Exhibit 10.1
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN OF MERGER
(hereinafter called the “Agreement”) is entered into as
of the 15th day of March, 2009, by and among ALLEGIANT TRAVEL
COMPANY, a Nevada corporation (“ALGT”), ALLEGIANT
INFORMATION SYSTEMS, INC., a Nevada corporation
(“AIS”), RPW CONSOLIDATED INFORMATION SYSTEMS,
INCORPORATED, a New Hampshire corporation (“RPW”) and
ROBERT P. WILSON, III (“Wilson”).
W I T N E S
S E T H :
WHEREAS, Wilson currently owns 100%
of the outstanding capital stock of RPW; and
WHEREAS, AIS is a wholly-owned
subsidiary of ALGT; and
WHEREAS, the Boards of Directors of
RPW and AIS deem it advisable and in the best interests of RPW and
AIS and their respective stockholders that RPW merge with and into
AIS pursuant to this Agreement and applicable provisions of the
laws of the States of Nevada and New Hampshire (such transaction
being hereinafter called the “Merger”); and
WHEREAS, the parties propose to
enter into this Agreement and Plan of Merger which provides, among
other things, for the conversion of the RPW common stock issued and
outstanding immediately prior to the “Effective Date of the
Merger” (as herein defined) into shares of ALGT common stock;
and
WHEREAS, for federal income tax
purposes, it is intended that the Merger of RPW into AIS qualify as
a tax free “reorganization” within the meaning of
Section 368(a) of the Code; and
NOW, THEREFORE, in consideration of
the premises and of the mutual agreements, provisions and covenants
herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
The Merger
1.01
The Merger, Effective Time and
Conversion Ratio .
Articles of Merger or a Certificate of Merger shall be executed and
acknowledged by each of AIS and RPW and delivered to the Secretary
of State of the States of Nevada and New Hampshire for filing as
provided in the Nevada Revised Statutes (“NRS”) and New
Hampshire Business Corporation Act as of the “Closing
Date” (as herein defined). The effective date of the
Merger shall be the date the Articles of Merger or a Certificate of
Merger shall have been duly filed with the
Secretary of State of the States of Nevada and
New Hampshire and the Merger shall be deemed effective for purposes
of this Agreement at 12:01 a.m. on the date that the Articles
of Merger or Certificate of Merger has been filed in each such
state (such date the “Effective Date” of the Merger and
such time the “Effective Time” of the Merger). At
the Effective Time of the Merger, the separate corporate existence
of RPW shall cease and RPW shall be merged with and into AIS in
accordance with Section 4.01 hereof.
1.02
Closing . The exchange of documents contemplated
in connection with the consummation of the Merger shall take place
at the offices of Ellis Funk, P.C., 3490 Piedmont Road, NE,
Suite 400, Atlanta, Georgia 30305, on March 15, 2009 or
such earlier or later date as may be agreed upon by AIS and
RPW. Such date and time is herein sometimes referred to as
the “Closing” or “Closing Date.” At
the Closing, the parties shall (i) deliver to each other the
certificates and other documents required to be delivered under
this Agreement including the Articles of Merger or Certificate of
Merger required to be filed in the States of Nevada and New
Hampshire and (ii) at the Closing or as soon thereafter as
possible, consummate the Merger by filing the Articles of Merger or
Certificate of Merger with the Secretary of State of the States of
Nevada and New Hampshire.
ARTICLE II
Representations and Warranties of RPW and Wilson
RPW and Wilson do hereby represent
and warrant to ALGT and AIS as follows:
2.01
Organization and Standing;
Certificate and By-laws . RPW is a corporation duly organized and
existing under, and by virtue of, the laws of the State of New
Hampshire and is in good standing under such laws. RPW has
the requisite corporate power and authority to own and operate its
properties and assets, and to carry on its business as presently
conducted. RPW has furnished ALGT or its counsel with a copy
of its Articles of Incorporation, as amended and in effect as of
the date of this Agreement. Said copy is true, correct and
complete and contains all amendments through the date hereof. RPW
never adopted any by-laws. Wilson represents he is the sole
Director of RPW and he has sole authority to act on behalf of
RPW.
2.02
Capitalization
. The authorized capital stock
of RPW consists of 100 shares of common stock, no par value per
share (the “RPW Common Stock”), of which 100 shares are
issued and outstanding. All of the outstanding shares of RPW
Common Stock are owned of record by Wilson. The outstanding
shares have been duly authorized and validly issued, are fully paid
and nonassessable and were issued in compliance with all applicable
securities and Blue Sky laws. RPW does not have any stock
option plan and has not reserved any shares of RPW Common Stock for
future issuance. No person has any option, warrant or other
right to acquire or force the issuance or registration of any
capital stock of RPW.
2.03
Subsidiaries
. RPW has no subsidiaries or
affiliated companies and does not otherwise own or control,
directly or indirectly, any equity interest in any corporation,
association or business entity.
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2.04
Authorization and
Enforceability .
RPW has all requisite legal and corporate power and authority to
execute and deliver this Agreement, to carry out and perform its
obligations under the terms of this Agreement and to consummate the
transactions contemplated hereby. All corporate action on the
part of RPW, its directors and stockholders necessary for the
authorization, execution, delivery and performance of this
Agreement by RPW and the performance of all of RPW’s
obligations hereunder has been taken. This Agreement, as well
as each of the other documents to be executed in conjunction with
the Merger, when executed and delivered by RPW (and assuming due
authorization, execution and delivery by the other parties hereto),
shall constitute a valid and binding obligation of RPW, enforceable
in accordance with its terms.
2.05
No Undisclosed
Liabilities .
Except as set forth on Schedule 2.05 , RPW has no
liabilities (whether accrued, absolute, contingent or otherwise,
and whether due or to become due or asserted or
unasserted).
2.06
Taxes . RPW was formed on November 14,
2008, and has not generated any taxable income since its
inception. RPW has yet to file any state or federal income
tax returns.
2.07
Leases . RPW does not own or lease any real or
personal property.
2.08
Tangible Personal
Property . RPW has
good, legal and marketable title to all of the items of tangible
personal property listed on Schedule 2.08 , free and clear
of any and all Liens, except for Liens incurred in the ordinary
course of business which would not be expected to impair
RPW’s use of such property in any material way.
2.09
Intellectual Property
.
(a)
For purposes of this Agreement, the
following terms shall have the meanings indicated:
(i)
“CMS License Agreement”
that certain Perpetual Software License Agreement of even date
herewith between CMS Solutions, Inc. (“CMS”) and
RPW, a copy of which has been provided to ALGT.
(ii)
“Existing License
Agreement” shall mean that certain non-exclusive license
agreement for the use of the Software set forth on Schedule
2.09(a) attached hereto.
(iii)
“Intellectual Property”
shall mean all trademarks and service marks (whether registered or
unregistered), trade names, designs and general intangibles of like
nature, together with all goodwill related thereto; patents and
patent applications (including any continuations,
continuations-in-part, divisional, reissues, renewals and
applications related to the Software; rights associated with works
of authorship, including all exclusive exploitation rights,
copyrights, neighboring rights, moral rights, and mask works
(including any registrations and applications therefor and whether
registered or unregistered); and information, including a formula,
pattern, compilation, program, device, method, technique, or
process, that: (1) derives independent economic value,
actual or potential, from not being generally known to the public
or
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to other Persons who can obtain economic value
from its disclosure or use; and (2) is the subject of efforts
to maintain its secrecy. “Intellectual Property”
includes computer software; databases; works of authorship; mask
works; technology; know-how, proprietary processes, formulae,
algorithms, models, user interfaces, customer lists, inventions,
discoveries, concepts, ideas, techniques, methods, source codes,
object codes, methodologies and, with respect to all of the
foregoing, related confidential data or information.
(iv)
“Software” shall mean
the Icarus Airline Web 6.0 software and includes any and all
(A) computer programs, including any and all software
implementations of algorithms, models and methodologies, whether in
source code or object code, (B) databases and compilations,
including any and all data and collections of data, whether machine
readable or otherwise, (C) descriptions, schematics,
flow-charts and other work product used to design, plan, organize
and develop any of the foregoing, and (D) all documentation,
including user manuals and training materials, relating to any of
the foregoing (the “Documentation”).
(b)
The Software is
merchantable and fit for the particular purposes for which it is
intended and is substantially in accordance with the specifications
contained in the Documentation.
(c)
There is no
action, suit, proceeding, or investigation pending or threatened
against RPW that questions the right of RPW to enter into this
Agreement or to consummate the transactions contemplated
hereby. RPW is aware of no litigation, claims or threatened
claims pertaining to the Software.
(d)
Except for the
CMS License Agreement, there are no agreements or contracts,
whether or not in writing, to which CMS or RPW is a party which
may: (i) contain provisions restricting and/or affecting
AIS’ development, distribution, use, marketing or sales of
products or services relating to the Software; (ii) involve
any joint venture, partnership, license or other arrangement
through which another party has any ownership or use rights in the
Software; (iii) identify the Software for security against a
debt or obligation; or (iv) require the disclosure of the
Software’s source or object code or a portion
thereof.
(e)
RPW has taken
commercially reasonable steps in accordance with normal industry
practice to protect the Intellectual Property contained in the
Software.
(f)
The Software does
not infringe upon, violate or constitute the unauthorized use of
any rights owned or controlled by any third party. Any use
and development of the Software by ALGT and AIS does not and will
not violate any rights of CMS in the Software.
(g)
No third party is
misappropriating, infringing, diluting or violating any
Intellectual Property contained in the Software.
(h)
The Software was
either (i) developed by CMS; or (ii) developed by
independent contractors who have assigned their rights to CMS
pursuant to written agreements. CMS has licensed to RPW its
interest in the Software for Travel Applications (as defined
in
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Section 5.03(a)).
The Software does not contain any programming code, documentation
or other materials or development environments that embody
Intellectual Property rights of any Person other than CMS, except
for such materials or development environments obtained by CMS from
other Persons who make such materials or development environments
generally available to all interested purchasers or end-users on
standard commercial terms without limitations on use, modifications
or commercialization.
(i)
No one other than CMS and RPW has
the right to use the Software other than the licensees under the
Existing License Agreement.
2.10
Contracts . RPW is not party to any contract other
than the CMS License Agreement.
2.11
Employee Benefits
. RPW has no employees other
than Wilson and does not provide any employee benefits to Wilson
which will not terminate upon the Merger. Wilson represents
that RPW does not owe him any unpaid compensation.
2.12
Litigation
. There are no Legal
Proceedings pending or, to the best of RPW’s knowledge,
threatened against or affecting RPW or any of its properties or
assets, at law or in equity, and there are no disputes between RPW
and any Person of which RPW has notice. There is no
outstanding or, to the best of RPW’s knowledge, threatened
Order of any Governmental Body against, affecting or naming RPW or
affecting any of its assets.
2.13
Compliance with Laws;
Permits .
(a)
RPW is and at all times has been in
compliance with all Laws and Orders promulgated by any Governmental
Body applicable to RPW or to the conduct of the business or
operations of RPW or the use of its assets. RPW has not
received, and does not know of the issuance of, any notices of
violation or alleged violation of any such Law or Order by any
Governmental Body.
(b)
RPW has obtained all Permits
necessary for the conduct of its business as currently
conducted.
2.14
Financial Advisors
. No agent, broker, investment
banker, finder, financial advisor or other person acting on behalf
of RPW or Wilson is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee, directly
or indirectly, in connection with the transactions contemplated by
this Agreement and no Person is entitled to any fee or commission
or like payment in respect thereof based in any way on agreements,
arrangements or understandings made by or on behalf of
RPW.
2.15
Compliance with Other
Instruments, None Burdensome, etc . RPW is not in violation of any term of
its Articles of Incorporation or By-laws, of any term or provision
of any mortgage, indebtedness, indenture, contract, agreement,
instrument, judgment or decree, and is not in violation of any
order, statute, rule or regulation applicable to RPW.
The execution, delivery and performance of and compliance with this
Agreement have not resulted and will not result in any violation
of, or conflict with, or constitute a default under, RPW’s
Articles or By-laws or, in any material respect, result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon
any of the assets of RPW.
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2.16
Investment Intent
. Wilson acknowledges that the
Merger Shares have not been registered under the Securities Act of
1933, as amended (the “Securities Act”), or any state
securities laws and that the Merger Shares will be issued to Wilson
and CMS in reliance upon exemptions from registration. Each
of Wilson and CMS is an accredited investor as defined under the
Securities Act.
2.17
Disclosure; Survival
. To the best knowledge of
RPW, there is no fact which has not been disclosed to ALGT of which
RPW is aware and which materially adversely affects or could
reasonably be anticipated to materially adversely affect the
Intellectual Property rights of RPW. All representations,
warranties, covenants and agreements set forth in this Agreement or
in any writing or certificate delivered in connection with this
Agreement shall survive the execution and delivery of this
Agreement and shall not be affected by any examination made for or
on behalf of ALGT, or the acceptance by ALGT of any certificate or
opinion.
ARTICLE III
Representations and Warranties
of ALGT and AIS
ALGT and AIS do hereby represent and
warrant to Wilson as follows:
3.01
Organization and Standing;
Certificate and By-laws . Each of ALGT and AIS is a corporation
duly organized and existing under, and by virtue of, the laws of
the State of Nevada and is in good standing under such laws.
Each of ALGT and AIS has the requisite corporate power and
authority to own and operate its properties and assets, and to
carry on its business as presently conducted and as proposed to be
conducted.
3.02
SEC Reports
. Since January 1, 2008,
ALGT has filed all forms, reports and documents required to be
filed by ALGT with the Securities and Exchange Commission (the
“SEC”). All such required forms, reports and documents
are referred to herein as the “SEC Reports.” As of
their respective dates, the SEC Reports (i) were prepared in
accordance with the requirements of the Securities Act or the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), as the case may be, and the rules and regulations
of the SEC thereunder applicable to such SEC Reports and
(ii) did not at the time they were filed (or if subsequently
amended or superseded by a filing prior to the date of this
Agreement, then on the date of such subsequent filing) contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
3.03
Authorization and
Enforceability .
Each of ALGT and AIS has all requisite legal and corporate power
and authority to execute and deliver this Agreement, to carry out
and perform its obligations under the terms of this Agreement and
to consummate the transactions contemplated hereby. All
corporate action on the part of ALGT, AIS and their directors and
stockholders necessary for the authorization, execution, delivery
and performance of this
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Agreement by ALGT and AIS, and the
