AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of August 16, 1999, by and between Interactive Flight
Technologies, Inc., a Delaware corporation ("Oldco"), and Global Technologies,
Ltd., a Delaware corporation ("Newco"). Oldco and Newco are sometimes referred
to herein as the "Constituent Corporations." The Board of Directors of each of
the Constituent Corporations deems it advisable and to the advantage of its
respective Constituent Corporation that Oldco merge with and into Newco upon the
terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan encompassed by this
Merger Agreement and do hereby agree that Oldco shall merge with and into Newco
on the following terms, conditions and other provisions:
I. TERMS AND CONDITIONS
1.1 Merger. Oldco shall be merged with and into Newco, and Newco shall be
the surviving corporation (the "Surviving Corporation") effective upon the date
and time when this Merger Agreement, or a Certificate of Merger in lieu thereof,
is filed with the Secretary of State of the State of Delaware (the "Effective
Date").
1.2 Internal Revenue Code Qualifications. For Federal income tax purposes,
it is intended that the Merger shall qualify as a reorganization within the
meaning of Section 368(a)(1)(F) of the Internal Revenue Code, as amended.
1.3 Succession. On the Effective Date, the Surviving Corporation shall
succeed to all of the rights, privileges, powers and property, including without
limitation all rights, privileges, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description, of Oldco in the
manner of and as more fully set forth in the General Corporation Law of the
State of Delaware (the "DGCL").
1.4 Common Stock of Oldco and Newco. On the Effective Date, by virtue of
the merger and without any further action on the part of the Constituent
Corporations or their stockholders, (i) each share of Class A Common Stock of
Oldco, par value $.01 per share ("Oldco Common Stock"), issued and outstanding
immediately prior thereto shall be changed and converted into one fully paid and
nonassessable share of Class A Common Stock of the Surviving Corporation, par
value $.01 per share, (ii) each share of Newco Common Stock issued and
outstanding immediately prior thereto shall be cancelled and returned to the
status of authorized but unissued shares and (iii) each share of Oldco Common
Stock issued but held in the treasury of Oldco shall be canceled.
1.5 Preferred Stock of Oldco and Newco. On the Effective Date, by virtue of
the merger and without any further action on the part of the Constituent
Corporations or their stockholders, each share of Series A Preferred Stock of
Oldco, issued and outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Series A Preferred
Stock of the Surviving Corporation.
1.6 Stock Certificates. On and after the Effective Date, all
of the outstanding certificates which prior to that time represented shares of
Oldco capital stock shall be deemed for all purposes to evidence ownership of
and to represent the shares of capital stock of the Surviving Corporation into
which the shares of Oldco capital stock represented by such certificates have
been converted as herein provided and shall be so registered on the books and
records of the Surviving Corporation or its transfer agent. The registered owner
of any such outstanding stock certificate shall, until such certificate shall
have been surrendered for transfer or otherwise accounted for to the Surviving
Corporation or its transfer agent, have and be entitled to exercise any voting
or other right with respect to and to receive any dividend or other distribution
upon the shares of such capital stock evidenced by such outstanding certificate
as above provided.
1.7 Options. On the Effective Date, Newco will assume and continue all of
Oldco's stock option plans, including but not limited to the Interactive Flight
Technologies, Inc. 1994 Stock Option Plan and 1997 Stock Option Plan, and any
other options, warrants or rights to acquire Oldco Common Stock and the
outstanding and unexercised portions of all options, warrants or rights to
acquire Oldco Common Stock shall become options for, warrants or rights to
acquire the same number and kind of shares of common stock of the Surviving
Corporation with no other changes in the terms and conditions of such options,
warrants or rights to acquire, including exercise prices, and upon the Effective
Date, the Surviving Corporation shall assume the outstanding and unexercised
portions of such options, warrants or rights to acquire and the obligations of
Oldco with respect thereto.
II. CERTIFICATE OF INCORPORATION AND BY-LAWS
2.1 Certificate of Incorporation. The Certificate of Incorporation of Newco
shall be the Certificate of Incorporation of the Surviving Corporation (the
"Newco Charter").
2.2 By-laws. The By-laws of Newco in effect on the Effective Date shall be
the By-laws of the Surviving Corporation without change or amendment until
further amended in accordance with the provisions thereof and applicable law.
III. DIRECTORS AND OFFICERS
3.1 Directors. The directors of Oldco shall be the directors of the
Surviving Corporation.
3.2 Officers. The officers of Oldco shall be the officers of the Surviving
Corporation to serve at the pleasure of its Board of Directors.
IV. MISCELLANEOUS
4.1 Further Assurances. From time to time, as and when required by Newco or
by its successors and assigns, there shall be executed and delivered on behalf
of Oldco such deeds and other instruments, and there shall be taken or caused to
be taken by it such further and other action, as shall be appropriate or
necessary in order to vest or perfect in or to conform of record or otherwise,
in Newco the title to and possession of all the property, interests, assets,
rights, privileges, immunities powers, franchises, and authority of Oldco and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of Newco are fully authorized in the name and on behalf of Oldco
or otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
4.2 Amendment. At any time before or after approval by the
stockholders of the Constituent Corporations, this Merger Agreement may be
amended in any manner (except as otherwise provided by the DGCL) as may be
determined in the judgment of the respective Boards of Directors of Newco and
Oldco to be necessary, desirable or expedient.
4.3 Termination. At any time before the Effective Date, this Merger
Agreement may be terminated and the merger may be terminated by the Board of
Directors of either Oldco or Newco or both, notwithstanding the approval of this
Merger Agreement by the stockholders of Oldco and Newco.
4.4 Counterparts. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of Oldco and Newco, is hereby executed on behalf of
each Constituent Corporation by its duly authorized officer.
INTERACTIVE FLIGHT TECHNOLOGIES, INC.
By: Xxxxx X. Xxx
_____________________________
GLOBAL TECHNOLOGIES, LTD.
By: Xxxxx X. Xxx
_____________________________
