Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
PRECISION STANDARD, INC.
(a Colorado corporation)
AND
PEMCO AVIATION GROUP, INC.
(a Delaware corporation)
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of April 20, 2000 between Precision Standard, Inc.
("Precision Standard"), a Colorado corporation, and Pemco Aviation Group,
Inc. ("Pemco"), a Delaware corporation.
RECITALS
WHEREAS, Precision Standard is a corporation duly organized and
existing under the laws of the State of Colorado;
WHEREAS, Pemco is a corporation duly organized and existing under the
laws of the State of Delaware; and
WHEREAS, the Board of Directors of each of Precision Standard and
Pemco deem it desirable to merge Precision Standard with and into Pemco so
that Pemco is the surviving corporation on the terms provided herein (the
"Merger").
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
MERGER
1.1 The Merger. Upon the Effective Date (as defined in Section 1.5)
and subject to and upon the terms and conditions provided in this
Agreement and the applicable provisions of the General Corporation Law of
the State of Delaware (the "DGCL") and the Colorado Business Corporation
Act (the "CBCA"), Precision Standard will merge with and into Pemco, the
separate corporate existence of Precision Standard shall cease, and Pemco
shall be the surviving corporation. Pemco is hereinafter sometimes
referred to as the "Surviving Corporation." To the extent the merger
constitutes a transaction for federal income tax purposes, the parties
intend that the merger qualify as a reorganization described in Section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
1.2 Constituent Corporations. The name of each of the constituent
corporations is as follows:
(a) Precision Standard, Inc., a Colorado corporation, is the
parent corporation of Pemco Aviation Group, Inc.; and
(b) Pemco Aviation Group, Inc., a Delaware corporation, is a
wholly-owned subsidiary of Precision Standard, Inc.
1.3 Surviving Corporation. Pemco Aviation Group, Inc., a Delaware
corporation, shall be the Surviving Corporation.
1.4 Address of Principal Office of Surviving Corporation. The
address of the principal office of the Surviving Corporation shall be 0000
Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
1.5 Closing; Effective Date. The Merger shall be effective (the
"Effective Date"), in accordance with Section 7-111-104(5) of the CBCA, on
the date upon which the last of the following shall have been completed:
(a) This Agreement and the Merger shall have been adopted by
the board of directors of Precision Standard and approved by a majority of
the outstanding shares of Precision Common Stock (as defined in Section
2.1), in accordance with the requirements of the DGCL and the CBCA;
(b) This Agreement and the Merger shall have been adopted and
approved by the board of directors of Pemco, in accordance with the
requirements of the DGCL; no vote of stockholders of Pemco is necessary to
authorize this Agreement and the Merger because there are no currently
existing stockholders of Pemco;
(c) The effective date of the Merger as stated in the executed
Articles of Merger filed with the Secretary of State of the State of
Colorado; and
(d) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the DGCL shall
have been filed with the Secretary of State of the State of Delaware.
1.6 Effect of the Merger. The effect of the Merger shall be as
provided in this Agreement, the Certificate of Merger, and the applicable
provisions of the DGCL and the CBCA. Without limiting the foregoing, on
the Effective Date, all the property, rights, privileges, powers and
franchises of Precision Standard shall vest in Pemco, as the Surviving
Corporation, and all debts, liabilities and duties of Precision Standard
shall become the debts, liabilities and duties of Pemco, as the Surviving
Corporation.
1.7 Certificate of Incorporation; Bylaws.
(a) From and after the Effective Date, the Certificate of
Incorporation of Pemco as in effect immediately prior to the Effective
Date, shall be the Certificate of Incorporation of the Surviving
Corporation.
(b) From and after the Effective Date, the Bylaws of Pemco as
in effect immediately prior to the Effective Date, shall be the Bylaws of
the Surviving Corporation.
1.8 Directors and Officers of the Surviving Corporation. From and
after the Effective Date, the directors or officers of Pemco serving as
directors or officers of Pemco immediately prior to the Effective Date,
shall be the directors and officers of the Surviving Corporation.
ARTICLE II
CONVERSION OF SHARES
2.1 Conversion of Stock. Upon the Effective Date, by virtue of
the Merger and without any action on the part of the holders of any
outstanding shares of capital stock or other securities of Precision
Standard, each share of common stock of Precision Standard, par value
$0.0001 per share ("Precision Common Stock"), issued and outstanding
immediately prior to the Effective Date shall be converted into one (1)
fully paid and nonassessable share of Common Stock, par value $0.0001 per
share, of the Surviving Corporation ("Pemco Common Stock"). Upon the
Effective Date, each certificate (each, an "Old Certificate" and
collectively the "Old Certificates") representing a share or shares of
Precision Common Stock will represent the right to receive from Pemco a
certificate (each a "New Certificate" and collectively the "New
Certificates") representing an equivalent number of shares of Pemco Common
Stock.
2.2 Exchange of Certificates.
(a) At the Effective Date, Pemco shall deposit with an exchange
agent designated by it for such purpose ("Exchange Agent"), for the
benefit of holders of Precision Common Stock, New Certificates
representing the Pemco Common Stock to be issued pursuant to Section 2.1
in exchange for outstanding Precision Common Stock.
(b) Promptly after the Effective Date, Pemco shall cause the
Exchange Agent to provide to the holder of an Old Certificate instructions
on the exchange of such Old Certificate for a New Certificate.
(c) Until so surrendered, each Old Certificate shall be deemed
for all purposes to represent the number of shares of Pemco Common Stock
into which it is converted pursuant to Section 2.1, and the holder of such
Old Certificate shall have and be entitled to exercise any voting and
other rights with respect to, and to receive dividends and other
distributions upon, the Pemco Common Stock into which such Old Certificate
was converted pursuant to Section 2.1. If any New Certificate is to be
issued in a name other than that on the Old Certificate, it shall be a
condition to the issuance of the New Certificate that the Old Certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer
establish to the satisfaction of Pemco that all transfer or other taxes
payable by reason of the issuance of such New Certificate in a name other
than that of the registered holder of the Old Certificate surrendered has
been paid or is not payable.
2.3 Precision Standard Employee Plans and Options.
(a) Upon the Effective Date, Pemco shall assume and continue
Precision Standard's 1989 Nonqualified Stock Option Plan, as amended.
Each outstanding and unexercised option or other right to purchase or a
security convertible into Precision Common Stock shall become an option or
right to purchase or a security convertible into Pemco Common Stock on the
basis of one share of Pemco Common Stock for each share of Precision
Common Stock issuable pursuant to such option, stock purchase right or
convertible security, on the same terms and conditions and at an exercise
price per share equal to the exercise price applicable to any such
Precision Standard option, stock purchase right or convertible security on
the Effective Date. There are no options or stock purchase rights for or
securities convertible into the preferred stock of Precision Standard, par
value $0.01 per share.
(b) A number of shares of Pemco Common Stock shall be reserved
for issuance upon the exercise of options, stock purchase rights and
convertible securities equal to the number of shares of Precision Common
Stock so reserved immediately prior to the Effective Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Precision Standard. Precision
Standard hereby covenants and agrees that it:
(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado, and has all the
requisite power and authority to own, lease and operate its properties and
assets and to carry on its business as it is now being conducted;
(b) Is duly qualified to do business as a foreign person, and
is in good standing, in each jurisdiction where the character of its
properties or the nature of its activities make such qualification
necessary;
(c) Is not in violation of any provisions of its articles of
incorporation or bylaws; and
(d) Has full corporate power and authority to execute and
deliver this Agreement and, assuming the approval of the Merger by the
stockholders of Precision Standard in accordance with the CBCA, consummate
the Merger and the other transactions contemplated by this Agreement.
3.2 Representations and Warranties of Pemco. Pemco hereby
covenants and agrees that it:
(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all the
requisite power and authority to own, lease and operate its properties and
assets and to carry on its business as it is now being conducted;
(b) Is duly qualified to do business as a foreign person, and
is in good standing, in each jurisdiction where the character of its
properties or the nature of its activities make such qualification
necessary;
(c) Is not in violation of any provisions of its certificate of
incorporation or bylaws; and
(d) Has full corporate power and authority to execute and
deliver this Agreement and consummate the Merger and the other
transactions contemplated by this Agreement.
ARTICLE IV
TERMINATION
4.1 Termination. At any time prior to the Effective Date, this
Agreement may be terminated and the Merger abandoned for any reason
whatsoever by the Board of Directors of either Precision Standard or
Pemco, or both of them, notwithstanding the approval of this Agreement and
the Merger by a majority of the outstanding shares of Precision Standard
entitled to vote.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances as to Precision Standard. From time to
time, as and when required by Pemco or by its successors or assigns, there
shall be executed and delivered on behalf of Precision Standard such deeds
and other instruments, and there shall be taken or caused to be taken by
Pemco such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by Pemco
the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of
Precision Standard and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Pemco are fully authorized in
the name and on behalf of Precision Standard or otherwise to take any and
all such action and to execute and deliver any and all such deeds and
other instruments.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. Subject to applicable law, at any time prior to
the Effective Date, this Agreement may be amended, modified or
supplemented only by the written agreement of Precision Standard and
Pemco.
6.2 Assignment; Third Party Beneficiaries. Neither this
Agreement, nor any right, interest or obligation hereunder shall be
assigned by any of the parties hereto without the prior written consent of
the other parties. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
This Agreement is not intended to confer any rights or benefits upon any
person other than the parties hereto.
6.3 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware shall be 0000 Xxxxxx Xxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle, 19801, and Corporation Service Company
shall be the registered agent of the Surviving Corporation at such
address.
6.4 Executed Agreement. Executed copies of this Agreement will be
on file at the principal place of business of the Surviving Corporation at
Pemco Aviation Group, Inc., 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000 and copies of this Agreement will be furnished to any stockholder of
any of the parties hereto, upon request and without cost.
6.5 Governing Law. This Agreement shall in all respects be
interpreted by, and construed, interpreted and enforced in accordance with
and pursuant to the laws of the State of Delaware and, so far as
applicable, by the provisions of the CBCA.
6.6 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 and the same instrument.
6.7 Entire Agreement; Modification. This Agreement and the
documents referred to herein are intended by the parties as a final
expression of their agreement with respect to the subject matter hereof,
and are intended as a complete and exclusive statement of the terms and
conditions of that agreement, and there are not other agreements or
understandings, written or oral, among the parties, relating to the
subject matter hereof. This Agreement supercedes all prior agreements and
understandings, written or oral, among the parties with respect to the
subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Agreement as of the date first stated
above.
PRECISION STANDARD, INC.
(A Colorado corporation)
By: /s/ Xxxxxx X Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
PEMCO AVIATION GROUP, INC.
(A Delaware corporation)
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
