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


 


3

















 


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 


 


4

















 


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.


 


5

















 


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


 


6

















 


Agreement by ALGT and
AIS, and the performance of all of ALGT’s and AIS’ 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 ALGT and AIS (and assuming the due authorization,
execution and delivery by the other parties hereto), shall constitute a valid
and binding obligation of each of ALGT and AIS, enforceable in accordance with
its terms.


 


ARTICLE
IV


 


The
Merger


 


4.01         Effect of the Merger.  At the
Effective Time of the Merger, (a) RPW and AIS (the “Constituent
Corporations”) shall be merged into a single corporation by RPW merging with
and into AIS (the “Surviving Corporation”), which shall survive the Merger,
pursuant to the provisions of the NRS and New Hampshire Business Corporation
Act; (b) the separate corporate existence of RPW shall cease and the
Surviving Corporation shall become the owner, without transfer, of all rights
and property of the Constituent Corporations; (d) the Surviving
Corporation shall become subject to all the debts and liabilities of the
Constituent Corporations in the same manner as if the Surviving Corporation had
itself incurred them; and (e) the Merger will have all other effects as
set forth in the NRS.


 


4.02         Governance of AIS after Merger.


 


(a)           On the Effective Date of the Merger, the Articles of
Incorporation of AIS shall be the Articles of Incorporation of the Surviving
Corporation.


 


(b)           On the Effective Date of the Merger, the bylaws of
AIS, as in effect on the Effective Date of the Merger, shall remain the bylaws
of the Surviving Corporation until they shall thereafter be duly amended.


 


(c)           On the Effective Date of the Merger, the Directors of
AIS shall be Maurice J. Gallagher, Jr. and [M. Ponder Harrison], who shall
serve until their successors are elected and qualified in accordance with the
bylaws of the Surviving Corporation.


 


4.03         Exchange of Shares.


 


(a)           On the Effective Date of the Merger, ALGT shall issue
a total of 41,450 shares of common stock. 
Of these shares, 7,150 shares shall be issued in the name of CMS at the
direction of RPW and upon receipt by ALGT of an investment letter from CMS in a
form satisfactory to ALGT.  The remaining
34,300 shares (the “Merger Shares”) will be issued in the name of Wilson.


 


(b)           The then issued and outstanding shares of AIS common
stock (owned by ALGT) shall be unaffected by the Merger.


 


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(c)           Upon the Effective Date of the Merger, all outstanding
shares of stock in RPW shall be cancelled and extinguished.


 


(d)           After the Effective Date of the Merger, the sole
holder of the shares of certificates representing RPW Common Stock shall be
entitled to receive upon the surrender of such certificates a certificate
representing the number of shares of ALGT Common Stock to which such
stockholder is entitled as provided by paragraph (a) above.  Until such time as RPW Common Stock
certificates are presented, surrendered and exchanged, each such certificate of
RPW Common Stock shall be deemed for all purposes to evidence ownership of the
number of shares of ALGT Common Stock into which they shall have been converted
pursuant to the Merger.


 


(d)           In connection with the receipt of the ALGT Common
Stock to which he is entitled, Wilson hereby represents and warrants as
follows:  (i) that he is acquiring
the ALGT Common Stock for investment for his own account, not as a nominee or
agent, and not with the view to, or for resale in connection with, any
distribution thereof; (ii) that he understands that the ALGT Common Stock
has not been, and will not be, registered under the Securities Act of 1933, as
amended (the “Securities Act”) by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the stockholder’s representations as expressed herein; and (iii) that
he acknowledges that the ALGT Common Stock must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
such registration is available.


 


ARTICLE V


 


Other
Agreements


 


5.01         Tax Treatment.  Each of ALGT,
AIS and RPW will use its best efforts to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a) of the
Code.  Neither party nor any affiliate
shall take any action that would cause the Merger not to qualify as a
reorganization under Section 368(a) except to the extent that such
action is specifically contemplated by this Agreement.


 


5.02         Employment of Wilson.  ALGT shall
offer employment to Wilson under the terms of an employment agreement (the “Employment
Agreement”) to be entered into in connection with the Merger.


 


5.03         Repurchase Right.


 


(a)           ALGT shall have the right to repurchase the Merger
Shares as hereinafter provided in the event Wilson’s employment with ALGT is
terminated on or before March 15, 2011, as a result of Wilson’s
resignation other than for Good Reason (as defined in the Employment Agreement)
or as a result of a termination by ALGT for cause as provided in the Employment
Agreement.  For clarity, no portion of
the Merger Shares will be subject to repurchase if Wilson’s employment
terminates as a result of his death or disability, as a result of 


 


8

















 


termination by ALGT
without cause or for any reason after March 15, 2011.  The shares issued by ALGT in the Merger in
the name of CMS shall not be subject to repurchase.  The repurchase right shall be exercisable
with respect to all or any portion of the Merger Shares at any time within 180
days following the effective date of Wilson’s termination of employment.  The repurchase right shall be exercisable by
written notice provided by ALGT to Wilson within such time period specifying
the number of Merger Shares to be repurchased and a closing date (not later
than 15 days after the repurchase notice).


 


(b)           The purchase price for all of the Merger Shares shall
be based on the date of termination as follows (subject to adjustment as
provided in paragraph (c) below):


 


	
  Date of Termination

  	
   

  	
  Purchase Price for all of Merger Shares

  	
   

  
	
  On or before March 31, 2009

  	
   

  	
  $

  	
  130,000

  	
   

  
	
  April 1, 2009 – June 30, 2009

  	
   

  	
  $

  	
  260,000

  	
   

  
	
  July 1, 2009 – September 30, 2009

  	
   

  	
  $

  	
  390,000

  	
   

  
	
  October 1, 2009 – December 31, 2009

  	
   

  	
  $

  	
  520,000

  	
   

  
	
  January 1, 2010 – March 31, 2010

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  April 1, 2010 – June 30, 2010

  	
   

  	
  $

  	
  780,000

  	
   

  
	
  July 1, 2010 – September 30, 2010

  	
   

  	
  $

  	
  910,000

  	
   

  
	
  October 1, 2010 – December 31, 2010

  	
   

  	
  $

  	
  1,040,000

  	
   

  
	
  January 1, 2011 – March 15, 2011

  	
   

  	
  $

  	
  1,170,000

  	
   

  



 


If ALGT elects to
purchase only a portion of the Merger Shares, then the purchase price for such
shares shall be the applicable amount determined above multiplied by the
percentage of the total Merger Shares represented by the shares being
repurchased.


 


(c)           Notwithstanding ALGT’s right to repurchase Merger
Shares as provided in this Section, Wilson shall have the right to sell in the
public market a portion of his Merger Shares as follows:  (i) up to 25% of the Merger Shares may
be sold after the date that is six (6) months after the Effective Date of
Merger, and (ii) up to another 25% of the Merger Shares may be sold after
the date that is one (1) year after the Effective Date of the Merger.  There shall be no restriction on sales of
Merger Shares after March 15, 2011. 
Wilson shall be required to report to ALGT all sales of the Merger
Shares, the date of each sale and the net proceeds from each sale of Merger
Shares.  In the event of any sales of
Merger Shares, the purchase price specified in paragraph (b) above shall
be reduced (but not below $10,000) by the net proceeds received by Wilson from
the sale of any Merger Shares prior to the date of repurchase.


 


(d)           At the closing, ALGT shall pay the purchase price to
Wilson in cash upon receipt from Wilson of the Merger Shares being repurchased,
free and clear of any and all Liens.


 


(e)           Until March 15, 2011, the Merger Shares shall
bear a restrictive legend as follows:


 


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“The transfer, pledge or encumbrance of the shares of
stock represented by this certificate is restricted under the terms of an
Agreement and Plan of Merger dated March 15, 2009, a copy of which is on file
at the office of the Company.”


 


Such legend shall not
preclude Wilson from selling Merger Shares to the extent allowed by paragraph (c) above.


 


5.03         Noncompete; Nonsolicitation of Employees.


 


(a)           Wilson agrees that for a period of three (3) years
following the Effective Date of the Merger, Wilson shall not, directly or
indirectly, develop, market, sell, support, consult or advise or otherwise
promote for use in the United States, any product with functionality included
in the Software and in the field of Travel Applications.  For these purposes, “Travel Applications”
shall mean all applications involving the travel industry, including, but not
limited to, air travel, travel agencies, on-line bookings, hotels, rental cars,
travel attractions, tours (e.g., bus
travel, train travel and cruises) and related travel services.


 


(b)           Wilson agrees that for a period of five (5) years
following the Effective Date of the Merger, he will not, directly or indirectly,
on his own behalf or in the service of or on behalf of others, hire any
Prohibited Employee or request or induce any Prohibited Employee to terminate
that person’s employment or relationship with ALGT or to accept employment with
any other person. For these purposes,  “Prohibited Employee” means any
employee, independent contractor or consultant of ALGT or its subsidiaries who
worked for ALGT or its subsidiaries at any time within six (6) months
prior to the Determination Date and the “Determination Date” shall mean any
date as of which a determination is being made as to who is a Prohibited
Employee.


 


(c)           Wilson acknowledges that a breach by him of this Section will
result in irreparable and continuing damage to ALGT and any breach or
threatened breach of the covenants provided in this Section shall be
subject to specific performance by temporary as well as permanent injunction or
any other equitable remedies of any court of competent jurisdiction.


 


(d)           The parties hereto agree that:  (i) Wilson’s covenants and agreements
contained in this Section are not incidental to any employment
arrangement, but rather are incidental to the sale of the business of RPW being
consummated by way of the Merger, (ii) the covenants contained in this Section are
reasonably necessary to protect the interests of ALGT in whose favor said
covenants and agreements are imposed in light of the nature of ALGT’s business
and the parties’ substantial investment in its business; (iii) the
restrictions imposed by this Section are not greater than are necessary
for the protection of ALGT in light of the substantial harm that ALGT will
suffer should Wilson breach any of the provisions of said covenants or
agreements; (iv) the period of restriction contained in this Section is
fair and reasonable in that it is reasonably required for the protection of
ALGT; (v) the geographical area of restriction contained in this Section is
fair and reasonable in that ALGT’s business has been developed on a national
basis; and (vi) the nature, kind and character of the activities Wilson is
prohibited to engage in are reasonable and necessary to protect ALGT.


 


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(e)                                  Wilson acknowledges and agrees that each
of the covenants and agreements contained in this Section is made by him
in consequence of and as a specific inducement to the parties to this Agreement
to enter into the Merger and to protect and preserve the benefit of this
Agreement to all such parties; that each of the covenants is reasonable and
necessary to protect and preserve the benefits received by the parties under
this Agreement; irreparable loss and damage will be suffered by ALGT should
Wilson breach any of such covenants and agreements; each of such covenants and
agreements is separate, distinct and severable not only from the other of such
covenants and agreements but also from the other and remaining provisions of
this Agreement; that the unenforceability of any such covenant or agreement
shall not affect the validity or enforceability of any other such covenant or
agreements or any other provision or provisions of this Agreement; and that, in
addition to other remedies available to it, ALGT shall be entitled to both
temporary and permanent injunctions to prevent a breach or contemplated breach
by Wilson of any of such covenants or agreements.


 


(f)                                    In the event a court of competent
jurisdiction determines that Wilson has breached any of the foregoing covenants
contained in this Section, Wilson shall pay all costs of enforcement of these
provisions, including, but not limited to, court costs and reasonable attorneys’
fees.


 


(g)                                 If the provisions of this Section should
ever be adjudicated to exceed the time, geographic or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall be
deemed reformed in such jurisdiction to the maximum time, geographic or other
limitation permitted by applicable law.


 


5.04                           Bankruptcy of ALGT.  In the event prior to March 15,
2011, ALGT files a voluntary petition for bankruptcy protection or there is an
involuntary bankruptcy petition filed against ALGT which is not dismissed
within sixty (60) days and if Wilson is not employed by ALGT at that time, then
ALGT and AIS shall provide Wilson with a non-exclusive, fully paid, perpetual
license to the Software (as then in existence) for use only in connection with
Wilson’s pursuit of a software development and support business and subject to
the terms of the CMS License Agreement.


 


ARTICLE VI


 


Indemnification by Wilson


 


6.01                           Agreement
to Indemnify.  Subject to the terms
and conditions of this Article VI, Wilson agrees to indemnify, defend and
hold ALGT harmless, on demand from and against any and all demands, claims,
actions, causes of action, assessments, losses, damages, liabilities, costs and
expenses, including without limitation interest, penalties and reasonable
attorneys’ fees and expenses, asserted against, imposed upon or incurred by
ALGT or AIS by reason of, or resulting from or in connection with:  (a)  a breach of any representation or
warranty made by, or covenant of, or other agreements or obligations of RPW or
Wilson which is contained in, or made pursuant to, this Agreement; or (b) any
Undisclosed Liabilities of RPW.  As used
in this Agreement, “Undisclosed Liabilities of RPW” means any liability, debt
or obligation of any nature of RPW as of the date of the Merger, whether
liquidated, contingent, accrued, absolute or otherwise, that


 


11

















 


is not specifically set
forth elsewhere in this Agreement or on the Schedules to this Agreement or, if
so set forth, the amount by which such liabilities, debts or obligations, as
finally determined, exceeds the amount thereof so disclosed.


 


6.02                           Amount
Uncertain.  The fact that the amount
of indemnification cannot be determined or established at the time written
notice or demand is given hereunder to an Indemnitor shall not limit or affect
the right of ALGT to obtain full indemnification to the extent provided herein.


 


6.03                           Condition
to Indemnification.  As a condition
to indemnification hereunder, ALGT or AIS shall be required to provide Wilson
with written notice of the circumstances resulting in the claim for
indemnification, which notice shall be given promptly after first obtaining
actual knowledge thereof. Wilson shall not be obligated to indemnify ALGT or
AIS for any liabilities pursuant to this Article VI for any claim for
which ALGT or AIS has not made a good faith claim against Wilson within three (3) 
years after the date of this Agreement, and any claim not so filed shall be
forever barred.  Further, no claim shall
be asserted under this Article VI unless the liabilities have exceeded
$10,000 on an aggregate basis, in which case, claims for indemnification
hereunder may be made for the entire amount of such liabilities, including the
initial $10,000.


 


6.04                           Offset
Rights.  In the event of any
indemnification claims against Wilson, ALGT shall have the right to offset the
amount thereof against amounts due to Wilson under any employment or other
agreement with ALGT and shall also have the right to require that the proceeds
of any sale of the Merger Shares be applied against any indemnification claim.


 


ARTICLE
VII


 


Definitions


 


7.01                           Certain
Definitions.  For all purposes of
this Agreement, the following terms shall have the meanings indicated below:


 


“Affiliate” of any Person means
any Person that directly or indirectly controls, or is under common control
with, or is controlled by, such Person. 
As used in this definition, “control” (including with its correlative
meanings, “controlled by” and “under common control with”) shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person (whether through ownership
of securities or partnership or other ownership interests, by contract or
otherwise).


 


“AIS” means that
certain Nevada corporation that is a party hereto.


 


“ALGT” means that certain Nevada
corporation that is a party hereto.


 


“Closing Date” or “Closing” shall have the meaning set forth in Section 1.02
hereof.


 


12

















 


“Code “ means the Internal
Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.


 


“Constituent Corporations” means
AIS and RPW.


 


“Effective Date of Merger” shall
have the meaning set forth in Section 1.01 hereof.


 


“Governmental Body” means
any government or governmental or regulatory body thereof, or political
subdivision thereof, whether federal, state, local or foreign, or any agency,
instrumentality or authority thereof, or any court or arbitrator (public or
private).


 


“Knowledge”  Wherever in this Agreement any
representation or warranty is expressed in the terms of “knowledge” or “to the
best of its knowledge” of RPW, such knowledge shall be deemed to refer to
matters which the stockholder, officers and directors of RPW knew or should
have known after diligent inquiry.


 


“Law” means any federal, state,
local or foreign law (including common law), statute, code, ordinance, rule,
regulation or other requirement or guideline.


 


“Legal Proceeding” means any
judicial, administrative or arbitral actions, suits, proceedings (public or private),
claims or governmental proceedings.


 


“Lien” means any lien, pledge,
hypothecation, levy, mortgage, deed of trust, security interest, claim, lease,
charge, option, right of first refusal, easement, or other real estate
declaration, covenant, condition, restriction or servitude, transfer
restriction under any shareholder or similar agreement, encumbrance or any
other restriction or limitation whatsoever.


 


“Order” means any order,
injunction, judgment, decree, ruling, writ, assessment or arbitration award.


 


“Permits” means any approvals,
authorizations, consents, licenses, permits or certificates by any Governmental
Body.


 


“Person” means any individual,
corporation, partnership, firm, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental Body or other entity.


 


“RPW” means that certain New
Hampshire corporation that is a party hereto.


 


“RPW Common Stock” shall have the
meaning set forth in Section 2.02 hereof.


 


“Surviving Corporation” shall
mean AIS.


 


“Undisclosed Liabilities” shall
have the meaning set forth in Section 6.01.


 


13

















 


ARTICLE
VIII


 


General


 


8.01                           Amendments.  This Agreement and the form of any exhibit
attached hereto may be amended in writing by the parties hereto at any time
prior to the Effective Date of the Merger.


 


8.02                           Schedules.  Each Schedule described in this Agreement has
been delivered simultaneously with the execution and pursuant to the terms of
this Agreement.  Any information supplied
to either party in writing between the date hereof and the Closing Date if
accepted by either party shall be made a part of the Schedules hereto and be
deemed to have been disclosed to the other party for all purposes of this
Agreement.


 


8.03                           Governing
Law; Jurisdiction.  This Agreement
and the legal relations between the parties shall be governed by and construed
in accordance with the laws of the State of Nevada.  Each of the parties hereto further agrees
that any action or proceeding brought or initiated in respect of this Agreement
may be brought or initiated in the United States District Court for the State
of Nevada or in any District Court located in Clark County, Nevada, and each of
the parties hereto consents to the exercise of personal jurisdiction and the
placement of venue in any of such courts, or in any jurisdiction allowed by
law, in any such action or proceeding and further consents that service of
process may be effected in any such action or proceeding in the manner provided
in Section 14.065 of the Nevada Revised Statutes or in such other manner
as may be permitted by law.  Each of the undersigned further agrees that
no such action shall be brought against any party hereunder except in one of
the courts above named.


 


8.04                           Notices.  All notices hereunder shall be deemed given
if in writing and delivered personally or sent by telecopy (with written
evidence of receipt), telegram, registered mail or certified mail (return
receipt requested) to the parties at the following addresses (or at such other addresses
as shall be specified by like notice):


 


(a)                                  If
to RPW or Wilson, to:


 


1100 Peaked Hill Road


Bristol, NH 03222


Attention:  Robert P. Wilson, III


Fax #:    


 


(b)                                 If
to ALGT or AIS, to:


 


Allegiant Travel Company


8360 S. Durango Drive


Las Vegas, NV 89113


Attention:  Maurice J. Gallagher, Jr.


Fax #:
702-851-7301


 


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With a copy to:


 


Ellis Funk, P.C.


3490 Piedmont Road, Suite 400


Atlanta,
Georgia   30305


Attn:  Robert B. Goldberg, Esq.


Fax:  (404) 233-2188


 


Any such notice or
communication shall be deemed to have been given as of three days after
posting, one day after next day delivery service or upon personal delivery or
confirmed telecopy.


 


8.05                           No
Assignment.  This Agreement may not
be assigned by operation of law or otherwise without the express written
consent of the other parties.


 


8.06                           Headings.  The descriptive headings of the several
Articles, Sections and paragraphs of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.


 


8.07                           Counterparts;
Fax Signatures.  This Agreement may
be executed in one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more counterparts
have been signed by each of the parties hereto and delivered to each of the
other parties hereto.  The parties agree
that facsimile signatures will have the same force and effect as originals.


 


8.08                           Entire
Agreement.  This Agreement and the
exhibits hereto and other documents delivered or to be delivered pursuant
hereto or incorporated by reference herein, taken together contain the entire
agreement between the parties hereto concerning the transactions contemplated
hereby and supersede all prior agreements or understandings, written or oral
between the parties hereto relating to the subject matter hereof.  No oral representation, agreement or
understanding made by any party hereto shall be valid or binding upon such
party or any other party hereto.


 


8.09                           Further
Assurances. Subject to the terms and conditions expressly set forth herein,
the parties hereto shall use their best commercially reasonable efforts to do
and perform or cause to be done and performed all further acts required hereby,
and in that connection shall execute and deliver all other agreements,
certificates, instruments or documents, as the other party may reasonably
request in order to promote and effectuate the intent and purpose of this
Agreement and the consummation of the merger contemplated hereby.  Neither party hereto shall voluntarily
undertake any course of action inconsistent with the performance or
satisfaction of the requirements applicable to it set forth in this Agreement,
and each party shall promptly do all such acts and take all such measures as may
be appropriate to enable it to perform as early as practicable the obligations
herein required to be performed by it.


 


8.10                           Severability.  The parties intend for this Agreement to be
severable.  It is mutually agreed that in
the event any paragraph, subparagraph, section, subsection, sentence, clause or
phrase hereof shall be construed as illegal, invalid or unenforceable for any
reason, such determination shall in no manner affect the other paragraphs,
subparagraphs, sections, subsections, sentences, clauses or phrases hereof
which shall remain in full force and effect, as if


 


15

















 


the said paragraph,
subparagraph, section, subsection, sentence, clause or phrase so construed as
illegal, invalid or unenforceable were not originally a part hereof, and the
enforceability hereof as a whole will not be affected.  The parties hereby declare that they would
have agreed to the remaining parts hereof if they had known that such parts
hereof would be construed as illegal, invalid or unenforceable.


 


8.11                           Interpretive
Matters. No provision of this Agreement shall be interpreted in favor of,
or against, any of the parties hereto by reason of the extent to which any such
party or its counsel participated in the drafting thereof or by reason of the
extent to which any such provision is inconsistent with any prior draft hereof
or thereof.


 


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BLANK]


 


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IN WITNESS WHEREOF, each
of the parties hereto has caused this Agreement to be executed on its behalf by
its officers thereunto duly authorized, all as of the day and year first above
written.


 


	
   

  	
  ALLEGIANT TRAVEL COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maurice J.
  Gallagher, Jr.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALLEGIANT
  INFORMATION SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maurice J.
  Gallagher, Jr.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RPW CONSOLIDATED
  INFORMATION SYSTEMS, INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert P.
  Wilson, III

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Robert
  P.Wilson, III

  
	
   

  	
  ROBERT P.
  WILSON, III

  



 


17

















 


SCHEDULE 2.05


 


	
  Legal Fees owed
  to Ellis Funk, P.C.

  	
   

  	
  $

  	
  7,294.00

  	
   

  



 


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SCHEDULE 2.09(a)


 


License Agreement to Pinnacle Airlines


 


19