted in violation of any Applicable Law.
SECTION
2.11 TAX
RETURNS AND PAYMENT
Except
as
disclosed in the Financial Statements filed by River Hawk with the SEC, there
is
no material claim for Taxes that is a Lien against the property of River Hawk
other than Liens for Taxes not yet due and payable, none of which is material.
River Hawk has not received written notification of any audit of any Tax Return
of River Hawk being conducted or pending by a Tax authority where an adverse
determination could have a Material Adverse Effect on River Hawk, no extension
or waiver of the statute of limitations on the assessment of any Taxes has
been
granted by River Hawk which is currently in effect, and River Hawk is not a
party to any agreement, contract or arrangement with any Tax authority or
otherwise, which may result in the payment of any material amount in excess
of
the amount reflected on the above referenced River Hawk Financial
Statements.
(i)
(ii) SECTION
2.12SECURITY
LISTING
River
Hawk is a fully compliant reporting company under the Securities Exchange Act
of
1934, as amended (the “Exchange
Act”),
and
all River Hawk public filings required under the Exchange Act have been made.
The common stock of River Hawk is listed for quotation on the Over The Counter
Bulletin Board (the “OTCBB”).
To
the Knowledge of River Hawk, River Hawk has not been threatened or is not
subject to removal of its common stock from the OTCBB.
(iii) SECTION
2.13FINDERS’
FEES
River
Hawk has not incurred, nor will it incur, directly or indirectly, any liability
for brokers’ or finders’ fees or agents’ commissions or investment bankers’ fees
or any similar charges in connection with this Agreement or any transaction
contemplated hereby.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF PROFILE AVIATION AND PROFILE SERVICES
Profile
Aviation and Profile Services hereby represents and warrants to River Hawk,
the
PAC Merger Sub, and the PS Merger Sub as of the date of this Agreement and
as of
the Effective Time (except as otherwise indicated), as follows:
SECTION
3.01 ORGANIZATION,
STANDING AND POWER
(a) Profile
Aviation. Profile
Aviation is a privately held corporation duly incorporated, validly existing
and
in good standing under the laws of the State of North Carolina and has full
corporate power and authority to conduct its business as presently conducted
by
it and to enter into and perform this Agreement and to carry out the
transactions contemplated by this Agreement. Profile Aviation is duly qualified
to do business as a foreign corporation in each state in which the nature of
the
business conducted by it or the character or location of the properties and
assets owned or leased by it make such qualification necessary.
(b) Profile
Services. Profile
Services is a privately held corporation duly incorporated, validly existing
and
in good standing under the laws of the State of Delaware, and has full corporate
power and authority to conduct its business as presently conducted by it and
to
enter into and perform this Agreement and to carry out the transactions
contemplated by this Agreement. Profile Services is duly qualified to do
business as a foreign corporation in each state in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it make such qualification necessary.
SECTION
3.02 CAPITALIZATION
(a) Profile
Aviation. There
are
________ shares of Profile Aviation capital stock authorized, consisting of
_______ shares of common stock with $.____ par value (the “Profile
Aviation Common Shares”).
As of
the date of this Agreement, there were ______ issued and outstanding Profile
Aviation Common Shares. No Profile Aviation Common Shares have been reserved
for
issuance to any Person, and there are no outstanding rights, warrants, options
or agreements for the purchase of Profile Aviation Common Shares. No Person
is
entitled to any rights with respect to the conversion, exchange or delivery
of
the Profile Aviation Common Shares. The Profile Aviation Common Shares have
been
issued in compliance with Applicable Law.
(b) Profile
Services. There
are
________ shares of Profile Services capital stock authorized, consisting of
_______ shares of common stock with $.____ par value (the “Profile
Services Common Shares”).
As of
the date of this Agreement, there were ____________ issued and outstanding
Profile Services Common Shares. No Profile Services Common Shares have been
reserved for issuance to any Person, and there are no outstanding rights,
warrants, options or agreements for the purchase of Profile Services Common
Shares. No Person is entitled to any rights with respect to the conversion,
exchange or delivery of the Profile Services Common Shares. The Profile Services
Common Shares have been issued in compliance with Applicable Law.
SECTION
3.03 AUTHORITY
FOR AGREEMENT
The
execution, delivery and performance of this Agreement by Profile Aviation and
Profile Services has been duly authorized by all necessary corporate action,
and
this Agreement constitutes the valid and binding obligation of Profile Aviation
and Profile Services, enforceable against Profile Aviation and Profile Services,
in accordance with its terms, except as enforceability may be affected by
bankruptcy, insolvency or other laws of general application affecting the
enforcement of creditors' rights. The execution and consummation of the
transactions contemplated by this Agreement and compliance with its provisions
by Profile Aviation and Profile Services will not violate any provision of
Applicable Law and will not conflict with or result in any breach of any of
the
terms, conditions, or provisions of, or constitute a default under, Profile
Aviation’s Certificate of Incorporation or Bylaws and Profile Services’
Certificate of Incorporation or Bylaws, in each case as amended, or, to the
Knowledge of Profile Aviation and Profile Services, in any material respect,
any
indenture, lease, loan agreement or other agreement instrument to which Profile
Aviation and Profile Services is a party or by which it or any of them or any
of
its or their properties are bound, or any decree, judgment, order, statute,
rule
or regulation applicable to Profile Aviation and Profile Services.
SECTION
3.04 GOVERNMENTAL
OR THIRD PARTY CONSENT
No
consent, waiver, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or
other federal, state, county, local or other foreign governmental authority,
instrumentality, agency or commission or any third party, including a party
to
any agreement with Profile Aviation or Profile Services, is required by or
with
respect to Profile Aviation or Profile Services in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby, except for such consents, waivers, approvals, orders,
authorizations, registrations, declarations and filings as may be required
under
(i) applicable securities laws, or (ii) the Nevada General Corporation Law,
Delaware General Corporation Law, or North Carolina Business Corporation
Act.
SECTION
3.05 LITIGATION
There
is
no action, suit, investigation, audit or proceeding pending against or, to
the
Knowledge of Profile Aviation and Profile Services, threatened, against or
affecting Profile Aviation or Profile Services or any of its material assets
or
properties before any court or arbitrator or any governmental body, agency
or
official.
SECTION
3.06 COMPLIANCE
WITH
APPLICABLE LAWS
To
the
Knowledge of Profile Aviation and Profile Services, the business of Profile
Aviation and Profile Services has not been, and is not being, conducted in
violation of any Applicable Law, except for possible violations which
individually or in the aggregate have not had and are not reasonably likely
to
have a Material Adverse Effect on Profile Aviation and Profile Services.
SECTION
3.07 TAX
RETURNS AND PAYMENT
Profile
Aviation and Profile Services has duly and timely filed all material Tax Returns
required to be filed by them and has duly and timely paid all Taxes shown
thereon to be due. To the Knowledge of Profile Aviation and Profile Services,
there is no material claim for Taxes that is a Lien against the property of
Profile Aviation and Profile Services other than Liens for Taxes not yet due
and
payable, none of which is material. Profile Aviation and Profile Services has
not received written notification of any audit of any Tax Return of Profile
Aviation or Profile Services being conducted or pending by a Tax authority
where
an adverse determination could have a Material Adverse Effect on Profile
Aviation and Profile Services, no extension or waiver of the statute of
limitations on the assessment of any Taxes has been granted by Profile Aviation
or Profile Services which is currently in effect, and Profile Services nor
is
Profile Aviation a party to any agreement, contract or arrangement with any
Tax
authority or otherwise, which may result in the payment of any material amount
in excess of the amount reflected on the above referenced Profile Aviation
and
Profile Services’ financial statements.
(iv) SECTION
3.08FINDERS’
FEES
Profile
Aviation and Profile Services has not incurred, nor will it incur, directly
or
indirectly, any liability for brokers’ or finders’ fees or agents’ commissions
or investment bankers’ fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
ARTICLE
IV
CERTAIN
COVENANTS AND AGREEMENTS
SECTION
4.01 COVENANTS
OF PROFILE AVIATION AND PROFILE SERVICES
Profile
Aviation and Profile Services covenants and agrees that, during the period
from
the date of this Agreement until the Closing Date, Profile Aviation and Profile
Services shall, except as otherwise disclosed in this Agreement and other than
as contemplated by this Agreement or for the purposes of effecting the Closing
pursuant to this Agreement, conduct its business as presently operated and
solely in the ordinary course, and consistent with such operation, and, in
connection therewith, without the written consent of River Hawk:
| (a) |
shall
not amend their Certificate of Incorporation or
Bylaws;
|
| (b) |
shall
not pay or agree to pay to any employee, officer or director compensation
that is in excess of the current compensation level of such employee,
officer or director other than salary increases or payments made
in the
ordinary course of business or as otherwise provided in any contracts
or
agreements with any such employees;
|
| (c) |
shall
not merge or consolidate with any other entity or acquire or agree
to
acquire any other entity;
|
| (d) |
shall
not sell, transfer, or otherwise dispose of any material assets required
for the operations of Profile Aviation or Profile Services’ business,
except in the ordinary course of business consistent with past
practices;
|
| (e) |
shall
not declare or pay any dividends on or make any distribution of any
kind
with respect to the Profile Shares;
and
|
| (f) |
shall
use commercially reasonable efforts to comply with and not be in
default
or violation under any known law, regulation, decree or order applicable
to Profile Aviation and Profile Services’ business, operations or assets
where such violation would have a Material Adverse Effect on Profile
Aviation or Profile Services.
|
SECTION
4.02 COVENANTS
OF RIVER HAWK
River
Hawk covenants and agrees that, during the period from the date of this
Agreement until the Closing Date, River Hawk shall not, other than as
contemplated by this Agreement or for the purposes of effecting the Closing
pursuant to this Agreement, conduct its business as presently operated and
solely in the ordinary course, and consistent with such operation, and, in
connection therewith, without the prior written consent of Profile Aviation
and
Profile Services, which shall be disclosed on Schedule
4.02
prior to
the Closing:
| (a) |
shall
not amend its Articles of Incorporation or
Bylaws;
|
| (b) |
shall
not pay or agree to pay to any employee, officer or director compensation
of any kind or amount;
|
| (c) |
shall
not merge or consolidate with any other entity or acquire or agree
to
acquire any other entity;
|
| (d) |
shall
not create, incur, assume, or guarantee any material indebtedness
for
money borrowed except in the ordinary course of business, or create
or
suffer to exist any mortgage, Lien or other encumbrance on any of
its
material assets;
|
| (e) |
shall
not make any material capital expenditure or series of capital
expenditures except in the ordinary course of
business;
|
| (f) |
shall
not declare or pay any dividends on or make any distribution of any
kind
with respect to River Hawk;
|
| (g) |
shall
not issue any additional shares of River Hawk capital stock or take
any
action affecting the capitalization of River Hawk or the River Hawk
Common
or Preferred Shares; and
|
| (h) |
shall
not grant any severance or termination pay to any director, officer
or any
other employees of River Hawk.
|
SECTION
4.03 COVENANTS
OF THE PARTIES
(a) Announcement.
Neither
Profile Aviation nor Profile Services, on the one hand, nor River Hawk on the
other hand, shall issue any press release or otherwise make any public statement
with respect to this Agreement or the transactions contemplated hereby without
the prior consent of the other Party (which consent shall not be unreasonably
withheld), except as may be required by applicable law or securities regulation.
Upon execution of this Agreement, River Hawk shall issue a press release, which
shall be approved by Profile Aviation and Profile Services, and file a Current
Report on Form 8-K reporting the execution of this Agreement.
(b) Notification
of Certain Matters.
Profile
Aviation and Profile Services shall give prompt written notice to River Hawk,
and River Hawk shall give prompt written notice to Profile Aviation and Profile
Services, of:
(i) The
occurrence or nonoccurrence of any event the occurrence or nonoccurrence of
which would be reasonably likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at or prior to the Effective Time; and
(ii) Any
material failure of Profile Aviation or Profile Services on the one hand, or
River Hawk, on the other hand, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder.
(c) Reasonable
Best Efforts.
Before
Closing, upon the terms and subject to the conditions of this Agreement, the
Parties agree to use their respective reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable (subject to Applicable Law) to consummate and make effective
the Merger and other transactions contemplated by this Agreement as promptly
as
practicable including, but not limited to:
(i) The
preparation and filing of all forms, registrations and notices required to
be
filed to consummate the Share Purchase and the Merger, including without
limitation, any approvals, consents, orders, exemptions or waivers by any third
party or governmental entity; and
(ii) The
satisfaction of the Party's conditions precedent to Closing.
(d) Access
to Information
(i) Inspection
by Profile Aviation and Profile Services.
River
Hawk will make available for inspection by Profile Aviation and Profile
Services, during normal business hours and in a manner so as not to interfere
with normal business operations, all of River Hawk’s records (including tax
records), books of account, premises, contracts and all other documents in
River
Hawk’s possession or control that are reasonably requested by Profile Aviation
and Profile Services to inspect and examine the business and affairs of River
Hawk. River Hawk will cause its managerial employees and regular independent
accountants to be available upon reasonable advance notice to answer questions
of Profile Aviation concerning the business and affairs of River Hawk. Profile
Aviation and Profile Services will treat and hold as confidential any
information it receives from River Hawk in the course of the reviews
contemplated by this Section 4.03(d). No examination by Profile Aviation or
Profile Services will, however, constitute a waiver or relinquishment by Profile
Aviation or Profile Services of its rights to rely on River Hawk’s or the River
Hawk Shareholders’ covenants, representations and warranties made herein or
pursuant hereto.
(ii) Inspection
by River Hawk.
Profile
Aviation and Profile Services will, if requested, make available for inspection
by River Hawk, during normal business hours and in a manner so as not to
interfere with normal business operations, all of the records of Profile
Aviation and Profile Services (including tax records), books of account,
premises, contracts and all other documents in their possession or control
that
are reasonably requested by River Hawk to inspect and examine the business
and
affairs of Profile Aviation and Profile Services. Profile Aviation and Profile
Services will cause its managerial employees and regular independent accountants
to be available upon reasonable advance notice to answer questions of River
Hawk
concerning the business and affairs of Profile Aviation and Profile Services.
River Hawk will treat and hold as confidential any information it receives
from
Profile Aviation or Profile Services in the course of the reviews contemplated
by this Section 4.03(e). No examination by River Hawk will, however, constitute
a waiver or relinquishment by River Hawk of its rights to rely on Profile
Aviation and Profile Services’ covenants, representations and warranties made
herein or pursuant hereto.
ARTICLE
V
CONDITIONS
PRECEDENT
SECTION
5.01 CONDITIONS
PRECEDENT TO THE PARTIES' OBLIGATIONS
The
obligations of the Parties as provided herein shall be subject to each of the
following conditions precedent, unless waived in writing by River Hawk, Profile
Aviation and Profile Services:
(a) Consents,
Approvals.
The
Parties shall have obtained all necessary consents and approvals of their
respective boards of directors, and all consents, approvals and authorizations
required under their respective charter documents, and all material consents,
including any material consents and waivers by the Parties’ respective lenders
and other third parties, if necessary, to the consummation of the transactions
contemplated by this Agreement.
(b) Shareholder
Approval.
This
Agreement and the transactions contemplated hereby shall have been approved
by
the shareholders of Profile Aviation and Profile Services in accordance with
the
applicable provisions of the Nevada Revised Statutes, General Statutes of North
Carolina and Delaware Code and their respective corporate bylaws.
(c) Absence
of Certain Litigation.
No
action or proceeding shall be threatened or pending before any governmental
entity or authority which, in the reasonable opinion of counsel for the Parties,
is likely to result in a restraint, prohibition or the obtaining of damages
or
other relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
(d) Merger
Subsidiary Formation.
River
Hawk shall have formed PAC Merger Sub and PS Merger Sub as its wholly owned
subsidiaries prior to the Closing Date.
SECTION
5.02 CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF RIVER HAWK
The
obligations of River Hawk on the Closing Date as provided herein shall be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions precedent, unless waived in writing by River Hawk:
(a) Consents
and Approvals.
Profile
Aviation and Profile Services shall have obtained all material consents,
including any material consents and waivers by Profile Aviation and Profile
Services' lenders and other third parties, if necessary, to the consummation
of
the transactions contemplated by this Agreement.
(b)
Representations
and Warranties.
The
representations and warranties by Profile Aviation and Profile Services in
Article III herein shall be true and accurate in all material respects on and
as
of the Closing Date with the same force and effect as though such
representations and warranties had been made at and as of the Closing Date,
except to the extent that any changes therein are specifically contemplated
by
this Agreement.
(c) Performance.
Profile
Aviation and Profile Services shall have performed and complied in all material
respects with all agreements to be performed or complied with by it pursuant
to
this Agreement at or prior to the Closing.
(d) Proceedings
and Documents.
All
corporate, company and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be reasonably satisfactory in substance and form to
River Hawk and its counsel, and River Hawk and its counsel shall have received
all such counterpart originals (or certified or other copies) of such documents
as they may reasonably request.
(e) Certificate
of Good Standing.
Profile
Aviation shall have delivered to River Hawk a certificate as to the good
standing of Profile Aviation certified by the Secretary of State of North
Carolina on or within fourteen (14) days prior to the Closing Date.
Additionally, Profile Services shall have delivered to River Hawk a certificate
as to the good standing of Profile Aviation certified by the Secretary of State
of North Carolina on or within fourteen (14) days prior to the Closing Date.
(f) Material
Changes.
Except
as contemplated by this Agreement, since the date hereof, Profile Aviation
and
Profile Services shall not have suffered a Material Adverse Effect, and, without
limiting the generality of the foregoing, there shall be no pending litigation
to which Profile Aviation and Profile Services is a party which is reasonably
likely to have a Material Adverse Effect on Profile Aviation or Profile
Services.
(g) Due
Diligence.
River
Hawk shall have completed to its own satisfaction due diligence in relation
to
Profile Aviation and Profile Services, except that this shall cease to be a
condition precedent unless on or prior to March 29, 2007 River Hawk shall have
delivered a written notice stating that it is not satisfied with the results
of
its due diligence.
(h) SEC
Filing.
No less
than one (1) week prior to the Closing, Profile Aviation and Profile Services
shall have delivered to River Hawk the financial statements, report of Profile
Aviation and Profile Services’ independent registered public accountant, and
other information required for inclusion in the Current Report that River Hawk
will file with the SEC within four (4) business days after the
Closing.
SECTION
5.03 CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF PROFILE
AVIATION AND PROFILE SERVICES
The
obligations of Profile Aviation and Profile Services on the Closing Date as
provided herein shall be subject to the satisfaction, on or prior to the Closing
Date, of the following conditions precedent, unless waived in writing by Profile
Aviation and Profile Services:
(a) Consents
And Approvals.
River
Hawk, the PAC Merger Sub and the PS Merger Sub shall have obtained all material
consents, including any material consents and waivers of its respective lenders
and other third parties, if necessary, to the consummation of the transactions
contemplated by this Agreement.
(b) Representations
And Warranties.
The
representations and warranties by River Hawk, the PAC Merger Sub and the PS
Merger Sub in Article II herein shall be true and accurate in all material
respects on and as of the Closing Date with the same force and effect as though
such representations and warranties had been made at and as of the Closing
Date,
except to the extent that any changes therein are specifically contemplated
by
this Agreement.
(c) Performance.
River
Hawk, the PAC Merger Sub and the PS Merger Sub shall have performed and complied
in all material respects with all agreements to be performed or complied with
by
it pursuant to this Agreement prior to or at the Closing.
(d) Proceedings
And Documents.
All
corporate, company and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be reasonably satisfactory in substance and form to
Profile Aviation and Profile Services and its counsel, and Profile Aviation
and
Profile Services and its counsel shall have received all such counterpart
originals (or certified or other copies) of such documents as they may
reasonably request.
(e) Certificates
of Good Standing.
River
Hawk shall have delivered to Profile Aviation and Profile Services a certificate
as to its good standing in the State of Nevada, and the PAC Merger Sub and
the
PS Merger Sub shall have delivered to Profile Aviation and Profile Services
a
certificate as to their good standing in their respective states of
incorporation, in each case certified by the Secretary of State not more than
fourteen (14) business days prior to the Closing Date.
(f) Material
Changes.
Except
as contemplated by this Agreement, since the date hereof, neither River Hawk,
the PAC Merger Sub nor the PS Merger Sub shall have suffered a Material Adverse
Effect and, without limiting the generality of the foregoing, there shall be
no
pending litigation to which River Hawk, PAC Merger Sub or the PS Merger Sub
is a
party which is reasonably likely to have a Material Adverse Effect on the
Parties.
(g) Due
Diligence.Profile
Aviation and Profile Services shall have completed to its own satisfaction
due
diligence in relation to River Hawk, except that this shall cease to be a
condition precedent unless on or prior to September 15, 2007 Profile Aviation
and Profile Services shall have delivered a written notice stating that it
is
not satisfied with the results of its due diligence;
(h) Status
of River Hawk.
As at
the Effective Time of the Merger, River Hawk (i) shall be a fully compliant
reporting public company under the Exchange Act, and shall be current in all
of
its reports required to be filed under the Exchange Act and, (ii) shall not
have
been threatened or subject to delisting from the OTCBB.
(i) River
Hawk Principal Shareholders’ Holdings.
On the
date of Closing, the individuals listed, which shall be disclosed on
Schedule
2.03
prior to
the Closing, shall own up to approximately 87.6% of River Hawk Common
Shares.
(j) River
Hawk Board of Directors.
At the
Effective Time of the Merger the officers and members of the board of directors
of River Hawk shall consist of the persons designated, which shall be disclosed
on Schedule
5.03
prior to
the Closing.
(k) Employment
Agreement.
River
Hawk shall enter into a three (3) year employment agreement with Xxxxxx X.
Xxxxx
(the “Employment
Agreement”),
the
terms of which will be determined prior to the Closing Date and attached hereto
in the form of the Employment Agreement in Schedule
5.02.
(l) Information
Statement.
No less
than ten (10) days prior to the Closing, to the extent required under the
Securities Act of 1933 or the Exchange Act of 1934, River Hawk shall have filed
with the SEC and mailed to its shareholders of record an information statement
containing the information required by SEC Rule 14f-1, which shall be provided
by Profile Aviation and Profile Services.
ARTICLE
VI
TERMINATION
SECTION
6.01 TERMINATION
This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time by:
(a) The
mutual written consent of the Boards of Directors of River Hawk, Profile
Aviation and Profile Services;
(b) Either
River Hawk, on the one hand, or Profile Aviation and Profile Services, on the
other hand, if any governmental entity or court of competent jurisdiction shall
have issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the Parties shall use their commercially
reasonable best efforts to lift), which restrains, enjoins or otherwise
prohibits the Share Purchase or the Merger or the issuance of the Merger Shares
as contemplated herein and such order, decree, ruling or other action shall
have
become final and non-appealable;
(c) River
Hawk, if Profile Aviation and Profile Services shall have breached in any
material respect any of its or his representations, warranties, covenants or
other agreements contained in this Agreement, and the breach cannot be or has
not been cured within thirty (30) calendar days after the giving of written
notice by River Hawk to Profile Aviation and Profile Services, or by River
Hawk,
if it is not satisfied with the results of its due diligence investigation
and
it so notifies Profile Aviation and Profile Services on or before September
15,
2007;
(d) Profile
Aviation and Profile Services, if River Hawk shall have breached in any material
respect any of its representations, warranties, covenants or other agreements
contained in this Agreement, and the breach cannot be or has not been cured
within thirty (30) calendar days after the giving of written notice by Profile
Aviation and Profile Services to River Hawk, or by Profile Aviation and Profile
Services if it is not satisfied with the results of its due diligence
investigation and it so notifies River Hawk on or before September 15, 2007;
or
(e) Without
any action on the part of the Parties if required by Applicable Law or if the
Closing shall not be consummated by September 30, 2007, unless extended by
written agreement of River Hawk and Profile Aviation and Profile Services.
SECTION
6.02 EFFECT
OF TERMINATION
If
this
Agreement is terminated as provided in Section 6.01, written notice of such
termination shall be given by the terminating Party to the other Party
specifying the provision of this Agreement pursuant to which such termination
is
made, this Agreement shall become null and void and there shall be no liability
on the part of River Hawk, Profile Aviation or Profile Services, provided,
however, that (a) the provisions of Article VII hereof shall survive the
termination of this Agreement, (b) nothing in this Agreement shall relieve
any
Party from any liability or obligation with respect to any willful breach of
this Agreement and (c) termination shall not affect accrued rights or
liabilities of any party at the time of such termination.
ARTICLE
VII
CONFIDENTIALITY
SECTION
7.01 CONFIDENTIALITY
River
Hawk, on the one hand, and Profile Aviation and Profile Services, on the other
hand, will keep confidential all information and documents obtained from the
other, including but not limited to any information or documents provided
pursuant to Section 4.03(e) hereof (except for any information disclosed to
the
public pursuant to a press release authorized by the Parties); and in the event
the Closing does not occur or this Agreement is terminated for any reason,
will
promptly return such documents and all copies of such documents and all notes
and other evidence thereof, including material stored on a computer, and will
not use such information for its own advantage, except to the extent that (i)
the information must be disclosed by law, (ii) the information becomes publicly
available by reason other than disclosure by the Party subject to the
confidentiality obligation, (iii) the information is independently developed
without use of or reference to the other Party’s confidential information, (iv)
the information is obtained from another source not obligated to keep such
information confidential, or (v) the information is already publicly known
or
known to the receiving Party when disclosed as demonstrated by written
documentation in the possession of such Party at such time.
ARTICLE
VIII
INDEMNIFICATION
SECTION
8.01 INDEMNIFICATION
BY RIVER HAWK
River
Hawk shall indemnify, defend and hold harmless each of Profile Aviation and
Profile Services, any subsidiary or affiliate thereof and each person who is
now, or has been at any time prior to the date hereof or who becomes prior
to
the Closing, a shareholder, officer, director or partner of Profile Aviation
and
Profile Services, any subsidiary or affiliate thereof or an employee of Profile
Aviation and Profile Services, any subsidiary or affiliate thereof and their
respective heirs, legal representatives, successors and assigns (the
“Profile
Aviation and Profile Services Indemnified Parties”)
against all losses, claims, damages, costs, expenses (including reasonable
attorneys’ fees), liabilities or judgments or amounts that are paid in
settlement of or in connection with any threatened or actual third party claim,
action, suit, proceeding or investigation based in whole or in part on or
arising in whole or in part out of (i) any material breach of this Agreement
by
River Hawk or any subsidiary or affiliate thereof, including but not limited
to
failure of any representation or warranty to be true and correct at or before
the Closing, or (ii) any willful or grossly negligent act, omission or conduct
of any officer, director or agent of River Hawk or any subsidiary or affiliate
thereof prior to the Closing, whether asserted or claimed prior to, at or after,
the Closing. Any Profile Aviation and Profile Services Indemnified Party wishing
to claim indemnification under this Section 8.01, upon learning of any such
claim, action, suit, proceeding or investigation, shall notify River Hawk in
writing, but the failure to so notify shall not relieve River Hawk from any
liability that it may have under this Section 8.01, except to the extent that
such failure would materially prejudice River Hawk.
SECTION
8.02 INDEMNIFICATION
BY PROFILE AVIATION AND PROFILE SERVICES
Profile
Aviation and Profile Services shall indemnify, defend and hold harmless each
of
River Hawk, any subsidiary or affiliate thereof and each person who is now,
or
has been at any time prior to the date hereof or who becomes prior to the
Closing, a shareholder, officer, director or partner of River Hawk, any
subsidiary or affiliate thereof or an employee of River Hawk, any subsidiary
or
affiliate thereof and their respective heirs, legal representatives, successors
and assigns (the “River
Hawk Indemnified Party”
collectively, the “River
Hawk Indemnified Parties”)
against all losses, claims, damages, costs, expenses (including reasonable
attorneys’ fees), liabilities or judgments or amounts that are paid in
settlement of or in connection with any threatened or actual third party claim,
action, suit, proceeding or investigation based in whole or in part on or
arising in whole or in part out of (i) any material breach of this Agreement
by
Profile Aviation and Profile Services, or any subsidiary or affiliate thereof,
including but not limited to failure of any representation or warranty to be
true and correct at or before the Closing, or (ii) any willful or negligent
act,
omission or conduct of any officer, director or agent of Profile Aviation and
Profile Services or any subsidiary or affiliate thereof prior to the Closing,
whether asserted or claimed prior to, at or after, the Closing. Any River Hawk
Indemnified Party wishing to claim indemnification under this Section 8.02,
upon
learning of any such claim, action, suit, proceeding or investigation, shall
notify Profile Aviation and Profile Services in writing, but the failure to
so
notify shall not relieve Profile Aviation and Profile Services from any
liability that it may have under this Section 8.02, except to the extent that
such failure would materially prejudice Profile Aviation or Profile
Services.
SECTION
8.03 INDEMNIFICATION
OF EXCHANGE AGENT
The
Parties (for the purposes of this Section 8.03, the “Indemnitors”)
agree
to indemnify the Exchange Agent and his employees and agents (collectively,
the
“Indemnitees”)
against, and hold them harmless of and from, any and all loss, liability, cost,
damage and expense, including without limitation, reasonable counsel fees,
which
the Indemnitees, or any of them, may suffer or incur by reason of any action,
claim or proceeding brought against the Indemnitees, or any one of them, arising
out of or relating in any way to the Exchange Agent’s service in such capacity,
unless such action, claim or proceeding is the result of the willful misconduct
or gross negligence of any of the Indemnitees.
ARTICLE
IX
MISCELLANEOUS
SECTION
9.01 EXPENSES
Except
as
contemplated by this Agreement, all costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated by
this Agreement shall be paid by the Party incurring such expenses.
SECTION
9.02 GOVERNING
LAW
Except
to
the extent that the law of the State of Delaware or that of North Carolina
is
mandatorily applicable to the Merger, this Agreement shall be governed by the
laws of the State of Nevada, without giving effect to the principles of
conflicts of laws thereof, as applied to agreements entered into and to be
performed in such state.
SECTION
9.03 NOTICES
All
notices and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given or made as follows:
(a) If
sent
by reputable overnight air courier (such as Federal Express), two (2) business
days after being sent;
(b) If
sent
by facsimile transmission, with a copy mailed on the same day in the manner
provided in clause (a) above, when transmitted and receipt is confirmed by
the
fax machine; or
(c)If
otherwise actually personally delivered, when delivered.
All
notices and other communications under this Agreement shall be sent or delivered
as follows:
If
to
Profile Aviation and Profile Services, to:
Xxxxxx
X.
Xxxxx
Profile
Aviation Center, Inc.
0000
0xx
Xxx.
Xxxxx
Xxxxxxx,
XX 00000
with
a
copy to (which shall not constitute notice):
____________________________
____________________________
____________________________
____________________________
If
to
River Hawk and/or the Shareholders, to:
Xxxxxx
Xxxxxxxx
River
Hawk Aviation, Inc.
000
X.
Xxxxxxxx Xxxxx, Xxxxx #0
Xxxxxxxx
Xxxx, XX 00000
with
a
copy to (which shall not constitute notice):
Xxxxx
X.
Xxxx
The
Xxxx
Law Group, PLLC
000
Xxxxx
Xx., Xxxxx 0000
Xxxxxxx,
XX 00000
Telephone:
000-000-0000 Ext. 215
Facsimile:
000-000-0000
Each
Party may change its address by written notice in accordance with this Section.
SECTION
9.04
ENTIRE AGREEMENT
This
Agreement (including the documents and instruments referred to in this
Agreement) contains the entire understanding of the Parties with respect to
the
subject matter contained in this Agreement, and supersedes and cancels all
prior
agreements, negotiations, correspondence, undertakings and communications of
the
Parties, oral or written, respecting such subject matter.
SECTION
9.05 ASSIGNMENT
Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned by any of the Parties (whether by operation of
law
or otherwise) without the prior written consent of the other Parties;
provided
that in
no event may the right to indemnification provided by Article VIII hereto be
assigned by any of the Parties, with or without consent, except by operation
of
law. Subject to the immediately foregoing sentence of this Section 9.05, this
Agreement will be binding upon, inure to the benefit of and be enforceable
by,
the Parties and their respective successors, assigns, heirs and
representatives.
SECTION
9.06 COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which shall be considered one and the same
agreement.
SECTION
9.07 NO
THIRD PARTY BENEFICIARIES
Except
as
expressly provided by this Agreement, nothing herein is intended to confer
upon
any person or entity not a Party to this Agreement any rights or remedies under
or by reason of this Agreement.
SECTION
9.08 RULES
OF CONSTRUCTION
The
Parties agree that they have been represented by counsel during the negotiation
and execution of this Agreement and, therefore, waive the application of any
law, regulation, holding or rule of construction providing that ambiguities
in
an agreement or other document will be construed against the party drafting
such
agreement or document.
[Signature
Page to Follow]
IN
WITNESS WHEREOF,
the
Parties have duly executed this Agreement as of the date first above written.
RIVER
HAWK AVIATION, INC.
By:
/s/
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
Title:
|
Chief
Executive Officer
|
PAC
ACQUISITION CORP.
By:
/s/
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
Title:
|
Chief
Executive Officer
|
PS
ACQUISITION CORP.
By:
/s/
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
Title:
|
Chief
Executive Officer
|
PROFILE
AVIATION CENTER, INC.
By:
/s/
|
Name:
|
Xxxxxx
X. Xxxxx
|
|
Title:
|
President
|
PROFILE
AVIATION SERVICES, INC.
By:
/s/
|
Name:
|
Xxxxxx
X. Xxxxx
|
|
Title:
|
President
|
