EXHIBIT 10.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is entered into as of November 6,
2001 by and between Ponte Nossa Acquisition Corp., a Delaware corporation
("PNSO"), and Visijet, Inc., a California corporation ("VISIJET"). PNSO and
Visijet are referred to collectively herein as the "PARTIES."
This Agreement contemplates a tax-free merger of Visijet with and into
PNSO in a reorganization pursuant to Code ss.368(a)(1)(A). Visijet Stockholders
will receive Common Stock in PNSO in exchange for their capital stock in
Visijet.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"PNSO" has the meaning set forth in the preface above.
"PNSO SHARE" means any share of the Common Stock, $.001 par value per
share, of PNSO.
"CALIFORNIA CODE" means the California General Corporation Law, as
amended.
"CERTIFICATE OF MERGER" has the meaning set forth in ss.2(c) below.
"CLOSING" has the meaning set forth in ss.2(b) below.
"CLOSING DATE" has the meaning set forth in ss.2(b) below.
"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of Visijet and its Subsidiaries that is not already
generally available to the public.
"CONVERSION RATIO" has the meaning set forth in ss.2(d)(v) below.
"DEFINITIVE PNSO PROXY MATERIALS" means the definitive proxy materials
relating to the Special PNSO Meeting.
"DEFINITIVE VISIJET INFORMATION STATEMENT" means the definitive
Information Statement to be distributed to Visijet shareholders.
"DELAWARE GENERAL CORPORATION LAW" means the General Corporation Law of
the State of Delaware, as amended.
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"DISCLOSURE SCHEDULE" has the meaning set forth in ss.3 below.
"DISSENTING SHARE" means any Visijet Share which any stockholder who
has exercised his or its appraisal rights under the California Code holds of
record.
"EFFECTIVE TIME" has the meaning set forth in ss.2(d)(i) below.
"EXCHANGE AGENT" has the meaning set forth in ss.2(e) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"IRS" means the Internal Revenue Service.
"JOINT DISCLOSURE DOCUMENT" means the disclosure document combining the
Prospectus, the Definitive PNSO Proxy Materials, and the Definitive Visijet
Information Statement.
"KNOWLEDGE" means actual knowledge, after reasonable investigation.
"MERGER" has the meaning set forth in ss.2(a) below.
"MOST RECENT FISCAL QUARTER END" shall mean September 30, 2001.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"PROSPECTUS" means the final prospectus relating to the registration of
PNSO Shares under the Securities Act.
"PUBLIC REPORT" has the meaning set forth in ss.3(e) below.
"REGISTRATION STATEMENT" has the meaning set forth in ss.5(c)(i) below.
"REQUISITE PNSO STOCKHOLDER APPROVAL" means the affirmative vote of the
holders of a majority of PNSO Shares in favor of this Agreement and the Merger.
"REQUISITE VISIJET STOCKHOLDER APPROVAL" means the affirmative vote of
the holders of a majority of Visijet Shares in favor of this Agreement and the
Merger.
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"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, OTHER THAN (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"SPECIAL PNSO MEETING" has the meaning set forth in ss.5(c)(ii) below.
"SUBSIDIARY" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"SURVIVING CORPORATION" has the meaning set forth in ss.2(a) below.
"VISIJET" has the meaning set forth in the preface above.
"VISIJET SHAREHOLDER CONSENT" has the meaning set forth in ss.5(c)(ii)
below.
"VISIJET SHARE" means any share of the Common Stock, without par value,
of Visijet.
"VISIJET STOCKHOLDER" means any Person who or which holds any Visijet
Shares.
2. BASIC TRANSACTION.
(a) THE MERGER. On and subject to the terms and conditions of this
Agreement, Visijet will merge with and into PNSO (the "MERGER") at the Effective
Time. PNSO shall be the corporation surviving the Merger (the "SURVIVING
CORPORATION"). The Surviving Corporation shall possess all of the rights,
privileges and immunities of VisiJet and shall become responsible for all of the
liabilities and obligations of VisiJet, whether written or implied in law,
including without limitation all liabilities and obligations approved by the
Board of Directors of VisiJet, or resulting from the approval of actions by the
Board or Directors of VisiJet, prior to the Effective Time.
(b) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place at the offices of Xxxxxx & Xxxxxx,
LLP, 0000 XxxXxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, commencing at
9:00 a.m. local time on the second business day
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following the satisfaction or waiver of all conditions to the obligations of the
Parties to consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually determine (the
"CLOSING DATE").
(c) ACTIONS AT THE CLOSING. At the Closing, (i) Visijet will deliver to
PNSO the various certificates, instruments, and documents referred to in ss.6(a)
below, (ii) PNSO will deliver to Visijet the various certificates, instruments,
and documents referred to in ss.6(b) below, (iii) PNSO and Visijet will file
with the Secretaries of State of the States of Delaware and California a
Certificate of Merger in the form attached hereto as Exhibit B (the "CERTIFICATE
OF MERGER"), and (iv) PNSO will deliver to the Exchange Agent in the manner
provided below in this ss.2 the certificate evidencing PNSO Shares issued in the
Merger.
(d) EFFECT OF MERGER.
(i) GENERAL. The Merger shall become effective at the time
(the "EFFECTIVE TIME") PNSO and Visijet file the Certificate of Merger
with the Secretary of State of the State of Delaware. The Merger shall
have the effect set forth in the Delaware General Corporation Law. The
Surviving Corporation may, at any time after the Effective Time, take
any action (including executing and delivering any document) in the
name and on behalf of either PNSO or Visijet in order to carry out and
effectuate the transactions contemplated by this Agreement.
(ii) CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of PNSO in effect at and as of the Effective Time will
remain the Certificate of Incorporation of the Surviving Corporation
without any modification or amendment in the Merger, except that
Article I shall be amended to read as follows:
ARTICLE I
Name of Corporation
The name of this corporation is Visijet, Inc.
(iii) BYLAWS. The Bylaws of the Surviving Corporation shall be
as set forth on Exhibit A hereto.
(iv) DIRECTORS AND OFFICERS. The Board of Directors of the
Surviving Corporation shall consist of two persons nominated by Visijet
and two persons nominated by PNSO. The officers of Visijet in office at
and as of the Effective Time will become the officers of the Surviving
Corporation (retaining their respective positions and terms of office),
and the officers of PNSO shall be removed;
(v) CONVERSION OF VISIJET SHARES. At and as of the Effective
Time, (A) each Visijet Share (other than any Dissenting Share or
PNSO-owned Share) shall be converted into the
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right to receive one PNSO Shares (the ratio of one PNSO Shares to
one Visijet Share is referred to herein as the "CONVERSION RATIO"), (B)
each Dissenting Share shall be converted into the right to receive
payment from the Surviving Corporation with respect thereto in
accordance with the provisions of the Delaware General Corporation Law,
and (C) each PNSO-owned Share shall be canceled; PROVIDED, HOWEVER,
that the Conversion Ratio shall be subject to equitable adjustment in
the event of any stock split, stock dividend, reverse stock split, or
other change in the number of Visijet Shares outstanding. After such
conversion, no Visijet Share shall be deemed to be outstanding or to
have any rights other than those set forth above in this ss.2(d)(v)
after the Effective Time.
(vi) PNSO SHARES. Each PNSO Share issued and outstanding at
and as of the Effective Time will remain issued and outstanding.
(e) PROCEDURE FOR PAYMENT.
(i) Immediately after the Effective Time, (A) PNSO will
furnish to Nevada Agency & Trust Company, 00 Xxxx Xxxxxxx, Xxxxx 000,
Xxxx, Xxxxxx (the "EXCHANGE AGENT") a stock certificate (issued in the
name of the Exchange Agent or its nominee) representing that number of
PNSO Shares equal to the product of (I) the Conversion Ratio TIMES (II)
the number of outstanding Visijet Shares (other than any Dissenting
Shares and PNSO-owned Shares) and (B) PNSO will cause the Exchange
Agent to mail a letter of transmittal (with instructions for its use)
in the form attached hereto as Exhibit C to each record holder of
outstanding Visijet Shares for the holder to use in surrendering the
certificates which represented his or its Visijet Shares in exchange
for a certificate representing the number of PNSO Shares to which he or
it is entitled.
(ii) PNSO will not pay any dividend or make any distribution
on PNSO Shares (with a record date at or after the Effective Time) to
any record holder of outstanding Visijet Shares until the holder
surrenders for exchange his or its certificates which represented
Visijet Shares. PNSO 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. PNSO may cause the Exchange
Agent to invest any cash the Exchange Agent receives from PNSO as a
dividend or distribution in one or more of the permitted investments
set forth on Exhibit D attached hereto; PROVIDED, HOWEVER, that the
terms and conditions of the investments shall be such as to permit the
Exchange Agent to make prompt payments of cash to the holders of
outstanding Visijet Shares as necessary. PNSO may cause the Exchange
Agent to pay over to PNSO any net earnings with respect to the
investments, and PNSO will replace promptly any cash which the Exchange
Agent loses through investments. In no event, however, will any holder
of outstanding Visijet Shares be entitled to any interest or earnings
on the dividend or distribution pending receipt.
(iii) PNSO may cause the Exchange Agent to return any PNSO
Shares and dividends and distributions thereon remaining unclaimed 180
days after the Effective Time, and
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thereafter each remaining record holder of outstanding Visijet Shares
shall be entitled to look to PNSO (subject to abandoned property,
escheat, and other similar laws) as a general creditor thereof with
respect to PNSO Shares and dividends and distributions thereon to which
he or it is entitled upon surrender of his or its certificates.
(iv) Visijet shall pay all charges and expenses of the
Exchange Agent.
(f) CLOSING OF TRANSFER RECORDS. After the close of business on the
Closing Date, transfers of Visijet Shares outstanding prior to the Effective
Time shall not be made on the stock transfer books of the Surviving Corporation.
3. REPRESENTATIONS AND WARRANTIES OF VISIJET. Visijet represents and
warrants to PNSO that the statements contained in this ss.3 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3), except as set
forth in the disclosure schedule accompanying this Agreement and initialed by
the Parties (the "DISCLOSURE SCHEDULE"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this ss.3.
(a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Visijet is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of California. Visijet is duly authorized to conduct business
and is in good standing under the laws of each jurisdiction where such
qualification is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of Visijet or on the
ability of the Parties to consummate the transactions contemplated by this
Agreement. Visijet has full corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it.
(b) CAPITALIZATION. The entire authorized capital stock of Visijet
consists of 10,000,000 shares of Common Stock, without par value, and 5,000,000
shares of Preferred Stock, without par value, of which 673,470 shares of Common
Stock are issued and outstanding 140,306 shares of Series A Preferred Stock are
issued and outstanding, and 363,945 shares of Series B Preferred Stock are
issued and outstanding (collectively, the "VISIJET SHARES"). All of the issued
and outstanding Visijet Shares have been duly authorized and are validly issued,
fully paid, and nonassessable. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require Visijet to issue,
sell, or otherwise cause to become outstanding any of its capital stock, except
for options to purchase up to 120,000 Shares of Common Stock granted to
employees and consultants. Except as so stated, there are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or similar
rights with respect to Visijet.
(c) AUTHORIZATION OF TRANSACTION. Visijet has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder; PROVIDED, HOWEVER, that
Visijet cannot consummate the Merger unless and until it
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receives the Requisite Visijet Stockholder Approval. This Agreement constitutes
the valid and legally binding obligation of Visijet, enforceable in accordance
with its terms and conditions.
(d) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of Visijet is subject or any
provision of the charter or bylaws of Visijet or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument or other
arrangement to which any of Visijet is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any Security
Interest upon any of its assets). To the Knowledge of Visijet, other than in
connection with the provisions of the Delaware General Corporation Law, the
California Code, the Securities Exchange Act, the Securities Act, and the state
securities laws, Visijet does not need to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement.
(e) FINANCIAL STATEMENTS. Visijet has furnished PNSO with its audited
financial statements as of December 31, 2000 and 1999 and the years then ended,
as well as unaudited financial statements as of October 31, 2001 and for the
period of ten months then ended (the "VISIJET FINANCIAL STATEMENTS"). The
Visijet Financial Statements (including the related notes and schedules) have
been prepared in accordance with GAAP applied on a consistent basis throughout
the periods covered thereby and present fairly the financial condition of
Visijet as of the indicated dates and the results of operations of Visijet for
the indicated periods; PROVIDED, HOWEVER, that the interim statements are
subject to normal year-end adjustments.
(f) EVENTS SUBSEQUENT TO MOST RECENT FISCAL QUARTER END. Since the Most
Recent Fiscal Quarter End, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of Visijet taken as a whole.
(g) UNDISCLOSED LIABILITIES. Visijet has no liability (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether due or to
become due), including any liability for taxes, except for (i) liabilities set
forth on the face of the balance sheet dated as of the Most Recent Fiscal
Quarter End and (ii) liabilities which have arisen after the Most Recent Fiscal
Quarter End in the Ordinary Course of Business (none of which results from,
arises out of, relates to, is in the nature of, or was caused by any breach of
contract, breach of warranty, tort, infringement, or violation of law).]
(h) BROKERS' FEES. Visijet has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
(i) DISCLOSURE. The Definitive Visijet Information Statement will
comply with
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the Securities Exchange Act in all material respects. The Definitive Visijet
Information Statement will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they will be made, not
misleading; PROVIDED, HOWEVER, that Visijet makes no representation or warranty
with respect to any information that PNSO will supply specifically for use in
the Definitive Visijet Information Statement. None of the information that
Visijet will supply specifically for use in the Registration Statement, the
Prospectus, or the Definitive PNSO Proxy Materials will contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements made therein, in the light of the circumstances under
which they will be made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF PNSO. PNSO represents and warrants
to Visijet that the statements contained in this ss.4 are correct and complete
as of the date of this Agreement and will be correct and complete as of the
Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.4), except as set
forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in
paragraphs corresponding to the numbered and lettered paragraphs contained in
this ss.4.
(a) ORGANIZATION. PNSO is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
(b) CAPITALIZATION. The entire authorized capital stock of PNSO
consists of 20,000,000 shares of Common Stock, of which 13,000,000 shares are
issued and outstanding, and 10,000,000 shares of Preferred Stock, none of which
are issued or outstanding. All the PNSO Shares to be issued in the Merger have
been duly authorized and, upon consummation of the Merger, will be validly
issued, fully paid, and nonassessable.
(c) AUTHORIZATION OF TRANSACTION. PNSO has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder; PROVIDED, HOWEVER, that PNSO
cannot consummate the Merger unless and until it receives the Requisite PNSO
Stockholder Approval. This Agreement constitutes the valid and legally binding
obligation of PNSO, enforceable in accordance with its terms and conditions.
(d) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which PNSO is subject or any provision of the
charter or bylaws of PNSO or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument or other arrangement
to which PNSO is a party or by which it is bound or to which any of its assets
is subject. Other than in connection with the Delaware General Corporation Law,
the Securities Exchange Act, the Securities Act, and state securities laws, PNSO
does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
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governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement.
(e) BROKERS' FEES. PNSO does not have any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Visijet could become
liable or obligated.
(f) DISCLOSURE. The Registration Statement, the Prospectus, and the
Definitive PNSO Proxy Materials will comply with the Securities Act and the
Securities Exchange Act in all material respects. The Registration Statement,
the Prospectus, and the Definitive PNSO Proxy Materials will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they will be made, not misleading; PROVIDED, HOWEVER, that PNSO
makes no representation or warranty with respect to any information that Visijet
will supply specifically for use in the Registration Statement, the Prospectus,
and the Definitive PNSO Proxy Materials. None of the information that PNSO will
supply specifically for use in the Definitive Visijet Information Statement will
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading.
5. COVENANTS. The Parties agree as follows with respect to the period
from and after the execution of this Agreement.
(a) GENERAL. Each of the Parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make effective
the transactions contemplated by this Agreement (including satisfaction, but not
waiver, of the closing conditions set forth in ss.6 below).
(b) NOTICES AND CONSENTS. Visijet will give any notices to third
parties, and will use its best efforts to obtain, any third party consents, that
PNSO reasonably may request in connection with the matters referred to in
ss.3(d) above.
(c) REGULATORY MATTERS AND APPROVALS. Each of the Parties will give any
notices to, make any filings with, and use its best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in ss.3(d) and ss.4(d) above. Without
limiting the generality of the foregoing:
(i) SECURITIES ACT, SECURITIES EXCHANGE ACT, AND STATE
SECURITIES LAWS. Visijet will prepare and file with the SEC a
preliminary information statement under the Securities Exchange Act
relating to the Visijet Shareholder Consent. PNSO will prepare and file
with the SEC a registration statement under the Securities Act relating
to the offering and issuance of PNSO Shares (the "REGISTRATION
STATEMENT") and preliminary proxy materials under the Securities
Exchange Act relating to the Special PNSO Meeting. The filing Party in
each instance will use its best efforts to respond to the comments of
the SEC thereon and will make any further filings (including amendments
and supplements) in
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connection therewith that may be necessary. PNSO will provide Visijet,
and Visijet will provide PNSO, with whatever information and assistance
in connection with the foregoing filings that the filing Party
reasonably may request. PNSO will take all actions that may be
necessary under state securities laws in connection with the offering
and issuance of PNSO Shares.
(ii) STATE CORPORATION LAWS. Visijet will cause its principal
shareholders to execute a consent as soon as reasonably practicable in
order that the stockholders may approve the adoption of this Agreement
and the Merger in accordance with the California Code. PNSO will call a
special meeting of its stockholders (the "SPECIAL PNSO MEETING") as
soon as reasonably practicable in order that the stockholders may
consider and vote upon the adoption of this Agreement and the approval
of the Merger in accordance with the Delaware General Corporation Law.
The Parties will mail the Joint Disclosure Document to their respective
stockholders simultaneously and as soon as reasonably practicable. The
Joint Disclosure Document will contain the affirmative recommendations
of the respective boards of directors of the Parties in favor of the
adoption of this Agreement and the approval of the Merger; PROVIDED,
HOWEVER, that no director or officer of either Party shall be required
to violate any fiduciary duty or other requirement imposed by law in
connection therewith.
(d) OPERATION OF BUSINESS. Visijet will not (and will not cause or
permit any of its Subsidiaries to) engage in any practice, take any action, or
enter into any transaction outside the Ordinary Course of Business. Without
limiting the generality of the foregoing:
(i) Visijet will not authorize or effect any change in its
charter or bylaws;
(ii) Visijet will not grant any options, warrants, or other
rights to purchase or obtain any of its capital stock or issue, sell,
or otherwise dispose of any of its capital stock (except upon the
conversion or exercise of options, warrants, and other rights currently
outstanding);
(iii) Visijet will not declare, set aside, or pay any dividend
or distribution with respect to its capital stock (whether in cash or
in kind), or redeem, repurchase, or otherwise acquire any of its
capital stock;
(iv) Visijet will not issue any note, bond, or other debt
security or create, incur, assume, or guarantee any indebtedness for
borrowed money or capitalized lease obligation outside the Ordinary
Course of Business;
(v) Visijet will not impose any Security Interest upon any of
its assets outside the Ordinary Course of Business;
(vi) Visijet will not make any capital investment in, make any
loan to, or acquire the securities or assets of any other Person
outside the Ordinary Course of Business;
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(vii) Visijet will not make any change in employment terms for
any of its directors, officers, and employees outside the Ordinary
Course of Business; and
(viii) Visijet will not commit to do any of the foregoing.
(e) FULL ACCESS. Visijet will permit representatives of PNSO to have
full access to all premises, properties, personnel, books, records (including
tax records), contracts, and documents of or pertaining to each of Visijet. PNSO
will treat and hold as such any Confidential Information it receives from
Visijet in the course of the reviews contemplated by this ss.5(e), will not use
any of the Confidential Information except in connection with this Agreement,
and, if this Agreement is terminated for any reason whatsoever, agrees to return
to Visijet all tangible embodiments (and all copies) thereof which are in its
possession.
(f) NOTICE OF DEVELOPMENTS. Each Party will give prompt written notice
to the other of any material adverse development causing a breach of any of its
own representations and warranties in ss.3 and ss.4 above. No disclosure by any
Party pursuant to this ss.5(h), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(g) EXCLUSIVITY. Visijet will not solicit, initiate, or encourage the
submission of any proposal or offer from any Person relating to the acquisition
of all or substantially all of the capital stock or assets of Visijet (including
any acquisition structured as a merger, consolidation, or share exchange);
PROVIDED, HOWEVER, that Visijet and its directors and officers will remain free
to participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any Person to do or seek any of the
foregoing to the extent their fiduciary duties may require. Visijet shall notify
PNSO immediately if any Person makes any proposal, offer, inquiry, or contact
with respect to any of the foregoing.
(h) INSURANCE AND INDEMNIFICATION. PNSO, as the Surviving Corporation
in the Merger, will observe any indemnification provisions now existing in the
Articles of Incorporation or bylaws of Visijet for the benefit of any individual
who served as a director or officer of Visijet at any time prior to the
Effective Time.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF PNSO. The obligation of PNSO to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the
Requisite Visijet Stockholder Approval;
(ii) Visijet shall have procured all of the third party
consents specified in ss.5(b) above;
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(iii) the representations and warranties set forth inss.3
above shall be true and correct in all material respects at and as of
the Closing Date;
(iv) Visijet shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(v) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Surviving
Corporation to own the former assets, and to operate the former
businesses of Visijet (and no such injunction, judgment, order, decree,
ruling, or charge shall be in effect);
(vi) the outstanding shares of Series A Preferred Stock of
Visijet shall have been converted into a maximum of 280,612 shares of
Visijet Common Stock, the outstanding shares of Series B Preferred
Stock of Visijet shall have been converted into a maximum of 545,918
shares of Visijet Common Stock, and 100,000 of the outstanding options
to purchase Common Stock shall have been exercised, with the remaining
20,000 options cancelled or otherwise disposed of, so that immediately
prior to the Effective Time there are 8,600,000 shares of Visijet
Common Stock outstanding, no shares of Visijet Preferred Stock
outstanding, and no options outstanding;
(vii) this Agreement and the Merger shall have received the
Requisite PNSO Stockholder Approval;
(viii) the Registration Statement shall have become effective
under the Securities Act;
(ix) the Parties shall have received all other authorizations,
consents, and approvals of governments and governmental agencies
referred to in ss.3(d) and ss.4(d) above];
(x) PNSO shall have received the resignations, effective as of
the Closing, of each director and officer of PNSO, other than those
whom Visijet shall have specified in writing prior to the Closing; and
(xi) all actions to be taken by Visijet in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to PNSO.
PNSO may waive any condition specified in this ss.6(a) if it executes a
writing so stating at or prior to the Closing.
Page 12 of 17
(b) CONDITIONS TO OBLIGATION OF VISIJET. The obligation of Visijet to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the
Requisite PNSO Stockholder Approval;
(ii) the Registration Statement shall have become effective
under the Securities Act;
(iii) the representations and warranties set forth inss.4
above shall be true and correct in all material respects at and as of
the Closing Date;
(v) PNSO shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(vi) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Surviving
Corporation to own the former assets, and to operate the former
businesses of Visijet (and no such injunction, judgment, order, decree,
ruling, or charge shall be in effect);
(vii) PNSO shall have effected the redemption, repurchase or
cancellation of at least 9,500,000 of its shares of Common Stock, such
that the number of outstanding shares of Common Stock of PNSO
immediately prior to the Effective Time does not exceed 3,500,000.
(viii) this Agreement and the Merger shall have received the
Requisite Visijet Stockholder Approval;
(ix) The Parties shall have received all other authorizations,
consents, and approvals of governments and governmental agencies
referred to in ss.3(d) and ss.4(d) above];
(x) PNSO shall have cash or cash equivalents equal to
$3,500,000, less any amounts theretofore advanced to or for the benefit
of Visijet;
(xi) all actions to be taken by PNSO in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Visijet.
Page 13 of 17
Visijet may waive any condition specified in this ss.6(b) if it
executes a writing so stating at or prior to the Closing.
7. TERMINATION.
(a) TERMINATION OF AGREEMENT. Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether before
or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Effective Time;
(ii) PNSO may terminate this Agreement by giving written
notice to Visijet at any time prior to the Effective Time (A) in the
event Visijet has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, PNSO has
notified Visijet of the breach, and the breach has continued without
cure for a period of 30 days after the notice of breach or (B) if the
Closing shall not have occurred on or before June 30, 2002, by reason
of the failure of any condition precedent under ss.6(a) hereof (unless
the failure results primarily from PNSO breaching any representation,
warranty, or covenant contained in this Agreement);
(iii) Visijet may terminate this Agreement by giving written
notice to PNSO at any time prior to the Effective Time (A) in the event
PNSO has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Visijet has
notified PNSO of the breach, and the breach has continued without cure
for a period of 30 days after the notice of breach or (B) if the
Closing shall not have occurred on or before June 30, 2002, by reason
of the failure of any condition precedent under ss.6(b) hereof (unless
the failure results primarily from Visijet breaching any
representation, warranty, or covenant contained in this Agreement);
(iv) any Party may terminate this Agreement by giving written
notice to the other Party at any time after the Special PNSO or the
Visijet Shareholder Consent in the event this Agreement and the Merger
fail to receive the Requisite PNSO Stockholder Approval or the
Requisite Visijet Stockholder Approval, respectively.
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to ss.7(a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach); PROVIDED, HOWEVER, that the
confidentiality provisions contained in ss.5(g) above shall survive any such
termination.
8. MISCELLANEOUS.
(a) SURVIVAL. None of the representations, warranties, and
covenants of the Parties (other than the provisions inss.2 above
concerning issuance of PNSO Shares, and the provisions in ss.5(j) above
Page 14 of 17
concerning indemnification) shall survive the Effective Time.
(b) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party; PROVIDED,
HOWEVER, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its best
efforts to advise the other Party prior to making the disclosure).
(c) NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns; PROVIDED, HOWEVER, that (i) the provisions in
ss.2 above concerning issuance of PNSO Shares are intended for the benefit of
Visijet Stockholders and (ii) the provisions in ss.5(j) above concerning
indemnification are intended for the benefit of the individuals specified
therein and their respective legal representatives.
(d) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
IF TO VISIJET:
Visijet, Inc.
000 Xxxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx, XX 00000 Fax: 000-000-0000
Page 15 of 17
Attn: President
IF TO PNSO:
00000 XxXxxxxxx Xxxx, Xxxxx X-0
Xxxxxx, XX 00000
-------------------------------
-------------------------------
Attn: President
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
(j) AMENDMENTS AND WAIVERS. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; PROVIDED, HOWEVER,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Delaware General Corporation Law. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by both of the Parties. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) EXPENSES. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
(m) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
Page 16 of 17
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
(n) INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
Ponte Nossa Acquisition Corp.
By: /S/ XXXXXX X. XXXXXX Xxxxxx X. XxXxxx, President
-----------------------------------
Visijet, Inc.
By: /S/ XXXXXX X. XXXXXX Xxxxxx X. Xxxxxx, President
------------------------------------
Page 17 of 17
