Exhibit 2(a)
Plan and Agreement of Reorganization,
dated September 30, 1996,
between AirNet Systems, Inc.
and Float Control, Inc.
________________________
PLAN AND AGREEMENT OF REORGANIZATION
THIS PLAN AND AGREEMENT OF REORGANIZATION (the "Plan"), entered into as of
September 30, 1996, by and between AirNet Systems, Inc., an Ohio corporation
("AirNet"), and Float Control, Inc., a Michigan corporation ("Float Control).
In consideration of the premises and the respective representations,
warranties, covenants, agreements and conditions hereinafter set forth, AirNet
and Float Control, intending to be legally bound hereby, agree as follows:
ARTICLE I
AGREEMENTS WITH RESPECT TO THE MERGER
1.1 MERGER. (a) Subject to the terms and conditions of this Plan and
subject to and in accordance with the Plan and Agreement of Merger among Float
Control, AirNet and AirNet Merger Corporation ("Merger Corp."), a subsidiary of
AirNet to be formed in connection with the transactions contemplated hereby, a
copy of the form of which Plan and Agreement of Merger is attached hereto as
Exhibit A (the "Merger Agreement"), at the Effective Time (as defined in Section
2.2 hereof), Merger Corp. shall be merged with and into Float Control in
accordance with applicable Michigan and Ohio laws and Float Control shall be the
surviving corporation (the "Surviving Corporation"). Each common share, without
par value, of Merger Corp. which is issued and outstanding immediately prior to
the Effective Time shall, by operation of law, become an issued and outstanding
common share, $1.00 par value per share, of the Surviving Corporation.
(b) The Merger Agreement provides for the terms and conditions of the
Merger, the mode of carrying the same into effect, and the manner of converting
the outstanding common shares, $1.00 par value per share (the "Float Control
Shares"), of Float Control into common shares, $0.01 par value per share (the
"AirNet Common Shares"), of AirNet. As more specifically provided by the Merger
Agreement, each of the Float Control Shares which is outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be cancelled and converted into the
right to receive 76.7677 AirNet Common Shares, for an aggregate of 230,299
AirNet Common Shares to be issued in the Merger. No fractional AirNet Common
Shares shall be issued in the Merger to holders of Float Control Shares. Each
holder of Float Control Shares who would otherwise have been entitled to a
fraction of an AirNet Common Share shall receive, in lieu thereof, an amount of
cash (without interest) determined by multiplying the fractional share interest
to which such holder would be entitled by $12.375. The number of AirNet Common
-1-
Shares to be issued pursuant to the Merger has been determined by dividing $2.85
million by the closing price for the AirNet Common Shares, as reported on The
Nasdaq Stock Market on the day before the intention of AirNet to acquire Float
Control was publicly announced.
1.2 FUTURE ACTION. Each of AirNet, Merger Corp. and Float Control shall
take all such actions and execute all such documents, agreements and instruments
which may be necessary or appropriate to satisfy all legal requirements of the
States of Ohio and Michigan, so that the Merger Agreement and the Merger will
become effective on the terms and conditions set forth in this Plan and in the
Merger Agreement.
ARTICLE II
CLOSING
2.1 CLOSING DATE AND PLACE. The closing of the transactions contemplated by
this Plan and the Merger Agreement (the "Closing") shall take place at the
offices of Vorys, Xxxxx, Xxxxxxx and Xxxxx, 00 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx
00000, on October 18, 1996, commencing at 10:00 a.m., local time, or at such
other place and time and on such other date as AirNet and Float Control may
agree.
2.2 EFFECTIVE TIME. The Merger shall become effective on the date and at
the time of filing of a Certificate of Merger with the Ohio Secretary of State
in accordance with Section 1701.81 of the Ohio Revised Code (or such later date
and time as may be specified in the Certificate of Merger so filed). The filing
of such Certificate of Merger with the Ohio Secretary of State shall be preceded
by the filing of a Certificate of Merger with the Michigan Department of
Commerce in the form required by Section 450.1707 of the Michigan Business
Corporation Act. The term "Effective Time" shall mean the date and time when the
Merger becomes effective.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FLOAT CONTROL
3.1 In order to induce AirNet to enter into this Plan and to perform its
obligations hereunder, Float Control hereby warrants and represents to AirNet
that:
(a) CORPORATE STATUS. Float Control is a corporation duly organized,
validly existing and in good standing under the laws of the State of Michigan,
-2-
and is in good standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated, or the business conducted, by it require
such qualification. SCHEDULE 3.1(A)(1) lists each jurisdiction in which Float
Control is qualified as a foreign corporation. Float Control has the full
corporate power and authority to own its property, to carry on its business as
presently conducted and, subject to approval of this Plan and the Merger
Agreement by the shareholders of Float Control, to enter into and perform the
transactions contemplated in this Plan and the Merger Agreement. SCHEDULE
3.1(A)(2) sets forth true and complete copies of the Restated Articles of
Incorporation and Amended and Restated Bylaws of Float Control, in each case as
amended to date. The minute books of Float Control contain complete and accurate
records of all meetings and other corporate actions of Float Control's
shareholders, Board of Directors and committees of directors.
(b) CAPITALIZATION. The authorized capital stock of Float Control consists
solely of 50,000 common shares, $1.00 par value per share, of which 3,000 common
shares are issued and outstanding (the "Float Control Shares"). The record and
beneficial owners of the Float Control Shares and the number of Float Control
Shares held by each such owner are as follows:
Xxxxxx X. Xxxxxx 1,500 Float Control Shares
Xxxxxx X. Xxxxxx 891 Float Control Shares
Xxxxx X. Xxxxxx 186 Float Control Shares
Xxxxxxx X. Xxxxxxx 129 Float Control Shares
Xxxx X. Xxx 78 Float Control Shares
Xxxxxxx Xxxxxx 60 Float Control Shares
Xxx X. Xxxx 45 Float Control Shares
Lincoln X. Xxxxxx 45 Float Control Shares
Xxxxxxx X. Xxxxxx 45 Float Control Shares
Xxxxxxx X. Xxxxxx 21 Float Control Shares
To the best knowledge of Float Control, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxxx, Xxxx X. Xxx, Xxx X. Xxxx, Lincoln X. Xxxxxx, Xxxxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx are residents of the State of Ohio; and Xxxxxx X.
Xxxxxx and Xxxxxxx Xxxxxx are residents of either the State of Florida or the
State of Ohio.
All of the Float Control Shares are validly issued, fully paid and
non-assessable and have been sold in compliance with all applicable federal and
state securities laws, and none of the Float Control Shares have been issued in
violation of the preemptive rights of any person. Float Control has no
commitment or obligation to issue, deliver or sell, under any warrant,
subscription, option, stock purchase plan, stock incentive plan, conversion
right or otherwise, or to purchase, redeem or otherwise acquire, any of its
capital stock. Other than the Shareholders' Agreement, made as of
-3-
______________, 1992, among the Shareholders and Float Control (the "1992
Shareholders' Agreement"), to the best of Float Control's knowledge, no Float
Control Shareholder is a party to any option agreement, voting trust agreement,
proxy arrangement, shareholders' agreement or other agreement, commitment or
understanding of any character relating to any issued or unissued shares of the
capital stock of Float Control. There are no outstanding or authorized stock
appreciation rights, phantom stock, profit participation or similar rights with
respect to Float Control.
(c) CORPORATE AUTHORITY. All proceedings by the Board of Directors of Float
Control necessary to authorize the execution, delivery and performance of this
Plan and the Merger Agreement by Float Control and the consummation of the
transactions contemplated hereby and thereby have been duly and validly taken.
Except for the approval of this Plan and the Merger Agreement by the
shareholders of Float Control, no other corporate proceedings on the part of
Float Control are necessary to consummate the transactions so contemplated. This
Plan has been validly executed by a duly authorized officer of Float Control and
constitutes a valid and binding agreement of Float Control enforceable against
it in accordance with its terms. Upon delivery of the Merger Agreement by Float
Control to AirNet, the Merger Agreement will have been validly executed by duly
authorized officers of Float Control and will constitute a valid and binding
agreement of Float Control enforceable against it in accordance with its terms.
(d) TAXES. Within the times and in the manner prescribed by law, Float
Control has filed all tax returns and reports required by applicable federal,
state and local laws to be filed by it. All such returns and reports are true,
complete and correct in all material respects. True copies of all such returns
and reports have been made available to AirNet. All taxes, interest, penalties
and assessments shown by such reports and returns to be due or claimed to be due
have been paid. No taxing authority has proposed any additional taxes, licenses,
assessments, fees, interest or penalties in respect of Float Control. Float
Control has not been audited by any taxing authority. There is no issue relating
to any such tax and information returns and reports that, if determined
adversely to Float Control, could result in the assertion of any deficiency for
any tax, fee, interest or penalty in connection therewith, and Float Control
knows of no facts or circumstances which could give rise to any such issue.
Float Control is not a party to any tax sharing, tax indemnity or tax allocation
agreement. Float Control has not executed an extension or waiver of any statute
of limitations on the assessment or collection of any tax due that is currently
in effect. For purposes of this Subsection 3.1(d), the terms "taxes" shall refer
to all federal, state, local and foreign taxes, assessments, penalties,
deficiencies, fees and other governmental charges and impositions (including
-4-
without limitation all income tax, unemployment compensation, social security,
payroll, sales and use, excise, property franchise, ad valorem and any other tax
or similar governmental charge of imposition).
(e) PROPERTY AND TITLE. Float Control has no material property other than
the 19% interest which Float Control holds as a general partner of The Check
Exchange System Co., an Ohio general partnership ("Check Exchange"), the 19%
interest which Float Control holds in National Returns Clearinghouse, Ltd.
("Returns"), the interest of Float Control in the contracts identified on
SCHEDULE 3.1(M), the intellectual property identified on SCHEDULE 3.1(O) and a
bank account with The Huntington National Bank, Columbus, Ohio. Float Control is
in rightful possession of, and has good title to, all of its property and
assets, free and clear of all security interests, liens, pledges, options,
hypothecations, charges or interests of any persons whatsoever. All of the
property of Float Control is adequate to continue to conduct Float Control's
business as it is presently being conducted. Float Control does not own, and
since its incorporation has not owned, any personal property or any real
property or conducted any business other than in its capacity as a general
partner of Check Exchange and as a result of its interest in Returns. The
shareholders of Float Control hold no ownership interest in any of the assets
used by Float Control in its business.
(f) LEGAL PROCEEDINGS. There are no actions, suits, proceedings, claims or
investigations threatened or pending in any court, before any governmental
agency or instrumentality or in any arbitration proceeding (i) against, by or
affecting Float Control or its business, prospects, condition (financial or
otherwise) or any of its assets; or (ii) against, by or affecting Float Control
which would prevent the consummation of this Plan or of any of the transactions
contemplated hereby or declare the same to be unlawful or cause the rescission
thereof. Float Control is not a party to any judgment, order, writ, injunction
or decree of any court or governmental entity.
(g) NO CONFLICT. Neither the execution and delivery of this Plan and the
Merger Agreement by Float Control nor the consummation of the transactions
contemplated by this Plan or the Merger Agreement will (i) violate any provision
of or result in the breach of or default (or with notice or lapse of time would
result in a default) under: (a) any provision of any federal, state or local
law, regulation, ordinance, order, rule or administrative ruling of any
governmental authority or instrumentality applicable to Float Control or any of
its properties; (b) the Restated Articles of Incorporation or the Amended and
Restated Bylaws of Float Control; (c) any agreement, instrument, arrangement or
-5-
understanding to which Float Control is a party or by which it may be bound; or
(d) any order, judgment, writ, injunction or decree of any court, arbitration
panel, or any governmental agency or instrumentality applicable to Float
Control; (ii) result in the creation or acceleration of any security interest,
claim, lien, charge or encumbrance of any kind whatsoever upon any of the assets
of Float Control; or (iii) in any way affect or violate the terms or conditions
of, or result in the cancellation, modification, revocation or suspension of,
any license, approval, certificate, permit or authorization held by Float
Control.
(h) SUBSIDIARIES. Other than the 19% interest which Float Control holds as
a general partner of Check Exchange and the 19% interest which Float Control
holds in Returns, Float Control does not own, directly or indirectly, any shares
of any corporation or any interest or investment in any partnership, business
trust or other unincorporated entity.
(i) BROKERS, FINDERS, AND OTHERS. There are no fees or commissions of any
sort whatsoever claimed by, or payable by Float Control to, any broker, finder,
intermediary or any other.
(j) EMPLOYEES. Float Control has no employees.
(k) INSURANCE. Float Control maintains no policies of insurance.
(l) CONSENTS. No consent, approval, authorization of or filing with any
governmental authority or any third party (other than the shareholders of Float
Control) is required on the part of Float Control in connection with the
execution or delivery of this Plan or the Merger Agreement or the consummation
of the transactions contemplated hereby or thereby, which has not been obtained.
(m) CONTRACTS.
(i) SCHEDULE 3.1(M) sets forth a list, identifying by dates and parties, of
all material contracts, agreements, obligations and commitments (the
"Contracts") to which Float Control is a party or by which it is bound. True
copies of all of the Contracts have been made available to AirNet. Float Control
has substantially performed all obligations required to be performed by it to
date under all of the Contracts and is not in default under any of the
Contracts, and neither Float Control nor, to the best of Float Control's
knowledge, any other party is in default under any of the Contracts.
(ii) RESTRICTIONS ON CONDUCT OF BUSINESS. Float Control is not restricted
by commitment (including, without limitation, any non-competition agreement or
-6-
covenant) from carrying on its business as carried on at the date hereof.
(n) TITLE TO THE SHARES. The Float Control Shareholders are the record
owners of, and, to the best of Float Control's knowledge, have good and
marketable title to, the Float Control Shares, free and clear of any and all
covenants, conditions, restrictions, security agreements, equities, voting trust
arrangements, liens, charges, encumbrances, options and adverse claims or rights
("Encumbrances") other than the restrictions set forth in the 1992 Shareholders'
Agreement. Upon consummation of the Merger, AirNet will acquire good and
marketable title to the all of the issued and outstanding shares of capital
stock of Float Control, of any class, free and clear of any and all
Encumbrances.
(o) INTELLECTUAL PROPERTY. SCHEDULE 3.1(O) sets forth a list of any and all
interests in any United States or foreign patent, patent application, invention
disclosure, trade secret, trademark, trademark registration, trade name,
copyright, copyright registration or application for any of the foregoing owned
or held by Float Control. To the best of Float Control's knowledge, the conduct
of business by Float Control does not conflict with or infringe upon any
patents, trademarks, trade secrets, copyrights or trade names of others. Float
Control is not aware that the conduct of any third party conflicts with or
infringes upon any patents, trademarks, trade secrets, copyrights or trade names
of Float Control.
(p) COMPLIANCE WITH LAW. No licenses, franchises, permits and
authorizations are necessary for the lawful conduct of Float Control's business.
The business of Float Control is being conducted in all material respects in
compliance with all applicable statutes, laws, ordinances, rules and regulations
of any federal, state, local or foreign governmental bodies, agencies and
subdivisions having, asserting or claiming jurisdiction over it or over any part
of its operations, and Float Control has not received any notice within three
(3) years of the date hereof asserting or alleging noncompliance with or
violation of any such statutes, laws, ordinances, rules and regulations.
(q) DISCLOSURE. No representation or warranty by Float Control contained in
this Plan, and no statement contained in any certificate or other document
(including any Schedule) furnished by Float Control to AirNet pursuant hereto
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein and herein not
misleading, in the light of the circumstances under which made.
-7-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AIRNET
4.1 In order to induce Float Control to enter into this Plan and to perform
its obligations hereunder, AirNet hereby warrants and represents to Float
Control that:
(a) CORPORATE STATUS. AirNet is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, and is in
good standing as a foreign corporation in each jurisdiction where the properties
owned, leased or operated, or the business conducted, by it require such
qualification. AirNet has the full corporate power and authority to own its
property, to carry on its business as presently conducted and to enter into and
perform the transactions contemplated in this Plan and the Merger Agreement.
(b) CORPORATE PROCEEDINGS. All corporate proceedings of AirNet necessary to
authorize the execution, delivery and performance of this Plan and the Merger
Agreement by AirNet and the consummation of the transactions contemplated hereby
and thereby, including the issuance of the AirNet Common Shares to the
shareholders of Float Control, have been duly and validly taken. This Plan has
been validly executed by a duly authorized officer of AirNet and constitutes a
valid and binding agreement of AirNet enforceable against it in accordance with
its terms. Upon delivery of the Merger Agreement by AirNet to Float Control, the
Merger Agreement will have been validly executed by duly authorized officers of
AirNet and Merger Corp. and will constitute a valid and binding agreement of
AirNet and of Merger Corp. enforceable against each of them in accordance with
its terms.
(c) LEGAL PROCEEDINGS. There are no actions, suits, proceedings, claims or
investigations threatened or pending in any court, before any governmental
agency or instrumentality or in any arbitration proceeding against, by or
affecting AirNet which would prevent the consummation of this Plan or of any of
the transactions contemplated hereby or declare the same to be unlawful or cause
the rescission thereof.
(d) NO CONFLICT. Neither the execution and delivery of this Plan and the
Merger Agreement by AirNet nor the consummation of the transactions contemplated
by this Plan or the Merger Agreement will (i) violate any provision of or result
in the breach of or default (or with notice or lapse of time would result in a
default) under: (a) any provision of any federal, state or local law,
regulation, ordinance, order, rule or administrative ruling of any governmental
authority or instrumentality applicable to AirNet or any of its properties; (b)
the Amended Articles or the Regulations of AirNet; (c) any agreement,
-8-
instrument, arrangement or understanding to which AirNet is a party or by which
it may be bound; or (d) any order, judgment, writ, injunction or decree of any
court, arbitration panel, or any governmental agency or instrumentality
applicable to AirNet; (ii) result in the creation or acceleration of any
security interest, claim, lien, charge or encumbrance of any kind whatsoever
upon any of the assets of AirNet; or (iii) in any way affect or violate the
terms or conditions of, or result in the cancellation, modification, revocation
or suspension of, any license, approval, certificate, permit or authorization
held by AirNet.
(e) FILING OF REPORTS. Since May 29, 1996, the date on which the common
shares, $0.01 par value, of AirNet became registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), AirNet has filed with the
Securities and Exchange Commission (the "SEC") all documents and reports
(including all amendments, exhibits and schedules thereto and documents
incorporated by reference therein) required to be filed by AirNet under the
Exchange Act and the Securities Act of 1933, as amended (the "1933 Act"), and
the rules and regulations promulgated by the SEC thereunder ("AirNet Reports").
The AirNet Reports, as of their respective dates (as amended through the date
hereof), did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in view of the circumstances under which they were made, not
misleading.
(f) AIRNET COMMON SHARES. The AirNet Common Shares, upon their issuance by
AirNet to the shareholders of Float Control upon consummation of the Merger,
will be duly authorized, validly issued, fully paid and non-assessable, free and
clear of any encumbrances other than the securities law restrictions described
in Section 5.4.
(g) BROKERS, FINDERS, AND OTHERS. There are no fees or commissions of any
sort whatsoever claimed by, or payable by AirNet to, any broker, finder,
intermediary or any other.
(h) CONSENTS. No consent, approval, authorization of or filing with any
governmental authority or any third party is required on the part of AirNet in
connection with the execution or delivery of this Plan or the Merger Agreement
or the consummation of the transactions contemplated hereby or thereby, which
has not been obtained.
(i) COMPLIANCE WITH LAW. The business of AirNet is being conducted in all
material respects in compliance with all applicable statutes, laws, ordinances,
rules and regulations of any federal, state, local or foreign governmental
bodies, agencies and subdivisions having, asserting or claiming jurisdiction
-9-
over it or any part of its operations, and AirNet has not received any notice
within three (3) years of the date hereof asserting or alleging noncompliance
with or violation of any such statutes, laws, ordinances, rules and regulations.
(j) DISCLOSURE. No representation or warranty by AirNet contained in this
Plan, and no statement contained in any certificate or other document (including
any Schedule) furnished by AirNet to Float Control pursuant hereto contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein and herein not misleading, in light of
the circumstances under which made.
ARTICLE V
COVENANTS OF THE PARTIES
5.1 CONDUCT OF BUSINESS OF FLOAT CONTROL. Float Control covenants with
AirNet that throughout the period from the date of this Plan to and including
the Closing:
(a) CONDUCT OF BUSINESS. Float Control's business will be conducted only in
the ordinary and usual course and in the same manner as it has previously been
conducted.
(b) CHANGES IN BUSINESS AND CAPITAL STRUCTURE. Except with the prior
express written consent of AirNet, Float Control will not: (i) sell, transfer,
mortgage, pledge or subject to any lien or otherwise encumber any of its assets;
(ii) become bound by, enter into or perform any contract, commitment or
transaction which is other than in the ordinary course of its business or which
would cause or result in its being unable to perform its obligations under this
Plan or the Merger Agreement; (iii) declare or pay any dividends or make any
distributions on its issued and outstanding capital stock; (iv) purchase,
redeem, retire or otherwise acquire any of its capital stock; (v) issue or grant
any capital stock or any option or right to acquire any of its capital stock;
(vi) amend its Restated Articles of Incorporation or Amended and Restated
Bylaws; (vii) merge or consolidate with any other corporation or otherwise
reorganize; (viii) incur any material obligation or liability other than current
liabilities and obligations incurred in the ordinary course of business; (ix)
waive or cancel any right of material value or material debts; (x) take any
action that would result in any of its representations or warranties contained
in this Plan not being true and correct; or (xi) enter into any agreement to do
any of the foregoing.
-10-
(c) PERFORMANCE OF OBLIGATIONS. Float Control will perform all of its
obligations under any and all agreements relating to or affecting its
properties, rights and business.
(d) MAINTENANCE OF BUSINESS ORGANIZATION. Float Control will maintain and
preserve its business organization intact and maintain the respective
relationships of persons having business relationships with it.
(e) ACCESS TO INFORMATION. Float Control will take all action necessary to
afford the officers and designated representatives of AirNet full access during
normal business hours to: (i) all of Float Control's properties, books, records,
tax returns and reports, financial statements, contracts and commitments, and
any work papers relating to any of the foregoing; (ii) all such documents,
copies of documents and information concerning its affairs as AirNet may
reasonably request; and (iii) Float Control's officers and directors in order
that AirNet may have full opportunity to make such investigation as it shall
desire to make of the business and affairs of Float Control. No action taken or
investigation made by or on behalf of AirNet contemplated by this Subsection
5.1(e) shall affect the representations and warranties of Float Control set
forth in this Plan.
(f) NO SHOPPING. Neither Float Control nor any of the officers,
representatives or agents of Float Control shall, directly or indirectly,
encourage or solicit or hold discussions or negotiations with, or provide any
information to, any person, entity or group (other than AirNet and its
representatives) concerning any merger, consolidation, sale of substantial
assets not in the ordinary course of business, sale of shares of capital stock
or similar transactions involving Float Control (an "Acquisition Transaction").
Float Control will promptly communicate to AirNet the terms of any proposal
which Float Control may receive in respect of any Acquisition Transaction, and
the nature and terms of any inquiry in respect of any Acquisition Transaction by
any third party of which Float Control obtains knowledge.
5.2 APPROVAL OF FLOAT CONTROL SHAREHOLDERS. Float Control will take all
steps necessary to duly call, give notice of, convene and hold a meeting of its
shareholders as soon as reasonably practicable for the purpose of securing the
approval of shareholders of this Plan and the Merger Agreement.
5.3 EXECUTION OF MERGER AGREEMENT. Float Control will enter into and use
its best efforts to consummate the Merger Agreement. AirNet will cause the
organization of Merger Corp. AirNet will enter into, and cause Merger Corp. to
enter into and execute, the Merger Agreement.
-11-
5.4 SECURITIES LAW MATTERS.
(a) AirNet and Float Control will cooperate with each other and use their
best efforts to prepare all necessary documentation, to effect all necessary
filings and to take all action required to be taken under any applicable
securities laws in connection with the issuance of the AirNet Common Shares
pursuant to Section 1.1 hereof and the Merger Agreement. AirNet shall also take
any action required to be taken in order that the AirNet Common Shares to be
issued pursuant to Section 1.1 hereof and the Merger Agreement shall, as of the
Effective Time, be listed on The Nasdaq Stock Market.
(b) Float Control understands that the AirNet Common Shares to be issued to
the shareholders of Float Control pursuant to the Merger will be issued without
registration under the 1933 Act or the securities laws of any state in reliance
upon specific exemptions therefrom. To the best knowledge of Float Control, each
shareholder of Float Control is an "accredited investor" as that term is defined
in Regulation D promulgated under the 1933 Act. Float Control understands, and
shall cause each shareholder of Float Control to be notified that, the AirNet
Common Shares to be issued pursuant to the Merger may not be sold or transferred
unless they are registered under the 1933 Act and any applicable state or other
securities laws, or unless exemptions from registration under such laws are
available. Float Control understands that AirNet shall have no obligation to
register the AirNet Common Shares under any securities laws or to maintain in
effect any registration of such AirNet Common Shares which may be made at any
time.
(c) Float Control hereby acknowledges, and shall notify each shareholder of
Float Control, that the share certificates evidencing the AirNet Common Shares
to be issued pursuant to the Merger, shall be imprinted with a legend in
substantially the following form:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR ASSIGNED EXCEPT (i) PURSUANT TO
REGISTRATIONS UNDER APPLICABLE SECURITIES LAWS OR (ii) IF, IN THE
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY, THE
PROPOSED TRANSFER MAY BE EFFECTED IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS WITHOUT REGISTRATION.
-12-
Upon the request of any shareholder of Float Control, accompanied by an
opinion of counsel selected by such shareholder, which opinion and counsel are
reasonably satisfactory to AirNet, to the effect that no transfer by such
shareholder will violate the 1933 Act or applicable state or other securities
laws, AirNet shall remove the legend from the share certificate(s) evidencing
the AirNet Common Shares held by the Float Control shareholder or shall issue to
such Float Control shareholder a new certificate for the AirNet Common Shares
without the restrictive legend.
ARTICLE VI
FURTHER OBLIGATIONS OF THE PARTIES
6.1 (a) BEST EFFORTS. Each of AirNet and Float Control shall use best
efforts to satisfy all of the conditions to the completion of the Merger and to
cause the consummation of the transactions described in this Plan, including
making all governmental applications, notices and filings and taking all steps
to secure promptly all governmental and third party consents, rulings and
approvals which are necessary or desirable for the performance by each party of
each of its obligations under this Plan and the Merger Agreement.
(b) CONFIDENTIALITY. AirNet and Float Control agree for themselves, and
their representatives, successors and assigns, that any and all nonpublic
information that each obtains from the other will be kept strictly confidential
and not be disclosed by them or their representatives, agents, successors and
assigns to any other person or group, except among their attorneys, accountants
and other representatives; except for any disclosure of such information to
which the other consents in writing or which in the opinion of counsel for the
disclosing party is required to be made under the securities laws or other
applicable laws and except for information already in the public domain not as a
result of the actions of the disclosing person or the disclosing person's
representatives.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
7.1 CONDITIONS TO OBLIGATIONS OF AIRNET. The obligations of AirNet under
this Plan and the Merger Agreement shall be subject to the satisfaction of each
of the following conditions precedent:
-13-
(a) This Plan and the Merger Agreement shall have been validly approved by
the affirmative vote of the holders of at least that number of outstanding Float
Control Shares required under law and Float Control's Restated Articles of
Incorporation and Amended and Restated Bylaws to approve such Agreements.
(b) The representations and warranties of Float Control set forth in
Article III of this Plan and the information set forth in each schedule and
other document furnished to AirNet pursuant to this Plan shall be true and
complete in all respects at the Closing Date as though such representations and
warranties and information were also made as of the Closing Date.
(c) Float Control shall have performed and complied with each and every
covenant, obligation and condition required by this Plan and the Merger
Agreement to be performed or complied with by it at or prior to the Closing.
(d) During the period from the date hereof to the Closing Date, there shall
not have been any material adverse change in or to the business of Float
Control.
(e) As of the Closing, no suit, action, investigation, inquiry or other
proceeding by or before any court or governmental body or other regulatory or
administrative agency or commission requesting or looking toward an order,
judgment or decree shall be threatened, instituted or pending which questions
the validity or legality of this Plan or the Merger Agreement or the
transactions contemplated hereby or thereby.
(f) As of the Closing, there shall not be any effective injunction, writ,
preliminary restraining order or any other order issued by a court of competent
jurisdiction directing that the transactions provided for herein or any of them
not be consummated as so provided or imposing any condition on the consummation
of any of the transactions contemplated hereby.
(g) AirNet shall have provided the required notification to The Nasdaq
Stock Market of the proposed issuance of the AirNet Common Shares to be issued
pursuant to the Merger.
(h) At the Closing, Float Control shall have delivered to AirNet a
certificate of Float Control, dated as of the Closing Date, and certifying that
(i) the representations and warranties of Float Control set forth in this Plan
are true and complete in all material respects as of the Closing Date; and (ii)
Float Control has performed all of the covenants, obligations and conditions
required to be performed by it under the Plan and the Merger Agreement on or
before the Closing Date.
-14-
(i) At the Closing, Float Control shall have delivered to AirNet copies of
all resolutions adopted by the directors and the shareholders of Float Control
adopting and approving this Plan and the Merger Agreement and authorizing the
consummation of the transactions described herein and therein, which resolutions
shall be accompanied by a certificate of the secretary of Float Control, dated
as of the Closing Date, and certifying (i) the date and manner of the adoption
of each such resolution; and (ii) that each such resolution is in full force and
effect, without amendment, as of the Closing Date.
(j) At the Closing, Float Control shall have delivered to AirNet the
original, complete minute books of Float Control containing at least the
Restated Articles of Incorporation, the Amended and Restated Bylaws and all of
the minutes and actions of the shareholders, directors and committees of
directors and share transfer and registration records of Float Control.
7.2 CONDITIONS TO OBLIGATIONS OF FLOAT CONTROL. The obligations of Float
Control under this Plan and the Merger Agreement shall be subject to
satisfaction of each of the following conditions precedent:
(a) The representations and warranties of AirNet set forth in Article IV of
this Plan and the information set forth in each schedule and other document
furnished by AirNet to Float Control shall be true and complete in all respects
at the Closing Date as though such representations and warranties and
information were also made as of the Closing Date.
(b) AirNet shall have performed and complied with each and every covenant,
obligation and condition required by this Plan and the Merger Agreement to be
performed or complied with by it at or prior to the Closing Date.
(c) During the period from the date hereof to the Closing Date, there shall
not have been any material adverse change in or to the business of AirNet.
(d) As of the Closing, no suit, action, investigation, inquiry or other
proceeding by or before any court or governmental body or other regulatory or
administrative agency or commission requesting or looking toward an order,
judgment or decree shall be threatened, instituted or pending which questions
the validity or legality of this Plan or the Merger Agreement or the
transactions contemplated hereby or thereby.
(e) As of the Closing, there shall not be any effective injunction, writ,
preliminary restraining order or any other order issued by a court of competent
jurisdiction directing that the transactions provided for herein or any of them
-15-
not be consummated as so provided or imposing any condition on the consummation
of any of the transactions contemplated hereby.
(f) At the Closing, AirNet shall have delivered to Float Control, a
certificate of the president and chief executive officer or the executive vice
president of AirNet, dated as of the Closing Date, and certifying that (i) the
representations and warranties of AirNet set forth in this Plan are true and
complete in all material respects as of the Closing Date; and (ii) AirNet has
performed all of the covenants, obligations and conditions to be performed by it
under the Plan and the Merger Agreement on or before the Closing Date.
(g) At the Closing, AirNet shall have delivered to Float Control copies of
all resolutions adopted by the directors of AirNet and the directors and sole
shareholder of Merger Corp., respectively, adopting and approving this Plan
and/or the Merger Agreement, as the case may be, and authorizing the
consummation of the transactions described herein and therein, which resolutions
shall be accompanied by a certificate of the secretary of the respective
corporations, dated as of the Closing Date, and certifying (i) the date and
manner of the adoption of each such resolution; and (ii) that each such
resolution is in full force and effect, without amendment, as of the Closing
Date.
7.3 CONDITIONS TO OBLIGATIONS OF ALL PARTIES. The obligations of Float
Control and AirNet under this Plan shall be subject to the receipt by the
parties of all governmental and third-party approvals, consents and rulings that
are necessary in order to consummate the transactions provided for in this Plan
and (i) such approvals, consents and rulings shall not be the subject of any
unresolved proceeding contesting such approval, consent or ruling maintained by
federal or state governmental authority or third party, and (ii) such approvals,
consents and rulings shall not contain any term or condition which would have a
material adverse effect on the business, operations, assets or financial
condition of AirNet or Float Control upon completion of the Merger or otherwise
materially impair the value of Float Control to AirNet.
ARTICLE VIII
SURVIVABILITY OF REPRESENTATIONS AND WARRANTIES
8.1 No representations, warranties or agreements in this Plan, or in any
document delivered pursuant to the terms hereof or in connection with the
transactions contemplated hereby, shall survive the Merger.
-16-
ARTICLE IX
TERMINATION
9.1 TERMINATION. (a) This Plan may be terminated by the mutual consent of
the parties hereto.
(b) If the Closing does not occur on or before December 31, 1996, through
no fault of the party seeking to terminate, or if a preliminary or final
injunction or temporary restraining order is issued which enjoins the
transactions contemplated herein for more than 20 days, either AirNet or Float
Control may terminate this Plan without incurring any penalty, liability or
obligation.
(c) In the event that Subsection 9.1(a) or Subsection 9.1(b) hereof is not
applicable and a party hereto shall fail or refuse to consummate the
transactions contemplated herein (other than by reason of a condition precedent
to such party's obligations failing to be satisfied) or shall take any other
action contrary to the terms of this Plan, or in the event that a party hereto
shall fail or refuse to take any action contemplated in this Plan necessary to
consummate the transactions contemplated hereby, the nondefaulting party shall
be entitled to pursue any remedy provided by law or in equity, specifically
including the remedy of specific performance, or, if such failure constitutes a
material breach of this Plan, and is not reasonably cured after notice, may
terminate this Plan and xxx for damages, costs and expenses.
ARTICLE X
MISCELLANEOUS
10.1 All notices, requests, demands and other communications required or
permitted to be given under this Plan shall be given in writing and shall be
deemed to have been given if delivered by hand, by express service or sent by
certified mail, postage prepaid, to the following addresses:
IF TO FLOAT CONTROL, TO:
Xxxxxx X. Xxxxxx
President
Float Control, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
-17-
IF TO AIRNET, TO:
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
AirNet Systems, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Either party to this Plan may, by notice given in accordance with this Section
10.1, designate a new address for notices, requests, demands and other
communications to such party.
10.2 This Plan may be executed in one or more counterparts, each of which
shall be deemed to be a duplicate original, but all of which taken together
shall be deemed to constitute a single instrument.
10.3 This Plan (including each Exhibit and Schedule provided pursuant
hereto) constitutes the entire agreement between the parties hereto in respect
of the subject matter of this Plan (including each Exhibit and Schedule) and
supersedes all prior and contemporaneous agreements between the parties hereto
in connection with the subject matter of this Plan. This Plan shall not be
amended except in a writing signed by Float Control and AirNet.
10.4 This Plan shall inure to the benefit of and be binding upon the
respective successors and assigns (including successive, as well as immediate,
successors and assigns) of the parties hereto. This Plan may not be assigned by
either party hereto without the prior written consent of the other party hereto.
10.5 The captions contained in this Plan are included only for convenience
of reference and do not define, limit, explain or modify this Plan or its
interpretation, construction or meaning and are in no way to be construed as
part of this Plan. When used in this Agreement, the number and gender of each
pronoun shall be construed to be such number and gender as the context,
circumstances or its antecedent may require.
10.6 This Plan shall be governed by and construed in accordance with the
laws of the State of Ohio, without giving effect to principles of conflicts or
choice of laws.
10.7 Except as otherwise agreed in writing, each party hereto shall pay all
costs and expenses, including legal and accounting fees, and all expenses
relating to its performance of, and compliance with, such party's undertakings
in this Plan.
10.8 Nothing herein expressed or implied is intended or shall be construed
to confer upon or give to any person or entity other than the parties hereto and
-18-
their successors or permitted assigns, any rights or remedies under or by reason
of this Plan.
IN WITNESS WHEREOF, this Plan and Agreement of Reorganization has been
executed on behalf of Float Control and AirNet to be effective as of the date
set forth in the first paragraph above.
FLOAT CONTROL: AIRNET:
FLOAT CONTROL, INC. AIRNET SYSTEMS, INC.
By: Xxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxx
______________________________ ______________________________
Xxxxxx X. Xxxxxx, its Xxxxxx X. Xxxxxx, its
President President and Chief
Executive Officer
-19-
LIST OF EXHIBITS
EXHIBIT SECTION OF
LETTER EXHIBIT DESCRIPTION AGREEMENT
------- ------------------- ----------
A Plan and Agreement of Merger 1.1
LIST OF SCHEDULES
SCHEDULE NO./SECTION NO. DESCRIPTION OF SCHEDULE
------------------------ -----------------------
3.1(a)(1) Jurisdictions in Which Float Control
Is Qualified to Transact Business
3.1(a)(2) Restated Articles of Incorporation
and Amended and Restated Bylaws of
Float Control
3.1(m) Contracts
3.1(o) Intellectual Property
-20-
