EXCHANGE AGREEMENT
Between
SEAHAWK DEEP OCEAN TECHNOLOGY, INC.
A Colorado Corporation
And
SEAHAWK, INC.
An Alabama Corporation
November 3, 1995
TABLE OF CONTENTS
Section Page
RECITALS 1
I EXCHANGE OF SECURITIES 1
1.1 Issuance of Shares 1
1.2 Issuance of Additional Shares 1
II REPRESENTATIONS AND WARRANTIES OF SEAHAWK 2
2.1 Organization 2
2.2 Capital 2
2.3 Subsidiaries 2
2.4 Director and Officers 2
2.5 Financial Statements 2
2.6 Absence of Changes 2
2.7 Absence of Undisclosed Liabilities 2
2.8 Tax Returns 3
2.9 Investigation of Financial Condition 3
2.10 Compliance with Laws 3
2.11 Litigation 3
2.12 Authority 3
2.13 Ability to Carry Out Obligations 3
2.14 Full Disclosure 4
2.15 Assets 4
2.16 Material Contracts 4
2.17 Indemnification 4
2.18 Trade Names and Rights 4
III REPRESENTATIONS AND WARRANTIES OF SDOT 4
3.1 Organization 4
3.2 Capital 5
3.3 Subsidiaries 5
3.4 Directors and Officers 5
3.5 Financial Statements 5
3.6 Absence of Changes 5
3.7 Absence of Undisclosed Liabilities 5
3.8 Tax Returns 5
3.9 Investigation of Financial Condition 6
3.10 Compliance with Laws 6
3.11 Litigation 6
3.12 Authority 6
3.13 Ability to Carry Out Obligations 6
3.14 Validity of SDOT Shares 6
3.15 Full Disclosure 6
3.16 Material Contracts 7
3.17 Indemnification 7
IV COVENANTS 7
4.1 Investigative Rights 7
4.2 Conduct of Business 7
4.3 Registration Statement 7
4.4 Vessel "Seahawk" 7
4.5 Right of Rescission 8
4.6 Tax Refunds 8
V CONDITIONS PRECEDENT TO SDOT'S PERFORMANCE 8
5.1 Conditions 8
5.2 Accuracy of Representations 8
5.3 Performance 8
5.4 Absence of Litigation 8
5.5 Acceptance by Seahawk Subsidiaries 9
VI CONDITIONS PRECEDENT TO SEAHAWK'S PERFORMANCE 9
6.1 Conditions 9
6.2 Accuracy of Representations 9
6.3 Performance 9
6.4 Absence of Litigation 9
6.5 Current Status 9
6.6 Acceptance by Seahawk Subsidiaries 9
6.7 Valid Registration Statement 9
VII CLOSING 10
7.1 Closing Date 10
7.2 Closing Documents 10
VIII MISCELLANEOUS 11
8.1 Captions and Headings 11
8.2 No Oral Change 11
8.3 Non-Waiver 11
8.4 Time of Essence 11
8.5 Entire Agreement 11
8.6 Choice of Law 11
8.7 Counterparts 12
8.8 Notices 12
8.9 Binding Effect 12
8.10 Mutual Cooperation 12
8.11 Announcements 12
8.12 Expenses 12
8.13 Survival of Representations and Warranties 12
8.14 Exhibits 13
Signatures 13
(PS195.cp)
EXCHANGE AGREEMENT
RECITALS
THIS EXCHANGE Agreement is made this 3rd day of November 1995, by and
between Seahawk Deep Ocean Technology, corporation ("SDOT") , and Seahawk,
Inc., ("Seahawk"), an Alabama corporation ("Seahawk").
WHEREAS, SDOT desires to acquire all of the issued and outstanding shares
of common stock of Seahawk in exchange for an aggregate of 2,400,000 of
authorized but unissued shares of the common stock, no par value, of SDOT (the
"Common Stock") (the "Exchange Offer"); and
WHEREAS, Seahawk desires to assist SDOT in a business combination which
will result in the shareholders of Seahawk, as a result of this Agreement,
owning together up to approximately 10% of the then issued and outstanding
shares of SDOT's Common Stock, and SDOT holding up to 100% of the issued and
outstanding shares of Seahawk's common stock;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein,
THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all of the terms and conditions of
this Agreement, SDOT agrees to offer 4,800 Shares of Common Stock for each share
of Seahawk common stock issued and outstanding, or a total of 2,400,000 shares
of Common Stock. The Common Stock will be issued directly to the shareholders of
Seahawk which accept the Exchange Offer.
1.2 Issuance of Additional Shares. If at any time during the twelve
months following the effective date of the Registration Statement covering the
resale of the shares being issued hereunder, the Board of Directors or the
Shareholders of SDOT approve of any reverse split or plan of reorganization
which would have the effect of a reverse split, and the price per share of
SDOT common stock shall fall below $.25 per share after adjustment for the
reverse split, then SDOT shall issue enough shares to the Seahawk
Shareholders to compensate them for the value of the difference between the
lowest value after the reverse split during the 24 months and $.25 per share.
For example, if during the two year period SDOT effected a 1 for 3
reverse stock split and after the split the stock dropped to $.60 per share,
SDOT would be obligated to issue an additional 600,000 (pre-split) shares
based on the following calculations:
2,400,000 x $.25 = $600,000
2,400,000 x $.20 = $480,000
Shortfall - $120,000 divided by $.20 = 600,000 shares
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SEAHAWK
Seahawk hereby represents and warrants to SDOT that:
2.1 Organization. Seahawk is a corporation duly organized, validly
existing, and in good standing under the laws of Alabama, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good
standing in each of the states where its business requires qualification.
2.2 Capital. The authorized capital stock of Seahawk consists of 500
shares of Common Stock, $.0l par value, of which 500 shares are currently
issued and outstanding. All of the issued and outstanding shares of Seahawk
are duly and validly issued, fully paid, and nonassessable. There are no
outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities, or other agreements or commitments
obligating Seahawk to issue or to transfer from treasury any additional
shares of its capital stock-of any class.
2.3 Subsidiaries. As of the date of this Agreement, Seahawk does not
have any subsidiaries or own any interest in any other enterprise.
2.4 Directors and Officers. Exhibit 2.4 to this Agreement, the text
of which is hereby incorporated herein by reference, contains the names and
titles of all directors and officers of Seahawk as of the date of this
Agreement.
2.5 Financial Statements. Exhibit 2.5 to this Agreement, the text of
which is hereby incorporated herein by reference, includes the audited
financial statement of Seahawk as of December 31, 1994, and for the period
then ended. The financial statement fairly presents the financial position
of Seahawk as of the date of the balance sheet included in the financial
statement, and the results of operation for the period indicated.
2.6 Absence of Changes. Since the date of the most recent financial
statements included in Exhibit 2.5, there has not been any change in the
financial condition or operations of Seahawk, except for changes in the
ordinary course of business, which changes have not in the aggregate, been
materially adverse.
2.7 Absence of Undisclosed Liabilities. As of the date of its most
recent balance sheet included in Exhibit 2.5, Seahawk did not have any
material debt, liability, or obligation of any nature that are not reflected
in the balance sheet.
2.8 Tax Returns. Seahawk has filed all federal, state and local tax
returns required by law and has paid all taxes, assessments and penalties
due and payable. The provisions for taxes, if any, reflected in the balance
sheet included in Exhibit 2.5 are adequate for any and all federal, state,
county and local taxes for the periods ending on the date of the balance
sheet and for all prior periods, whether or not disputed. There are no present
disputes as to taxes of any nature payable by Seahawk.
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, SDOT
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of Seahawk. Seahawk shall make
available to SDOT and/or its attorneys all books and records of Seahawk. If
the transaction contemplated hereby is not completed, all documents received
by SDOT and/or its attorneys shall be returned to Seahawk and all information
so received shall be treated as confidential.
2.10 Compliance with Laws. Seahawk has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
(including, without limitation, any applicable building, zoning or other law,
ordinance or regulation) affecting its properties or the operation of its
business, except for matters which would not have a material affect on Seahawk
or its properties.
2.11 Litigation. Seahawk is not a party to any suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation pending or, to the best knowledge of Seahawk, threatened
against or affecting Seahawk or its business, assets or financial condition,
except for matters which would not have a material affect on Seahawk or its
properties. Seahawk is not in default with respect to any order, writ,
injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality applicable to it. Seahawk is not
engaged in any lawsuits to recover any material amount of monies due to it.
2.12 Authority. The Board of Directors of Seahawk has authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein, and upon obtaining shareholder approval, Seahawk will
have full power and authority to execute, deliver and perform this Agreement
and this Agreement will be a legal, valid and binding obligation of Seahawk,
enforceable in accordance with its terms and conditions, except as may be
limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally.
2.13 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by Seahawk and the performance by Seahawk of its obligations
hereunder in the time and manner contemplated will not cause, constitute or
conflict with or result in (a) any breach or violation of any of the pro-
visions of or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, by-laws, or other agreement
or instrument to which Seahawk is a party, or by which it may be bound, nor
will any consents or authorizations of any party other than those hereto be
required, (b) an event that would permit any party to any agreement or in-
strument to terminate it or to accelerate the maturity of any indebtedness or
other obligation of Seahawk, or (c) an event that would result in the
creation or imposition of any lien, charge, or encumbrance on any asset of
Seahawk.
2.14 Full Disclosure. None of the representations and warranties made
by Seahawk herein, or in any exhibit, certificate or memorandum furnished or to
be furnished by Seahawk, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
2.15 Assets. Seahawk has good and, marketable title to all of its
property and such property is held free and clear of any liens and encum-
brances. Specifically, Seahawk holds title to the vessel "Seahawk", official
number 5816741, including all of her tackle, navigation equipment, tenders
and such other equipment which may exist on board the vessel, with the ex-
ception of equipment on board the vessel belonging to SDOT.
2.16 Material Contracts. Except as listed in Exhibit 2.16 hereto, or
as otherwise disclosed herein, Seahawk has no material contracts to which it
is a party or by which it is bound.
2.17 Indemnification. Seahawk agrees to defend and hold SDOT harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties, and reasonable attorney fees, that it shall incur or
suffer, which arise out of, result from or relate to any breach of, or
failure by Seahawk to perform any of its respective representations,
warranties, covenants and agreements in this Agreement or in any exhibit or
other instrument furnished or to be furnished by Seahawk under this Agreement.
2.18 Trade Names and Rights. Seahawk does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trade-
marks, trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications. No person owns any
trademark, trademark registration or application, service xxxx, trade name,
copyright, or copyright registration or application the use of which is
necessary or contemplated in connection with the operation of Seahawk's
business. Seahawk's shareholders, and specifically Xxxx Xxxxxx and Xxxx
Xxxxx, hereby agree not to compete with SDOT for the sole and exclusive right
to the use of the name "Seahawk".
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SDOT
SDOT represents and warrants to Seahawk that:
3.1 Organization. SDOT is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good stand-
ing in each of the states where its business requires qualification.
3.2 Capital. The authorized capital stock of SDOT consists of
30,000,000 shares of no par value Common Stock of which approximately 22,287,060
shares of Common Stock are currently issued and outstanding, and 60,000,000
shares of no par value Preferred Stock, of which 200,000 shares are issued or
outstanding. All of the issued and outstanding shares are duly and validly
issued, fully paid and nonassessable. Except as listed on Exhibit 3.2, there
are no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating SDOT to issue or to
transfer from treasury any additional shares of its capital stock of any
class.
3.3 Subsidiaries. SDOT does not have any subsidiaries or own any
interest in any other enterprise (whether or not such enterprise is a
corporation) except as shown on Exhibit 3.3.
3.4 Directors and Officers. Exhibit 3.4, annexed hereto and hereby
incorporated herein by reference, contains the names and titles of all directors
and officers of SDOT as of the date of this Agreement.
3.5 Financial Statements. Exhibit 3.5, annexed hereto and hereby
incorporated herein by reference, consists of the 1993 and 1994 10-K's and the
first and second quarter 1995 10-Q's filed with the Securities and Exchange
Commission by SDOT, which contain the balance sheets of SDOT and the related
statements of income and retained earnings for the periods then ended. The
financial statements have been prepared in accordance with generally accepted
accounting principles and practices consistently followed by SDOT throughout
the period indicated, and fairly present the financial position of SDOT as of
the dates of the balance sheets included in the financial statements, and the
results of operations for the periods indicated.
3.6 Absence of Changes. Since June 30, 1995, there has not been any
change in the financial condition or operations of SDOT, except for changes in
the ordinary course of business, which changes have not in the aggregate been
materially adverse.
3.7 Absence of Undisclosed Liabilities. As of June 30, 1995, SDOT did
not have any material debt, liability, or obligation of any nature, whether
accrued, absolute, contingent, or otherwise, and whether due or to become due,
that is not reflected in SDOT's balance sheet as of June 30, 1995.
3.8 Tax Returns. Within the times and in the manner prescribed by
law, SDOT has filed all federal, state and local tax returns required by law
and has paid all taxes, assessments and penalties due and payable. The pro-
visions for taxes, if any, reflected in those balance sheets included in Ex-
hibit 3.5 are adequate for any and all federal, state, county and local taxes
for the periods ending on the date of those balance sheets and for all prior
periods, whether or not disputed. There are no present disputes as to taxes
of any nature payable by SDOT.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, Seahawk
shall have the opportunity to meet with SDOT's accountants and attorneys to
discuss the financial condition of SDOT. SDOT shall make available to Seahawk
all books and records of SDOT.
3.10 Compliance with Laws. SDOT has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
(including, without limitation, any applicable, building, zoning, or other law,
ordinance, or regulation) affecting its properties or the operation of its
business.
3.11 Litigation. Except as disclosed in the documents referred to in
paragraph 3.5, SDOT is not a party to any suit, action, arbitration, or legal,
administrative, or other proceeding, or governmental investigation pending or,
to the best knowledge of SDOT, threatened against or affecting SDOT or its
business, assets, or financial condition SDOT is not in default with respect to
any order, writ, injunction, or decree of any federal, state, local, or foreign
court, department agency, or instrumentality. SDOT is not engaged in any legal
action to recover moneys due to it.
3.12 Authority. The Board of Directors of SDOT has authorized the
execution of this Agreement and the transactions contemplated herein, and SDOT
has full power and authority to execute, deliver and perform this Agreement and
this Agreement is the legal, valid and binding obligation of SDOT, is en-
forceable in accordance with its terms and conditions, except as may be
limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally. The approval of SDOT's shareholders is not
necessary for this transaction.
3.13 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by SDOT and the performance by SDOT of its obligations hereunder
will not cause, constitute,, or conflict with or result in (a) any, breach or
violation of any of the provisions of or constitute a default under any license,
indenture, mortgage, charter, instrument, certificate of incorporation, bylaw,
or other agreement or instrument to which SDOT is a party, or by which it may be
bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would permit any party to any agreement or
instrument to terminate it or to accelerate the maturity of any indebtedness or
other obligation of SDOT, or (c) an event that would result in the creation or
imposition of any lien, charge, or encumbrance on any asset of SDOT.
3.14 Validity of SDOT Shares. The shares of SDOT Common Stock to be
delivered pursuant to this Agreement, when issued in accordance with the
provisions of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
3.15 Full Disclosure. None of the representations and warranties made
by SDOT herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by SDOT, or on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact the omission of which
would be misleading.
3.16 Material Contracts. Except as disclosed in the documents referred
to in paragraph 3.5 above, and except as otherwise disclosed in this Agreement,
SDOT has no material contracts to which it is a party or by which it is, bound.
3.17 Indemnification. SDOT agrees to indemnify, defend and hold Seahawk
and the Seahawk shareholders harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that they shall incur or suffer, which arise out of, result from
or relate to any breach of, or failure by SDOT to perform any of its
representations, warranties, covenants or agreements in this Agreement or in any
schedule, certificate, exhibit or other instrument furnished or to be furnished
by SDOT under this Agreement.
ARTICLE IV
COVENANTS
4.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representa-
tives, full access during normal business hours and upon reasonable advance
written notice to all of each party's properties, books, contracts, commit-
ments, and records for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party's affairs
as the other party may reasonably request.
4.2 Conduct of Business. Prior to the Closing, SDOT and Seahawk shall
each conduct its business in the normal course, and shall not sell, pledge, or
assign any assets, without the prior written approval of the other party, except
in the regular course of business. Neither SDOT or Seahawk shall amend its
Articles of Incorporation or Bylaws, declare dividends, redeem or sell stock or
other securities, incur additional or newly-funded liabilities, acquire or
dispose of fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or dis-
charge any balance sheet receivable for less than its stated amount, pay more
on any liability than its stated amount, or enter into any, other transaction
other than in the regular course of their business.
4.3 Registration Statement. SDOT agrees that it will use its best
efforts to file a Registration Statement on Form SB-2 covering the shares being
issued pursuant to this Agreement as soon as possible after the signing of this
Agreement, and to use its best efforts to have such Registration Statement
declared effective by the Securities and Exchange Commission, and to keep such
Registration Statement current and effective for a period of two years from the
date the shares are issued.
4.4 Vessel "Seahawk". SDOT agrees that until such time as the Regis-
tration Statement referred to in paragraph 4.3 has been declared effective by
the SEC, it will not sell, transfer, assign, pledge or hypothecate the vessel
"Seahawk". In addition, during this same period of time, SDOT shall maintain
the vessel in good shape and maintain protection and indemnity insurance with a
minimum valuation of $1,000,000 and hull insurance with a minimum valuation of
$600,000. SDOT further agrees that until such time as the Registration State-
ment has been declared effective, it will not take any actions which would in
any way impair or lessen the value of the Seahawk, Inc. corporate entity or
incur any debt in Seahawk, Inc.
4.5 Right of Rescission. If the Registration Statement referred to in
paragraph 4.3 above has not been declared effective by the SEC on or before May
1, 1996, the shareholders of Seahawk will have the right to rescind this
transaction according to the terms set forth in this paragraph. Such right must
be exercised by providing written notice to SDOT on or before November 1, 1996.
The holders of at least 1,200,000 shares must sign the notice. In the event of
such rescission, all 2,400,000 shares of Common Stock issued to Shareholders
will be returned to SDOT with endorsements and medallion signature guarantees
and upon receipt of such certificates, SDOT will return the 500 shares of
Seahawk, Inc. to the Seahawk, Inc. shareholders.
4.6 Tax Refunds. In the event Seahawk receives any income tax refunds
for taxes paid prior to the Closing, such refunds will be returned to the
shareholders of Seahawk, Inc.
ARTICLE V
CONDITIONS PRECEDENT TO SDOT'S PERFORMANCE
5.1 Conditions. SDOT's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article V. SDOT may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by SDOT of any other condition of or any of SDOT's
other rights or remedies, at law or in equity, if Seahawk shall be in default
of any of their representations, warranties, or covenants under this Agreement.
5.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Seahawk in this Agree-
ment or in any written statement that shall be delivered to SDOT by Seahawk
under this Agreement shall be true and accurate on and as of the Closing
Date as though made at that time.
5.3 Performance. Seahawk shall have performed, satisfied, and com-
plied with all covenants, agreements, and conditions required by this Agree-
ment to be performed or complied with by it, on or before the Closing Date.
5.4 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been in-
stituted or threatened against Seahawk on or before the Closing Date.
5.5 Acceptance by Seahawk Shareholders. The holders of an aggregate
of not less than 80% of the issued and outstanding shares of common stock of
Seahawk shall have agreed to exchange their shares for shares of SDOT Common
Stock.
ARTICLE VI
CONDITIONS PRECEDENT TO SEAHAWK'S PERFORMANCE
6.1 Conditions. Seahawk's obligations hereunder shall be subject to
the satisfaction, at or before the Closing, of all the conditions set forth
in this Article VI. Seahawk may waive any or all of these conditions in
whole or in part without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by Seahawk of any other condition of
or any of Seahawk's rights or remedies, at law or in equity, if SDOT shall be
in default of any of its representations, warranties, or covenants under this
Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by SDOT in this Agreement
or in any written statement that shall be delivered to Seahawk by SDOT under
this Agreement shall be true and accurate on and as of the Closing Date as
though made at that time.
6.3 Performance. SDOT shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the Closing Date.
6.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been in-
stituted or threatened against SDOT on or before the Closing Date.
6.5 Current Status. SDOT shall have prepared and filed with the
Securities and Exchange Commission all periodic reports required by Section 15
(d) under the Securities Exchange Act of 1934.
6.6 Acceptance by Seahawk Shareholders. The holders of an aggregate
of not less than 80% of the issued and outstanding shares of common stock of
Seahawk shall have agreed to exchange their shares for shares of SDOT Common
Stock.
6.7 Legal Opinion. Seahawk shall have received an opinion of Xxx
Xxxxxx, P.C. as required by Section 7.1 hereof, dated as of the Closing Date.
ARTICLE VII
CLOSING
7.1 Closing Date. This transaction shall close not later than Novem-
ber 3, 1995.
7.2 Closing Documents. The Closing of this transaction shall be
held at the offices of Xxx Xxxxxx, P.C., 000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, or such other place as shall be mutually agreed upon,
on such date as shall be mutually agreed upon by the parties. At the Closing:
(a) Seahawk shall deliver Letters of Acceptance and the
certificates representing the shares of Seahawk held by the shareholders of
Seahawk accepting the Exchange offer ("Accepting Shareholders") to SDOT, and
such certificates will be duly endorsed.
(b) Each Accepting Shareholder shall receive a certificate or
certificates representing the number of shares of SDOT Common Stock for
which the shares of Seahawk common stock shall have been exchanged.
(c) SDOT shall deliver a signed consent and/or Minutes of the
Directors of SDOT approving this Agreement and each matter to be approved by
the Directors of SDOT under this Agreement.
(d) SDOT shall deliver the opinion of its counsel, Xxx Xxxxxx,
P.C., dated the Closing Date, substantially in the form of Exhibit 6.7 hereto.
(e) Seahawk shall deliver a signed Consent or Minutes of the
Directors of Seahawk approving this Agreement and each matter to be approved by
the Directors of Seahawk under this Agreement.
(f) Seahawk shall deliver the opinion of its counsel, Xxxx Xxxxxx,
P.A., dated the Closing Date, in form and substance satisfactory to counsel for
Seahawk, to the effect that:
(1) Seahawk is a corporation duly organized, validly exist-
ing and in good standing under the laws of the State of Alabama.
(2) Seahawk's authorized capital stock is as set forth in
Section 2.2 hereof.
(3) The execution and consummation of this Agreement have
been duly authorized and approved by Seahawk's Board of Directors and
consummation of this Agreement will not constitute or result in any breach or
default of the character described in Section 2.13 hereof of which counsel has
knowledge.
(4) Counsel has no knowledge of any liabilities or obliga-
tions of the type described in Section 2.7 hereof, any litigation, proceeding or
investigation of the type described in Section 2.11 hereof, or any defects, in
title or mortgages, encumbrances or liens of the type described in Section 2.15
hereof except as set, forth in Exhibit 2.15.
(5) The shares of Seahawk's common stock to be exchanged
pursuant to this Agreement are duly and validly authorized and issued, and will
be fully paid and nonassessable.
ARTICLE VIII
MISCELLANEOUS
8.1 Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
8.2 No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but it can be changed by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
8.3 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any-party to in-
sist in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants, or conditions, (ii) the acceptance
of performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
8.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
8.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings.
8.6 Choice of Law. This Agreement and its application shall be gov-
erned by the laws of the State of Colorado.
8.7 Counterparts. This Agreement may be executed simultaneously 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.
8.8 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
SDOT:
Seahawk Deep ocean Technology, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Seahawk:
Seahawk, Inc.
X.X. Xxx 000000
Xxxxx, Xxxxxxx 00000
8.9 Binding Effect. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
8.10 Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
8.11 Announcements. SDOT and Seahawk will consult and cooperate with
each other as to the timing and content of any announcements of the transactions
contemplated hereby to the general public or to employees, customers or
suppliers.
8.12 Expenses. Each party will pay its own legal, accounting and any
other out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is consummated.
8.13 Survival of Representations and Warranties. The representations,
warranties, covenants and agreements of the parties set forth in this Agreement
or in any instrument, certificate, opinion, or other writing providing for in
it, shall survive the Closing irrespective of any investigation made by or on
behalf of any party.
8.14 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for herein above, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
THE UNDERSIGNED BEING DULY AUTHORIZED TO EXECUTE THIS INSTRUMENT, HAVE
CAREFULLY READ THE FOREGOING AGREEMENT, FULLY UNDERSTAND IT, HAVE RECEIVED THE
ADVICE OF AN ATTORNEY REGARDING THIS MATTER (OR, AFTER BEING ADVISED TO SEEK
COUNSEL, HAVE DECLINED TO DO), AND HAVE KNOWINGLY AND VOLUNTARILY ENTERED INTO
THIS AGREEMENT INTENDING TO BE LEGALLY BOUND.
WITNESSES:
SEAHAWK, INC., SEAHAWK DEEP OCEAN TECHNOLOGY, INC.,
an Alabama Corporation a Colorado
Corporation
By:/s/ Xxxx X. Xxxxxx By:/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxx, President Xxxx X. Xxxxxxxx, President
(PS195.ea)
