EXHIBIT 2.2
PLAN OF MERGER
PLAN OF MERGER, dated July 10, 1997, by and between Airways Corporation, a
Delaware corporation ("Airways"), and ValuJet, Inc., a Nevada corporation
("VJET"), herein sometimes referred to as the "Surviving Corporation", said
corporations being hereinafter collectively referred to as the "Constituent
Corporations".
W I T N E S S E T H:
WHEREAS, Airways is a corporation organized and existing under and by
virtue of the laws of the State of Delaware and having an authorized
capitalization of 1,000,000 shares of preferred stock, $.01 par value per share,
no shares of which are issued or outstanding and 19,000,000 shares of common
stock, $.01 par value per share ("Airways Common Stock"), of which 9,067,937
shares are issued and outstanding as of the date of this Plan of Merger; and
WHEREAS, VJET is a corporation organized and existing under and by virtue
of the laws of the State of Nevada and having an authorized capitalization of
5,000,000 shares of preferred stock, par value $.01 per share ("Preferred
Stock"), no shares of which are issued or outstanding and 1,000,000,000 shares
of Common Stock, par value $.001 per share ("VJET Common Stock") of which
54,969,238 shares are issued and outstanding as of the date of this Plan of
Merger; and
WHEREAS, Airways and VJET have entered into a Plan of Reorganization and
Agreement of Merger, dated as of July 10, 1997 (the "Merger Agreement"),
providing, among other things, for the execution and acknowledgment of this Plan
of Merger, the execution, acknowledgment and filing of Articles or Certificates
of Merger and the merger of Airways with and into VJET upon the terms set forth
in the Merger Agreement and this Plan of Merger; and
WHEREAS, the respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interest of each of such
corporations and their respective stockholders that Airways be merged with and
into VJET in the manner contemplated herein and in the Merger Agreement and have
adopted resolutions approving this Agreement and the Merger Agreement and have
recommended that the merger of Airways with and into VJET (the
"Merger") be approved, and that this Plan of Merger and the Merger Agreement be
approved and adopted by the stockholders of VJET and by the stockholders of
Airways;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, and subject to the conditions herein set forth, and
for the purpose of stating the terms and conditions of the Merger, the mode of
carrying the same into effect, the manner of exchanging the shares of VJET
Common Stock issued and outstanding immediately prior to the effective date of
the Merger for the Merger Price in accordance with Article V hereof, and such
other details and provisions as are deemed desirable all as contemplated by
Section 78.451 of the Nevada Revised Statutes and Section 252 of the Delaware
General Corporation Law, the parties hereto have agreed, and do hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
ARTICLE I.
The Constituent Corporations shall be merged into a single corporation by
Airways merging into and with VJET, the Surviving Corporation, which shall
survive the Merger, pursuant to the provisions of the Nevada Revised Statutes
and the Delaware General Corporation Law. Upon such Merger, the separate
corporate existence of Airways shall cease and the Surviving Corporation shall
become the owner, without transfer, of all rights and property of the
Constituent Corporations, and the Surviving Corporation shall become subject to
all the debt and liabilities of the Constituent Corporations in the same manner
as if the Surviving Corporation had itself incurred them.
ARTICLE II.
The name of the Surviving Corporation (heretofore "ValuJet, Inc.") shall be
changed to AirTran Holdings, Inc.
ARTICLE III.
A. On the effective date of the merger, which shall be the day the
Articles or Certificates of Merger shall have been accepted for filing and filed
with the Secretary of the State of the States of Nevada and Delaware (the
"Effective Date of the Merger"), the Articles of Incorporation of VJET shall be
the Articles of Incorporation of the Surviving Corporation, provided they shall
be amended as set forth in ARTICLE II above.
B. On the Effective Date of the Merger, the bylaws of VJET, as in effect
on the Effective Date of the Merger, shall remain the bylaws of the Surviving
Corporation. Subsequent to the Effective Date of the Merger, such bylaws shall
be the bylaws of the Surviving Corporation until they shall thereafter be duly
amended, except that such Bylaws shall be amended as set forth in Exhibit B in
the Merger Agreement.
ARTICLE IV.
A. On the Effective Date of the Merger the members of the board of
directors of the Surviving Corporation shall be as follows: [FOUR PERSONS TO BE
SELECTED BY VJET PRIOR TO THE CLOSING AND THREE PERSONS TO BE SELECTED BY
AIRWAYS PRIOR TO THE CLOSING] all of whom shall continue to hold their positions
as directors until the 1999 shareholders meeting and thereafter until the
election and qualification of their respective successors or until they shall
resign, die or otherwise cease to hold such directorships in accordance with the
bylaws of the Surviving Corporation.
B. The Chairman of the Board immediately after the Effective Date of the
Merger shall be Xxxxxx X. Xxxxxxx, a non-employee Director to be designated by
Airways.
C. As of the Effective Date of the Merger, D. Xxxxxx Xxxx shall become
President and Chief Executive Officer of the Surviving Corporation. All other
officers of the Surviving Corporation shall be selected by the Chief Executive
Officer, subject to the approval of the Board of Directors.
ARTICLE V.
A. On the Effective Date of the Merger, each of the then issued and
outstanding shares of VJET Common Stock shall continue to be an issued and
outstanding share of Common Stock of the Surviving Corporation.
B. On the Effective Date of the Merger, each of the then issued and
outstanding shares of Airways Common Stock shall be converted into the right to
receive the "Merger Price" which shall be one (1) share of Common Stock of the
Surviving Corporation for each share of Airways Common Stock.
C. The manner of exchanging the shares of Airways Common Stock issued and
outstanding immediately prior to the Effective Date of the Merger for the Merger
Price to be distributed to the
Airways stockholders in accordance with paragraph (1) below, shall be as
follows:
(1) On the Effective Date of the Merger, each share of Airways Common
Stock issued and outstanding immediately prior to the Effective Date of the
Merger shall, by virtue of the Merger and without any action on the part of the
holder thereof, automatically be cancelled and converted into the Merger Price,
as allocated below, and each share of treasury stock of Airways shall be
cancelled.
(2) On the Effective Date of the Merger:
(i) Each record holder of a certificate theretofore evidencing
Airways Common Stock who has surrendered the same to VJET, duly endorsed with
the signatures appropriately guaranteed and accompanied by any evidence required
by VJET, shall be entitled to receive therefor one (1) share of VJET Common
Stock for each share of Airways Common Stock surrendered. The exchange agent for
VJET, First Union National Bank, Charlotte, North Carolina, will send a notice
and a transmittal form to each holder of an outstanding certificate or
certificates of Airways Common Stock who on the Effective Date of the Merger has
not so surrendered his certificate or certificates, advising such stockholder of
the terms of the conversion effected by the Merger, the method of selling any
fractional share interest (when applicable) as described in Section (2)(iii) of
this Article V, and the procedure for surrendering to the Exchange Agent such
certificate or certificates in exchange for the Merger Price allocated therefor.
Until so surrendered, each such outstanding certificate which prior to the
Effective Date of the Merger represented shares of Airways Common Stock shall
be deemed for all corporate purposes (subject to the further provisions of this
Section (2)) to evidence ownership of one (1) share of VJET Common Stock. After
the Effective Date of the Merger, the stock transfer book of Airways shall be
closed and no transfer of Airways Common Stock shall thereafter be made. If,
after the Effective Date of the Merger, certificates representing shares of
Airways Common Stock are presented to the Surviving Corporation, they shall be
cancelled and exchanged for certificates representing VJET Common Stock.
(ii) If any certificate of VJET Common stock is to be issued to
a person other than the person in whose name the Airways Common Stock
certificate is surrendered in exchange therefor is registered, it shall be a
condition to such exchange that the certificate so surrendered shall be properly
endorsed and otherwise in proper form for transfer and that the person
requesting such transfer pay to Airways and VJET or the Exchange Agent, as the
case may be, any transfer or other taxes required by reason of the issuance of
VJET Common Stock in any name other than that of the registered holder of the
Airways stock certificate surrendered or establish to the satisfaction of VJET
or the Exchange Agent, as the case may be, that such tax has been paid or is not
applicable.
(iii) Neither certificates nor scrip for fractional shares of
VJET Common Stock will be issued but each holder of Airways Common Stock who
otherwise would be entitled to receive a fractional share of VJET Common Stock
will be entitled in lieu thereof to an amount of cash, without interest,
determined by multiplying such fraction times the closing price of VJET's Common
Stock as reported for the NASDAQ Stock Exchange in The Wall Street Journal,
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Southeast Edition, on the Effective Date of the Merger. After the expiration of
sixty (60) days after the Effective Date of the Merger, the Exchange Agent will
sell to VJET, for the account of the holders of such fractional share interests
who have not surrendered stock certificates, shares of VJET Common Stock
equivalent to the aggregate of such fractional share interests then outstanding.
The Exchange Agent will thereafter, subject to any applicable abandoned property
or similar law, until one (1) year after the Effective Date of the Merger pay to
such holders upon surrender of their certificates representing Airways Common
Stock their pro rata proceeds of any such sale, without interest. Any balance of
such proceeds and any amounts paid to the Exchange Agent in respect of VJET
Common Stock issued in the Merger, certificates for which shall not have been
surrendered by the expiration of such one (1) year period, will, together with
any interest thereon, be paid over to VJET as soon as practicable after the
expiration of such period subject to any applicable abandoned property or
similar law. The fee of the Exchange Agent and any expenses of the Exchange
Agent incidental to the sale of fractional share interests shall be borne by the
Surviving Corporation.
D. Prior to the Effective Date of the Merger, the Board of Directors of
VJET will adopt Airways' stock option plans and assume Airway's obligations
under all outstanding warrants and to take such other action as may be required
such that on the Effective Date of Merger, any option or warrant to acquire
Airways Common Stock granted or issued pursuant to any stock option plan or
otherwise that have not been exercised and have not lapsed, shall, by operation
of the Merger, be converted into and become, without any action on the part of
the holder thereof, an option or right to acquire shares of VJET Common Stock
equal to the number of shares of Airways Common Stock subject to such options or
warrants prior
to the Merger. The exercise price for such options or warrants to purchase
shares of VJET Common Stock after the Merger shall be the same as the exercise
price under such stock options or warrants applicable prior to the Merger. All
of the other terms and conditions applicable to the options and warrants to
purchase Airways stock prior to the Merger shall continue to apply after the
Merger.
E. If between the date of this Plan of Merger and the Effective Date of
the Merger the outstanding shares of VJET Common Stock shall have been changed
into a different number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of shares or
readjustment, or a stock dividend thereon shall be declared with a record date
within said period, the conversion ratio set forth in Sections VB and VD above,
shall be correspondingly adjusted.
ARTICLE VI.
This Plan of Merger shall be submitted to the stockholders of the
Constituent Corporations for their approval in the manner provided to the extent
required by the applicable laws of the States of Nevada and Delaware, at
meetings to be held on such date(s) as the respective Boards of Directors of the
Constituent Corporations shall agree. After approval by the vote of the holders
representing a majority of the issued and outstanding shares of VJET and by
Airways, Articles or Certificates of Merger shall be filed as required by the
laws of the States of Nevada and Delaware; the Merger being effective when the
Articles or Certificates of Merger, as provided by the laws of the States of
Nevada and Delaware, are accepted for filing and filed in the office of the
Secretary of State of the States of Nevada and Delaware.
ARTICLE VII.
The Merger may be abandoned at any time (before or after this Plan of
Merger shall have been approved by the stockholders of VJET or Airways) prior to
the Effective Date of the Merger as provided in, and subject to the conditions
set forth in Section 5.03 of the Merger Agreement.
ARTICLE VIII.
The Surviving Corporation hereby agrees that it may be served with process
in the State of Delaware in any proceeding for enforcement of any obligation of
Airways, as well as for
enforcement of any obligation of the Surviving Corporation arising from the
Merger, including any suit or other proceeding to enforce the rights of any
stockholders as determined in appraisal proceedings pursuant to Section 262 of
the Delaware General Corporation Law, and hereby irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service of
procession any such suit or proceedings. The address to which a copy of such
process shall be mailed by the Secretary of State is as follows:
Xxxxxx X. Xxxxxxxx
Ellis, Funk, Xxxxxxxx, Xxxxxxxx & Dokson
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
ARTICLE IX.
For the convenience of the parties hereto and to facilitate the filing and
recording of this Plan of Merger, any number of counterparts hereof may be
executed, and each such counterpart shall be deemed to be an original
instrument.
IN WITNESS WHEREOF, each of the Constituent Corporations have caused this
Plan of Merger to be executed by its respective duly authorized officers and its
respective corporate seal to be impressed thereon, as of the 10th day of July,
1997.
VALUJET, INC.
By /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its Chairman of the Board and
Chief Executive Officer
AIRWAYS CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Its President
