EXHIBIT 3.3
AGREEMENT OF MERGER
This Agreement of Merger (the "AGREEMENT") is made and entered into as
of February 12, 2003 by and among Ponte Nossa Acquisition Corp., a Delaware
corporation ("PURCHASER"), VisiJet, Inc., a California corporation (the
"COMPANY") and VisiJet Acquisition Corporation, a California corporation and a
wholly-owned subsidiary of Purchaser ("MERGER SUB" and, together with the
Company, the "CONSTITUENT CORPORATIONS").
RECITALS
A. Purchaser, Company and Merger Sub have entered into that certain
Second Amended and Restated Agreement and Plan of Merger dated as of December
20, 2002, as amended on January 15, 2002 (the "PLAN OF MERGER") providing for,
among other things, the execution and filing of this Agreement and the merger of
Merger Sub with and into the Company upon the terms set forth in the Plan of
Merger and this Agreement (the "MERGER"). Terms used, but not defined, herein
shall have the meanings set forth in the Plan of Merger.
B. The respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations and their respective shareholders that Merger Sub be merged with
and into the Company and have approved this Agreement and the Merger.
C. The Plan of Merger, this Agreement and the Merger have been approved
by the shareholders of the Company and by the sole shareholder of Merger Sub.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, each of the Constituent Corporations hereby agrees that Merger
Sub shall be merged with and into the Company in accordance with the Plan of
Merger and the provisions of the laws of the State of California, upon the terms
and subject to the conditions set forth as follows:
ARTICLE I
THE CONSTITUENT CORPORATIONS
1.1 THE COMPANY. The Company is a corporation duly organized and
existing under the laws of the State of California.
1.2 MERGER SUB. Merger Sub is a corporation duly organized and existing
under the laws of the State of California.
ARTICLE II
THE MERGER
2.1 THE MERGER. At the Effective Time (as defined in Section 2.2 below)
and subject to the provisions of this Agreement and in accordance with the
applicable provisions of the Corporations Code of the State of California
("CALIFORNIA LAW"), Merger Sub shall be merged with and into the Company, the
separate corporate existence of Merger Sub shall cease and the Company shall
continue as the surviving corporation and as a wholly-owned subsidiary of
Purchaser. The surviving corporation after the Merger is hereinafter sometimes
referred to as the "SURVIVING CORPORATION."
2.2 FILING AND EFFECTIVENESS. This Agreement, together with the
officers' certificates of each of the Constituent Corporations required by
California Law (the "OFFICERS' CERTIFICATES"), shall be filed with the Secretary
of State of the State of California at the time specified in the Plan of Merger.
The Merger shall become effective upon the filing of this Agreement and the
Officers' Certificates with, and acceptance by, the Secretary of State of the
State of California (the "EFFECTIVE TIME").
2.3 EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of California Law and
this Agreement. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the property, rights, privileges, powers and
franchises of Merger Sub and the Company shall vest in the Surviving
Corporation, and all debts, liabilities and duties of Merger Sub and the Company
shall become the debts, liabilities and duties of the Surviving Corporation.
2.4 ARTICLES OF INCORPORATION. At the Effective Time, the Articles of
Incorporation of the Company shall be amended and restated to read as set forth
in EXHIBIT A attached hereto.
2.5 DIRECTORS AND OFFICERS.
(a) The directors of Surviving Corporation shall be Xx.
Xxxxxxx Xxxxxx, Xxxx Xxxxx and Xxxxxx Xxxxxxx, each to serve until their
respective successors are duly elected or appointed.
(b) The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving Corporation immediately
after the Effective Time, each to hold office until their respective successors
are duly elected or appointed.
2.6 CONVERSION OF COMPANY STOCK.
(a) CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
"CLOSING DATE" means the date on which the closing of the
transactions contemplated by this Agreement takes place.
"COMPANY CAPITAL STOCK" means the capital stock of the
Company.
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"COMPANY COMMON STOCK" means the Common Stock, without par
value, of the Company.
"DISSENTING SHARE" means any share of Company Common Stock
held of record by any stockholder who has duly exercised appraisal rights under
California Law.
"NEW INVESTOR AGREEMENT" means the VisiJet, Inc. Common Stock
and Warrant Purchase Agreement, dated as of November 26, 2002, by and between
VisiJet and the New Investors and attached as Exhibit B to the Plan of Merger.
"NEW INVESTORS" means the purchasers identified on the
Schedule of Purchasers attached as Exhibit A to the New Investor Agreement.
"NEW INVESTORS WARRANT" means the warrants to purchase
4,528,481 shares of Company Common Stock issuable pursuant to the terms and
conditions of the New Investor Agreement.
"PRIOR VISIJET SHAREHOLDERS" means the holders of the VisiJet
Common Stock and VisiJet Preferred Stock outstanding immediately prior to the
closing of the New Investor Agreement.
"PRIOR VISIJET SHAREHOLDERS WARRANTS" means warrants to
purchase an aggregate of 1,720,000 shares of VisiJet Common Stock to be issued
to the Prior VisiJet Shareholders.
"PURCHASER COMMON STOCK" means the Common Stock, $.001 par
value per share, of Purchaser.
(b) CONVERSION OF COMPANY COMMON STOCK. At the Effective Time,
each one (1) share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (other than shares to be canceled pursuant to
Section 2.7(c) hereof and any Dissenting Shares (to the extent provided in
Section 2.11 hereof)) shall be canceled and converted automatically into the
right to receive, upon surrender of the certificate representing such shares of
Company Common Stock in the manner provided in and subject to Section 2.8
hereof, one (1) share ( the "CONVERSION RATIO") of Purchaser Common Stock (the
"MERGER CONSIDERATION").
(c) ASSUMPTION OF WARRANTS. At the Effective Time, any
outstanding New Investors Warrant or Prior VisiJet Shareholders Warrant, without
any further action by the holder thereof, (i) will be assumed by Purchaser in
connection with the Merger, (ii) shall continue to have, and be subject to, the
same terms and conditions as were applicable to such warrant immediately prior
to the Effective Time (including, but not limited to, any repurchase rights or
vesting provisions), and, (iii) consistent with, and based on the Conversion
Ratio, (A) any such warrant shall be exercisable for the same number of shares
of Purchaser Common Stock as the number of shares of Company Common Stock
underlying such warrant immediately prior to the Effective Time, and (B) the per
share exercise price for the shares of Purchaser Common Stock issuable upon
exercise of such assumed warrant shall equal the per share exercise price for
the shares of Company Common Stock underlying such warrant immediately prior to
the Effective Time.
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(d) CANCELLATION OF COMPANY COMMON STOCK OWNED BY PURCHASER.
At the Effective Time, each share of Company Common Stock owned by Purchaser or
any direct or indirect wholly owned subsidiary of Purchaser immediately prior to
the Effective Time shall be canceled and extinguished without any conversion
thereof.
(e) COMMON STOCK OF MERGER SUB. At the Effective Time, each
share of Common Stock of Merger Sub issued and outstanding immediately prior to
the Effective Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of Common Stock of the Surviving Corporation.
Each stock certificate of Merger Sub evidencing ownership of any such shares
shall continue to evidence ownership of such shares of capital stock of the
Surviving Corporation.
(f) ADJUSTMENTS TO CONVERSION RATIOS. The Conversion Ratio
shall be adjusted to reflect fully the effect of any stock split, reverse split,
stock dividend (including any dividend or distribution of securities convertible
into Purchaser Common Stock or Company Capital Stock), reorganization,
recapitalization or other like change with respect to Purchaser Common Stock or
Company Capital Stock occurring after the date hereof and prior to the Effective
Time.
2.7 PROCEDURE FOR PAYMENT.
(a) Immediately after the Effective Time, (A) Purchaser will
furnish to Nevada Agency & Trust Company, #00000 Xxxx Xxxxxxx, Xxxxx 000, Xxxx,
Xxxxxx 00000 (the "EXCHANGE AGENT") a stock certificate (issued in the name of
the Exchange Agent or its nominee) representing that number of shares of
Purchaser Common Stock equal to the product of (I) the Conversion Ratio TIMES
(II) the number of outstanding shares of Company Common Stock (other than any
Dissenting Shares and shares owned by Purchaser) and (B) Purchaser will cause
the Exchange Agent to mail a letter of transmittal (with instructions for its
use) to each record holder of outstanding shares of Company Common Stock for the
holder to use in surrendering the certificates which represented his or its
shares of Company Common Stock (the "CERTIFICATES") in exchange for a
certificate representing the number of shares of Purchaser Common Stock to which
he or it is entitled.
(b) Purchaser will not pay any dividend or make any
distribution on shares of Purchaser Common Stock (with a record date at or after
the Effective Time) to any record holder of outstanding shares of Company Common
Stock until the holder surrenders for exchange his or its certificates which
represented shares of Company Common Stock. Purchaser instead will pay the
dividend or make the distribution to the Exchange Agent in trust for the benefit
of the holder pending surrender and exchange.
(c) Purchaser may cause the Exchange Agent to return any
shares of Purchaser Common Stock and dividends and distributions thereon
remaining unclaimed 180 days after the Effective Time, and thereafter each
remaining record holder of outstanding shares of Company Common Stock shall be
entitled to look to Purchaser (subject to abandoned property, escheat, and other
similar laws) as a general creditor thereof with respect to shares of Purchaser
Common Stock and dividends and distributions thereon to which he or it is
entitled upon surrender of his or its certificates.
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(d) The Company shall pay all charges and expenses of the
Exchange Agent.
(e) After the close of business on the Closing Date, transfers
of shares of Company Common Stock outstanding prior to the Effective Time shall
not be made on the stock transfer books of the Surviving Corporation.
(f) The provisions of this Section 2.8 shall also apply to
Dissenting Shares (defined in Section 2.11) that lose their status as such,
except that the obligations of Purchaser under this Section 2.8 shall commence
on the date of loss of such status and the holder of such shares shall be
entitled to receive in exchange for such shares the Merger Consideration to
which such holder is entitled pursuant to Section 2.7 hereof.
2.8 NO FURTHER OWNERSHIP RIGHTS IN SHARES OF COMPANY COMMON STOCK. The
shares of Purchaser Common Stock delivered upon the surrender for exchange of
shares of Company Common Stock in accordance with the terms hereof (including
any dividends, distributions or cash paid in lieu of fractional shares) shall be
deemed to have been issued in full satisfaction of all rights pertaining to such
shares of Company Common Stock, and there shall be no further registration of
transfers on the records of the Surviving Corporation of shares of Company
Common Stock which were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled and exchanged as provided in
this Section 2.
2.9 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, such Merger
Consideration (and dividends, distributions and cash in lieu of fractional
shares) as may be required pursuant to Section 2.7; provided, however, that
Purchaser may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed Certificates to
deliver a bond in such sum as it may reasonably direct and will indemnify it
against any claim that may be made against Purchaser, the Surviving Corporation
and/or the Exchange Agent with respect to the Certificates alleged to have been
lost stolen or destroyed.
2.10 DISSENTERS' RIGHTS. Dissenting Shares, if any, shall not be
converted into shares of Purchaser Common Stock but shall instead be converted
into the right to receive such consideration as may be determined to be due with
respect to such Dissenting Shares pursuant to California Law. The Company shall
give Purchaser prompt notice of any demand received by the Company to require
the Company to purchase shares of Company Common Stock, and Purchaser shall have
the right to direct (in consultation with the Company prior to the Closing Date)
and to participate in all negotiations and proceedings with respect to such
demand. The Company agrees that, except with the prior written consent of
Purchaser, which Purchaser shall not unreasonably withhold or delay, or as
required under California Law, it will not voluntarily make any payment with
respect to, or settle or offer to settle, any such purchase demand. Each holder
of Dissenting Shares ("DISSENTING SHAREHOLDER") who, pursuant to the provisions
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of California Law, becomes entitled to payment of the fair value for shares of
Company Common Stock shall receive payment therefor (but only after the value
therefor shall have been agreed upon or finally determined pursuant to such
provisions). If, after the Effective Time, any Dissenting Shares shall lose
their status as Dissenting Shares, Purchaser shall issue and deliver, upon
surrender by such shareholder of a certificate or certificates representing
shares of Company Common Stock, the Merger Consideration to which such
shareholder would otherwise be entitled under this Agreement.
2.11 TAKING OF NECESSARY ACTION; FURTHER ACTION. Each of Purchaser,
Merger Sub and the Company will take all such reasonable and lawful action as
may be necessary or desirable in order to effectuate the Merger in accordance
with this Agreement as promptly as possible. If, at any time after the Effective
Time, any further action is necessary or desirable to carry out the purposes of
this Agreement and to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
the Company and Merger Sub, the officers and directors of the Company and Merger
Sub are fully authorized in the name of their respective corporations or
otherwise to take, and will take, all such lawful and necessary action, so long
as such action is not inconsistent with this Agreement.
ARTICLE III
MISCELLANEOUS
3.1 PURCHASER STOCKHOLDER APPROVAL. No approval by the stockholders of
Purchaser is required as a condition to the effectiveness of the Merger, except
that such stockholders must approve an increase in the Purchaser's authorized
common stock pursuant to an amendment to the Purchaser's Certificate of
Amendment as a condition of closing of the Merger.
3.2 GOVERNING LAW. It is the intention of the parties hereto that the
internal laws of the State of California (irrespective of its choice of law
principles) shall govern the validity of this Agreement, the construction of its
terms, and the interpretation and enforcement of the rights and duties of the
parties hereto.
3.3 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless
otherwise provided in, this Agreement, each and all of the covenants, terms,
provisions, and agreements contained herein shall be binding upon, and inure to
the benefit of, the permitted successors, executors, heirs, representatives,
administrators and assigns of the parties hereto.
3.4 AMENDMENTS. This Agreement cannot be amended or changed except in
writing, signed by the parties.
3.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PONTE NOSSA ACQUISITION CORP.
By: /S/ XXXXXX X. XXXXXX
----------------------------
Name: Xxxxxx X. XxXxxx
Title: President
By: /S/ XXXXXXXX X. XXXXXXXXX
----------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Secretary
VISIJET, INC.
By: /S/ XXXXX XXXXXXX
----------------------------
Name: Xxxxx Xxxxxxx
Title: President
By: /S/ XXXXXXX XXXXXXX
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Secretary
VISIJET ACQUISITION CORPORATION
By: /S/ XXXXXX XXXXXX
----------------------------
Name: Xxxxxx XxXxxx
Title: President
By: /S/ XXXXXXXX X. XXXXXXXXX
----------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Secretary
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EXHIBIT A
---------
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
VISIJET, INC.
ARTICLE I
NAME
----
The name of the corporation is VisiJet, Inc.
ARTICLE II
PURPOSES
--------
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
DIRECTORS' LIABILITY
--------------------
The liability of the directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
ARTICLE IV
STOCK
-----
The Corporation is authorized to issue one class of capital stock,
designated as "Common Stock." The number of shares of Common Stock authorized to
be issued is 1,000.
ARTICLE V
INDEMNIFICATION OF AGENTS
-------------------------
The Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits set forth in Section 204 of the California Corporations Code with respect
to actions for breach of duty to the corporation and its shareholders.
VISIJET, INC.
OFFICERS' CERTIFICATE OF APPROVAL OF MERGER
The undersigned, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, do hereby certify
that:
1. They are the President and Secretary, respectively, of VisiJet,
Inc., a California corporation ("THE COMPANY").
2. The principal terms of the Agreement of Merger in the form attached
to this Certificate providing for the merger (the "MERGER") of VisiJet
Acquisition Corporation, a California corporation, with and into the Company,
were duly approved by the Board of Directors and shareholders of the Company.
3. At the time of approval, the authorized capital stock of the Company
consisted of 10,000,000 shares of Common Stock, of which 7,773,470 shares were
issued and outstanding and were entitled to vote, and 5,000,000 shares of
Preferred Stock, of which 140,306 shares of Series A Preferred Stock and 363,945
shares of Series B Preferred Stock were issued and outstanding, all of which
were entitled to vote. The votes of more than fifty percent (50%) of each of the
outstanding shares of Common Stock of the Company, the outstanding shares of
Series A Preferred Stock of the Company and the outstanding shares of Series B
Preferred Stock of the Company were required to approve the Merger and the
principal terms of the Agreement of Merger.
4. The principal terms of the Agreement of Merger were approved by the
consent of the holders of more than fifty percent (50%) of each of the
outstanding shares of Common Stock of the Company entitled to vote, the
outstanding shares of Series A Preferred Stock of the Company entitled to vote
and the outstanding shares of Series B Preferred Stock entitled to vote, which
vote exceeded the vote required.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as
of February 2, 2003.
Signature: /S/ XXXXX XXXXXXX
-------------------
Name: Xxxxx Xxxxxxx
Title: President
Signature: /S/ XXXXXXX XXXXXXX
-------------------
Name: Xxxxxxx Xxxxxxx
Title: Secretary
VISIJET ACQUISITION CORPORATION
OFFICERS' CERTIFICATE OF APPROVAL OF MERGER
The undersigned, Xxxxxx XxXxxx and Xxxxxxxx X. Xxxxxxxxx, do hereby
certify that:
1. They are the President and Secretary, respectively, of VisiJet
Acquisition Corporation, a California corporation ("MERGER SUB").
2. The principal terms of the Agreement of Merger in the form attached
to this Certificate providing for the merger (the "MERGER") of Merger Sub with
and into VisiJet, Inc., a California corporation, was duly approved by the Board
of Directors and by the sole shareholder of Merger Sub.
3. The authorized capital stock of Merger Sub consists of 1,000 shares
of Common Stock. There are 1,000 shares of Merger Sub Common Stock issued and
outstanding, all of which were entitled to vote upon the Merger. A vote of more
than fifty percent (50%) of the outstanding shares of Common Stock of the Merger
Sub was required to approve the Merger. No vote of the shareholders of Ponte
Nossa was required.
4. The principal terms of the Agreement of Merger were approved by the
consent of Merger Sub's sole shareholder, Ponte Nossa Acquisition Corp. (the
"Parent"), holding 100% of the issued and outstanding shares of Common Stock of
Merger Sub, which vote exceeded the vote required. No vote of the shareholders
of Parent was required.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as
of February 2, 2003.
Signature: /S/ XXXXXX XXXXXX
-------------------------
Name: Xxxxxx XxXxxx
Title: President
Signature: /S/ XXXXXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Secretary
