Exhibit 2(b)
Plan and Agreement of Merger,
dated September 30, 1996,
among AirNet Systems, Inc.,
AirNet Merger Corporation
and Float Control, Inc.
________________________
PLAN AND AGREEMENT OF MERGER
This PLAN AND AGREEMENT OF MERGER (sometimes hereinafter called the "MERGER
AGREEMENT"), made to be effective as of September 30, 1996, by and among FLOAT
CONTROL, INC., a Michigan corporation (sometimes hereinafter called "FLOAT
CONTROL"); AIRNET MERGER CORPORATION, an Ohio corporation (sometimes hereinafter
called "MERGER CORP.") (MERGER CORP. and FLOAT CONTROL sometimes hereinafter
collectively referred to as the "CONSTITUENT CORPORATIONS"); and AIRNET SYSTEMS,
INC., an Ohio corporation (sometimes hereinafter called "AIRNET");
W I T N E S S E T H :
WHEREAS, the authorized shares of FLOAT CONTROL consist of 50,000 common
shares, $1.00 par value per share (the "FLOAT CONTROL SHARES"), which are voting
shares. There are 3,000 FLOAT CONTROL SHARES issued and outstanding; and
WHEREAS, the authorized shares of MERGER CORP. consist of 850 common
shares, without par value (the "MERGER CORP. SHARES"), which are voting shares.
There are 500 MERGER CORP. SHARES issued and outstanding; and
WHEREAS, the Board of Directors of each of the CONSTITUENT CORPORATIONS and
of AIRNET deem it advisable and in the best interests of their respective
corporations and their shareholders that the CONSTITUENT CORPORATIONS be merged
in a transaction through which FLOAT CONTROL would become a wholly-owned
subsidiary of AIRNET, MERGER CORP. would cease to have a separate corporate
existence, and persons presently holding FLOAT CONTROL SHARES would receive
AIRNET common shares in exchange therefor; and
WHEREAS, the Boards of Directors of the CONSTITUENT CORPORATIONS and of
AIRNET have, by resolutions duly adopted by them, approved this MERGER AGREEMENT
and directed that it be executed by the undersigned officers and submitted to a
vote of the shareholders of FLOAT CONTROL and the sole shareholder of MERGER
CORP.;
NOW, THEREFORE, in consideration of the premises and of their mutual
covenants and agreements, it is hereby agreed by and among the CONSTITUENT
CORPORATIONS and AIRNET that the terms of the merger contemplated by this MERGER
AGREEMENT (sometimes hereinafter called the "MERGER") and the mode of carrying
the MERGER into effect shall be as follows:
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ARTICLE ONE
THE SURVIVING CORPORATION
SECTION 1.01. At the date and time when the MERGER shall become effective
(sometimes hereinafter called the "MERGER TIME"), MERGER CORP. will merge into
FLOAT CONTROL and FLOAT CONTROL will be the continuing and surviving corporation
in the MERGER, will continue to exist under the laws of the State of Michigan,
and will be the only one of the CONSTITUENT CORPORATIONS to continue its
separate corporate existence after the MERGER TIME. As used in this MERGER
AGREEMENT, the term "SURVIVING CORPORATION" refers to FLOAT CONTROL as the
surviving corporation at and after the MERGER TIME.
SECTION 1.02. The name of the SURVIVING CORPORATION shall be FLOAT CONTROL,
INC.
SECTION 1.03. The Restated Articles of Incorporation of FLOAT CONTROL, as
in effect immediately prior to the MERGER TIME, shall be the articles of
incorporation of the SURVIVING CORPORATION until amended in accordance with law.
SECTION 1.04. The Amended and Restated Bylaws of FLOAT CONTROL, as in
effect immediately prior to the MERGER TIME, shall be the bylaws of the
SURVIVING CORPORATION until amended in accordance with law.
SECTION 1.05. At and after the MERGER TIME, the number of directors of the
SURVIVING CORPORATION shall be three (3) until changed in accordance with the
bylaws of the SURVIVING CORPORATION. The individuals listed below shall serve as
the directors of the SURVIVING CORPORATION until the next annual meeting of the
SURVIVING CORPORATION, or until their earlier resignation, removal from office
or death:
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
SECTION 1.06. At and after the MERGER TIME and until changed in accordance
with law, the officers of the SURVIVING CORPORATION shall be as follows:
Xxxxxx X. Xxxxxx -- President
Xxxxxxx X. Xxxxxxx -- Secretary
Xxxxx X. Xxxxxx -- Treasurer
SECTION 1.07. The office of the SURVIVING CORPORATION shall be located at
0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000. The registered office of the
SURVIVING CORPORATION in the state of Michigan shall be located at 00000
Xxxxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 and the registered agent of the
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SURVIVING CORPORATION in the State of Michigan shall be The Corporation Company.
SECTION 1.08. The SURVIVING CORPORATION hereby consents to be sued and
served with process in the State of Ohio in any proceeding in the State of Ohio
to enforce against the SURVIVING CORPORATION any obligation of either of the
CONSTITUENT CORPORATIONS or to enforce the rights of a dissenting shareholder of
either of the CONSTITUENT CORPORATIONS, and the SURVIVING CORPORATION hereby
irrevocably appoints the Ohio Secretary of State as its agent to accept service
of process in any such proceeding in the State of Ohio.
SECTION 1.09. It is desired that the SURVIVING CORPORATION transact
business in the State of Ohio as a foreign corporation. The SURVIVING
CORPORATION hereby constitutes and appoints as the statutory agent of the
SURVIVING CORPORATION upon whom process against the SURVIVING CORPORATION may be
served within the State of Ohio, Statutory Agent Corporation, which has the
following business address:
Attn: Librarian
00 Xxxx Xxx Xxxxxx
Xxxxxx xx Xxxxxxxx
Xxxxxxxx, XX 00000
The SURVIVING CORPORATION hereby consents irrevocably to service of process
on Statutory Agent Corporation and its successors so long as the authority of
such agent shall continue as provided by Chapter 1703 of the Ohio Revised Code
and to service of process from any court in the State of Ohio or from any public
authorities upon the Ohio Secretary of State if Statutory Agent Corporation
cannot be found, if the license of the SURVIVING CORPORATION to do business in
the State of Ohio has expired or has been cancelled, or in any of the other
events whereby such service upon the Ohio Secretary of State is authorized by
Chapter 1703 of the Ohio Revised Code.
ARTICLE TWO
DISTRIBUTIONS TO SHAREHOLDERS
SECTION 2.01. The manner and basis of making distributions to shareholders
of the CONSTITUENT CORPORATIONS in extinguishment of and in substitution for
their shares of the CONSTITUENT CORPORATIONS shall be as set forth in this
ARTICLE TWO.
SECTION 2.02. At the MERGER TIME and as a result of the MERGER, each of the
3,000 issued and outstanding FLOAT CONTROL SHARES shall, automatically and
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without further act of either of the CONSTITUENT CORPORATIONS, of AIRNET or of
the holder thereof, be extinguished. In substitution therefor, the holders of
the 3,000 FLOAT CONTROL SHARES so extinguished shall be entitled to receive from
AIRNET an aggregate of 230,299 common shares, $0.01 par value per share, of
AIRNET (the "AIRNET COMMON SHARES"). The holder of each of the 3,000 issued and
outstanding FLOAT CONTROL SHARES so extinguished shall be entitled to receive
from AIRNET in substitution therefor 76.7677 AIRNET COMMON SHARES.
SECTION 2.03. At the MERGER TIME and as a result of the MERGER, each of the
500 issued and outstanding MERGER CORP. SHARES shall, automatically and without
further act of the CONSTITUENT CORPORATIONS, of AIRNET or the holder thereof, be
extinguished. In substitution for the full number of MERGER CORP. SHARES
formerly held by it, AIRNET shall be entitled to receive from the SURVIVING
CORPORATION 500 common shares, $1.00 par value per share; and AIRNET shall
forthwith be entered on the books of the SURVIVING CORPORATION as the holder of
said 500 common shares of the SURVIVING CORPORATION. Promptly after the MERGER
TIME, the SURVIVING CORPORATION shall deliver to AIRNET one or more certificates
evidencing 500 of the outstanding common shares of the SURVIVING CORPORATION.
After the MERGER TIME and until such certificates have been received by AIRNET
from the SURVIVING CORPORATION, each certificate theretofore representing one or
more of the MERGER CORP. SHARES shall, in the aggregate, be deemed for all
corporate purposes to evidence ownership of 500 of the issued and outstanding
common shares, $1.00 par value per share, of the SURVIVING CORPORATION.
SECTION 2.04. (a) As soon as practicable after the MERGER TIME, AIRNET
shall mail to each holder of record of FLOAT CONTROL SHARES a mutually agreed
upon form letter of transmittal and instructions for use in effecting the
surrender of the certificate or certificates which, immediately prior to the
MERGER TIME, represented outstanding FLOAT CONTROL SHARES (each, a "FLOAT
CONTROL CERTIFICATE"). The form letter of transmittal shall provide instructions
for use in effecting the surrender of the FLOAT CONTROL CERTIFICATES in exchange
for certificates representing AIRNET COMMON SHARES ("AIRNET CERTIFICATES") as
provided in Section 2.02 hereof. Upon surrender of a FLOAT CONTROL CERTIFICATE
for cancellation, together with such letter of transmittal duly executed, the
holder of such FLOAT CONTROL CERTIFICATE shall receive in exchange therefor a
certificate evidencing the applicable number of AIRNET COMMON SHARES to which
such holder is entitled in accordance with Section 2.02 of this MERGER AGREEMENT
and the FLOAT CONTROL CERTIFICATE so surrendered shall thereafter be cancelled.
(b) The registered holder of any FLOAT CONTROL CERTIFICATE outstanding
immediately prior to the MERGER TIME, as such holder appears in the books and
records of FLOAT CONTROL or its transfer agent immediately prior to the MERGER
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TIME, shall, until such FLOAT CONTROL CERTIFICATE is surrendered in exchange for
an AIRNET CERTIFICATE as contemplated by Section 2.04(a), have and be entitled
to exercise any voting and other rights with respect to, and to receive any
dividends or other distributions on, the AIRNET COMMON SHARES into which the
FLOAT CONTROL SHARES represented by any FLOAT CONTROL CERTIFICATE have been
converted pursuant to Section 2.02 of this MERGER AGREEMENT.
(c) In the event that any holder of FLOAT CONTROL SHARES is unable to
deliver the FLOAT CONTROL CERTIFICATE which represents FLOAT CONTROL SHARES of
the holder, AIRNET, in the absence of actual knowledge that any FLOAT CONTROL
SHARES theretofore represented by any such FLOAT CONTROL CERTIFICATE have been
acquired by a bona fide purchaser, shall deliver to such holder the
consideration to which such holder is entitled in accordance with the provisions
of this MERGER AGREEMENT upon the presentation of all of the following:
(i) An affidavit or other evidence to the reasonable satisfaction of
AIRNET that any such FLOAT CONTROL CERTIFICATE has been lost,
wrongfully taken or destroyed;
(ii) Such security or indemnity as may be reasonably requested by
AIRNET to indemnify and hold AIRNET harmless; and
(iii) Evidence to the satisfaction of AIRNET that such person is the
owner of the FLOAT CONTROL SHARES theretofore represented by each
FLOAT CONTROL CERTIFICATE claimed by him to be lost, wrongfully
taken or destroyed and that he is the person who would be
entitled to present each such FLOAT CONTROL CERTIFICATE for
exchange pursuant to this MERGER AGREEMENT.
SECTION 2.05. Notwithstanding any other provision of this MERGER AGREEMENT,
no fractional AIRNET COMMON SHARES shall be issued in the MERGER to holders of
FLOAT CONTROL SHARES. Each holder of FLOAT CONTROL SHARES who otherwise would
have been entitled to a fraction of an AIRNET COMMON SHARE shall receive in lieu
thereof, at the time of surrender of the FLOAT CONTROL CERTIFICATE(s) evidencing
such holder's FLOAT CONTROL SHARES, an amount of cash (without interest)
determined by multiplying the fractional share interest to which such holder
would otherwise be entitled by $12.375.
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ARTICLE THREE
APPROVAL; TERMINATION AND ABANDONMENT; AMENDMENT
SECTION 3.01. This MERGER AGREEMENT shall be submitted for approval by the
shareholders of FLOAT CONTROL and by the sole shareholder of MERGER CORP.
SECTION 3.02. The MERGER shall be terminated and abandoned at any time
prior to the MERGER TIME without notice of such action to the CONSTITUENT
CORPORATIONS or to AIRNET if the Plan and Agreement of Reorganization, dated
September 30, 1996 (the "PLAN") between AIRNET and FLOAT CONTROL is terminated.
SECTION 3.03. From time to time and at any time prior to the MERGER TIME,
this MERGER AGREEMENT may be amended only by an agreement in writing executed in
the same manner as this MERGER AGREEMENT, after authorization of such action by
the Board of Directors of the CONSTITUENT CORPORATIONS and of AIRNET; except
that after the approval contemplated by Section 3.01 hereof, there shall be no
amendments that would (a) alter or change the amount or kind of shares,
evidences of indebtedness other securities, cash, rights or any other property
to be received by the holders of any class or series of shares of either of the
CONSTITUENT CORPORATIONS in the MERGER, (b) alter or change any terms of the
articles of incorporation or bylaws of the SURVIVING CORPORATION, or (c) alter
or change any of the terms and conditions of this MERGER AGREEMENT if any of the
alterations or changes, alone or in the aggregate, would adversely affect the
holders of any class or series of shares of the CONSTITUENT CORPORATIONS.
ARTICLE FOUR
EFFECTIVE DATE OF MERGER
SECTION 4.01. (a) Upon the approval of this MERGER AGREEMENT by the
shareholders of each of the CONSTITUENT CORPORATIONS, each of the CONSTITUENT
CORPORATIONS shall cause a Certificate of Merger (in the form required by
Section 450.1707 of the Michigan Business Corporation Act) to be executed and
filed with the Michigan Department of Commerce (the "Michigan Department").
(b) After the filing of the Certificate of Merger described in Section
4.01(a) with the Michigan Department, each of the CONSTITUENT CORPORATIONS shall
cause a Certificate of Merger (in the form required by Section 1701.81 of the
Ohio Revised Code) to be executed and filed with the Secretary of State of the
State of Ohio (the "Ohio Secretary").
(c) The MERGER shall become effective on the date and at the time of filing
of the Certificate of Merger described in Section 4.01(b) with the Ohio
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Secretary in accordance with Section 1701.81 of the Ohio Revised Code (or such
later date and time as may be specified in the Certificates of Merger described
in Sections 4.01(a) and 4.01(b)).
ARTICLE FIVE
ADDITIONAL PROVISIONS
SECTION 5.01. All assets of the CONSTITUENT CORPORATIONS as they exist at
the MERGER TIME, shall pass to and vest in the SURVIVING CORPORATION without any
conveyance or other transfer. The SURVIVING CORPORATION shall be responsible for
all of the liabilities of every kind and description of each of the CONSTITUENT
CORPORATIONS existing as of the MERGER TIME.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.01. This MERGER AGREEMENT 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.
SECTION 6.02. The captions contained in this MERGER AGREEMENT are included
only for convenience of reference and do not define, limit, explain or modify
this MERGER AGREEMENT or its interpretation, construction or meaning and are in
no way to be construed as part of this MERGER AGREEMENT.
SECTION 6.03. This MERGER AGREEMENT 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.
SECTION 6.04. The number and gender of each pronoun used in this MERGER
AGREEMENT shall be construed to mean such number and gender as the context,
circumstances or its antecedent may require.
SECTION 6.05. This MERGER AGREEMENT shall be governed by and construed in
accordance with the laws of the State of Ohio and of the State of Michigan.
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IN WITNESS WHEREOF, this MERGER AGREEMENT has been executed on behalf of
the CONSTITUENT CORPORATIONS and of AIRNET by their officers duly authorized in
the premises.
ATTEST: AIRNET:
AIRNET SYSTEMS, INC.
By: Xxxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxx
____________________________ ____________________________
Xxxxxxx X. Xxxxxx, its Xxxxxx X. Xxxxxx, its President
Secretary and Chief Executive Officer
ATTEST: MERGER CORP.:
AIRNET MERGER CORPORATION
By: Xxxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxx
____________________________ ____________________________
Xxxxxxx X. Xxxxxx, its Xxxxxx X. Xxxxxx, its
Secretary President
ATTEST: FLOAT CONTROL:
FLOAT CONTROL, INC.
By: Xxxxxxx X. Xxxxxxx By: Xxxxxx X. Xxxxxx
____________________________ ____________________________
Xxxxxxx X. Xxxxxxx, its Xxxxxx X. Xxxxxx, its
Secretary President
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