AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is dated as of
March 12, 1988, and is entered into by and between WILLIS LEASE FINANCE
CORPORATION, a California corporation ("Willis-California"), and WILLIS LEASE
FINANCE CORPORATION, a Delaware corporation ("Willis-Delaware"). Willis-
California and Willis-Delaware are hereinafter sometimes collectively referred
to as the "Constituent Corporations".
RECITALS
A. Willis-California desires to merge with and into Willis-Delaware and
Willis-Delaware desires to merge with Willis-California, all upon the terms and
subject to the conditions of this Merger Agreement.
B. Willis-California was incorporated in 1985 and is a corporation duly
organized and existing under the laws of the State of California. Its
authorized capital stock consists of 5,000,000 shares of Preferred Stock, no
par value per share, and 20,000,000 shares of Common Stock, no par value per
share (the "Willis-California Common Stock"), of which no shares of Preferred
Stock and 7,258,098 shares of Common Stock were issued and outstanding on
April 30, 1998.
C. Willis-Delaware was incorporated on March 12, 1998. Its authorized
capital stock consists of 5,000,000 shares of Preferred Stock, par value $0.01
per share, and 20,000,000 shares of Common Stock, par value $0.01 per share
(the "Willis-Delaware Common Stock"), of which no shares of Preferred Stock and
100 shares of Common Stock were issued and outstanding on April 30, 1998. All
outstanding shares of Willis-Delaware Common Stock shares are held by and in
the name of Willis-California.
D. The Board of Directors of Willis-California has determined that, for
the purpose of effecting the reincorporation of Willis-California in the State
of Delaware, it is advisable and in the bests interests of Willis-California
and its shareholders that Willis-California merge with and into Willis-Delaware
upon the terms and conditions herein provided.
E. The Board of Directors of Willis-California has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby and
recommending that the existing shareholders of Willis-California (individually,
a "Shareholder", and collectively, the "Shareholders") approve this Merger
Agreement and the transactions contemplated hereby;
F. The Board of Directors of Willis-Delaware has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby. The
sole shareholder of Willis-Delaware has approved this Merger Agreement and the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto agree as follows:
ARTICLE I
MERGER
Section 1.1. THE MERGER. In accordance with the provisions of this
Merger Agreement, the California General Corporation Law (the "CGCL") and the
Delaware General Corporation Law (the "DGCL"), Willis-California shall be
merged with and into Willis-Delaware (the "Merger"), the separate existence of
Willis-California shall cease and Willis-Delaware shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corporation") and
shall continue its corporate existence under the laws of the State of Delaware.
The name of the Surviving Corporation shall be "Willis Lease Finance
Corporation".
Section 1.2. FILING AND EFFECTIVENESS. The Merger shall become
effective when the following actions have been completed:
(a) This Agreement and the Merger shall have been adopted
and approved by the shareholders of Willis-California in accordance with the
requirements of the CGCL;
(b) 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;
(c) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the CGCL shall have
been filed with the Secretary of State of the State of California.
The date and time when the Merger shall become effective is herein
referred to as the "Effective Date".
Section 1.3. EFFECT OF THE MERGER. Upon the Effective Date, the
separate existence of Willis-California shall cease and Willis-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date;
(ii) shall be subject to all actions previously taken by its and Willis-
California's Board of Directors; (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of Willis-California in the
manner more fully set forth in Section 259 of the DGCL; (iv) shall continue to
be subject to all of the debts, liabilities and obligations of Willis-Delaware
as constituted immediately prior to the Effective Date; and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
Willis-California in the same manner as if Willis-Delaware had itself incurred
them, all as more fully provided under the applicable provisions of the DGCL
and the CGCL.
2
ARTICLE II
CHARTER DOCUMENTS; DIRECTORS AND OFFICERS
Section 2.1. CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate
of Incorporation and Bylaws of Willis-Delaware as in effect immediately prior
to the Effective Date shall continue in full force and effect as the
Certificate of Incorporation and Bylaws of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
Section 2.2. DIRECTORS AND OFFICERS. The directors and officers of
Willis-Delaware immediately prior to the Effective Date shall be the directors
and officers of the Surviving Corporation until their respective successors are
duly elected or appointed and qualified or until as otherwise provided by law,
or by the Certificate of Incorporation and Bylaws of the Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
Section 3.1. WILLIS-CALIFORNIA COMMON STOCK. Upon the Effective Date,
each share of Willis-California Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted automatically into one (1) fully paid and nonassessable, issued and
outstanding share of Common Stock, par value $0.01 per share, of the Surviving
Corporation.
Section 3.2. WILLIS-CALIFORNIA OPTIONS AND STOCK PURCHASE RIGHTS.
(a) Upon the Effective Date, the Surviving Corporation
shall assume and continue the stock option plans and all other employee benefit
plans of Willis-California and all of such plans shall become the lawful
obligations of the Surviving Corporation and shall be implemented and
administered in the same manner and without interruption until the same are
amended or otherwise lawfully altered or terminated. Each outstanding and
unexercised option or other right to purchase Willis-California Common Stock
shall become an option or right to purchase the Surviving Corporation's Common
Stock on the basis of one share of the Surviving Corporation's Common Stock for
each share of Willis-California Common Stock issuable pursuant to any such
option or stock purchase right, on the same terms and conditions and at an
exercise price per share equal to the exercise price applicable to any such
Willis-California option or stock purchase right.
(b) A number of shares of the Surviving Corporation's
Common Stock shall be reserved for issuance upon the exercise of options and
stock purchase rights equal to the number of shares of Willis-California Common
Stock so reserved immediately prior to the Merger.
3
Section 3.3. WILLIS-DELAWARE COMMON STOCK. Upon the Effective Date,
each share of Willis-Delaware Common Stock, par value $0.01 per share, issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by Willis-Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
Section 3.4. EXCHANGE OF CERTIFICATES. After the Effective Date, each
holder of an outstanding certificate representing shares of Willis-California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Willis-Delaware or its transfer agent, and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock
into which the surrendered shares were converted as herein provided. Unless
and until so surrendered, each outstanding certificate theretofore representing
shares of Willis-California Common Stock shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's Common Stock into
which such shares of Willis-California Common Stock were converted in the
Merger.
The registered owner on the books and records of Willis-California of any
shares of stock represented by such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to Willis-Delaware its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of Common Stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Willis-California so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws, or other such additional legends as agreed upon by the holder and the
Surviving Corporation.
If any certificate for shares of Willis-Delaware stock is to be issued in
a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance thereof that the
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 pay to
Willis-Delaware or its transfer agent any transfer or other taxes payable by
reason of issuance of such new certificates in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of Willis-Delaware that such tax has been paid or is not payable.
ARTICLE IV
GENERAL
Section 4.1. COVENANTS OF WILLIS-DELAWARE. Willis-Delaware covenants
and agrees that it will, on or before the Effective Date:
4
(a) qualify to do business as a foreign corporation in the
State of California and in connection therewith irrevocably appoint an agent
for the service of process as required under the provisions of Section 2105 of
the CGCL;
(b) file any and all documents with the California
Franchise Tax Board necessary for the assumption by Willis-Delaware of all of
the Franchise Tax liabilities of Willis-California; and
(c) take such other actions as may be required by the
CGCL.
Section 4.2. FURTHER ASSURANCES. From time to time, as and when
required by Willis-Delaware or by its successors and assigns, there shall be
executed and delivered on behalf of Willis-California such deeds and other
instruments, and there shall be taken or caused to be taken by Willis-
California and Willis-Delaware such further and other actions, as shall be
appropriate or necessary in order to vest or perfect in Willis-Delaware title
to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Willis-California, and
otherwise to carry out the purposes and intent of this Agreement, and the
officers and directors of Willis-Delaware are fully authorized in the name and
on behalf of Willis-California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
Section 4.3. ABANDONMENT. At any time before the Effective Date, this
Agreement may be terminated and the Merger contemplated hereby may be abandoned
by the Board of Directors of either Willis-California or of Willis-Delaware, or
of both, notwithstanding approval of this Agreement by the shareholders of
Willis-California, by the sole shareholder of Willis-Delaware, or by both.
Section 4.4. AMENDMENT. The Board of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretaries of State of the
States of Delaware and California, provided that an amendment made subsequent
to the adoption of this Agreement by the stockholders of either Constituent
Corporation shall not: (a) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation; (c) alter or change any of the
terms or conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series of capital stock of any
Constituent Corporation.
Section 4.5. GOVERNING LAW. Except as required by California law, this
Merger Agreement shall be governed by the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable Delaware
principles of conflicts of law.
Section 4.6. 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.
5
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Willis Lease Finance Corporation, a
Delaware corporation, and Willis Lease Finance Corporation, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
WILLIS LEASE FINANCE CORPORATION,
a Delaware corporation
By /s/ Charles F. Willis
-----------------------------------
Charles F. Willis, IV, President
ATTEST:
/s/ Lynn Mailliard
- -----------------------------------
Lynn Mailliard, Corporate Secretary
WILLIS LEASE FINANCE CORPORATION,
a California corporation
By /s/ James D. McBride
------------------------------------
James D. McBride, Executive Vice
President
ATTEST:
/s/ Lynn Mailliard
- -----------------------------------
Lynn Mailliard, Secretary
6