AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of August 6, 2004 is among SeaSearch
Scientific Corporation ("SSC"), a Nevada Corporation, and Global Marine Ltd.
"Global"), a Nevada corporation. SSC and Global are herein sometimes called the
"Constituent Corporations." The parties wish to effect the acquisition of SSC
by Global throuh a merger of SSC into STTJ on the terms and conditions hereof.
This Agreement is intended to be a "plan of reorganization" within the meaning
of ss368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
Accordingly, in consideration of the mutual representations, warranties and
covenants contained herein, the parties hereto agree as follows:
SECTION 1 - THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions hereof, and in
accordance with the Laws of the State of Nevada ("NCL"), SSC shall be merged
with and into Global (the "Merger"). The Merger shall occur at the Effective
Time (as defined herein). Following the Merger, Global shall continue as the
surviving corporation (the "Surviving Corporation") and the separate corporate
existence of SSC shall cease. As a result of the Merger, the outstanding
shares of capital stock of the Constituent Corporations shall be converted or
cancelled in the manner provided in Section 1.6.
1.2 Effective Time. As soon as practicable after satisfaction or waiver of
all conditions to the Merger, the parties shall cause a Certificate of Merger to
be filed in accordance with the NCL (the "Merger Certificate") and shall take
all such further actions as may be required by law to make the Merger effective.
The Merger shall be effective at such time as the Merger Certificate is filed
with the Secretary of State of the State of Nevada in accordance with the NCL or
at such later time as is specified in the Merger Certificate (the "Effective
Time"). Immediately prior to the filing of the Merger Certificate, a closing
(the "Closing") will be held at the offices of Xxx X. Xxxxxxxx, P.A., (or such
other place as the parties may agree) for the purpose of confirming satisfaction
or waiver of all conditions to the Merger. Subject to satisfaction or waiver of
each of the conditions specified in Sections 6, 7 and 8 hereof, the Closing
shall take place within three business days after the last to occur of:
(a) the Day the Merger is approved by the stockholders of Global; or
(b) the day the Certificate of Merger is filed with the Secretary of State of
Nevada;
or on such other date as the parties may agree, but not later than September 1,
2004. The date on which the Closing occurs is referred to herein as the
"Closing Date".
1.3 Effects of the Merger. The Merger shall have the effects set forth in the
NCL.
1.4 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of Global and the Bylaws of Global, in each case is in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation and Bylaws of the Surviving Corporation immediately after the
Effective Time, until duly amended in accordance with applicable law.
1.5 Directors and Officers. The directors of the Surviving Corporation
immediately after the Effective Time shall be the same as the directors of
Global after the Effective Time (after giving effect to the resignations and
additions agreed to by the constituent corporations). Xxxxxxx Xxxxxx shall be
appointed as President and Chief Executive Officer of Global. Each officer and
director shall hold office until his successor shall be duly appointed or
elected, as the case may be, and qualified or until his earlier death,
resignation or removal in accordance with the Certificate of Incorporation and
Bylaws of the Surviving Corporation.
1.6 Conversion of Stock.
(a) For purposes of this Agreement, "Merger Consideration" means $76,896,000
common shares of stock, $0.001 par value per share, of Global ("Global Common
Stock").
(b) At the Effective Time, by virtue of the Merger and without any action on the
part of Global or SSC:
(i) All shares of Common and Preferred Stock of SSC, $0.001 par value per
share (the "SSC Stock"), outstanding immediately prior to the Effective Time,
shall be converted into and become the right to receive the like amount of
shares of Global Common Stock in accordance with Section 1.6(c).
(c) The Merger Consideration shall be adjusted in the event of any change in
Global Common Stock by reason of a stock split, stock re-capitalization,
combination or subdivision of Global Common Stock, merger or other exchange of
shares by operation of law or the like occurring after the date of this
Agreement and before the Effective Time, such that, after the record date there-
for the Merger Consideration shall
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be equal to the number and class of shares or other securities or property that
would have been received in respect of a share of Global Common Stock, as the
case may be, if the Effective TIme had occurred immediately prior to such record
date.
1.7 Closing of SSC Transfer Books. At the Effective TIme, the stock transfer
books of SSC shall be closed and no transfer of SSC Stock shall thereafter be
made. If, after the Effective Time, certificates representing shares of SSC
Stock are presented to the Surviving Corporation, they shall be canceled and
exchanged for certificates representing Global Common Stock.
1.8 Issuance of Global Certificates. Prior to the Effective Time, Global shall
authorize one or more persons to act as Exchange Agent hereunder (the "Exchange
Agent") and shall deposit with or for the account of the Exchange Agent
certificates representing the number of shares of Global Common Stock equaling
the Merger Consideration. As soon as practicable after the Effective Time, (i)
SSC shall deliver to Global a list of all record holders of SSC Stock
immediately prior to the Effective Time (the "Record Holders"), setting forth
each stockholder's name, address and number of shares of SSC Stock held prior to
the Effective Time and such other information as may be reasonably requested by
the Exchange Agent, shall be instructed to mail to each Record Holder a form of
letter of transmittal which shall specify instructions for use in effecting the
surrender of SSC Stock certificates in exchange for Merger Consideration. Upon
the Exchange Agent's receipt of the letter of transmittal and any certificate
representing outstanding shares of SSC Stock held by a stockholder, each such
stockholder shall be entitled to receive a certificate representing that number
of whole shares of Global Common Stock into which the shares of SSC STock as
set forth on the Stockholder List shall have been converted pursuant to the
provisions of this Agreement. The shares of SSC Stock outstanding immediately
prior to the Effective Time (and any certificates representing such shares)
shall be deemed canceled as of the Effective Time. Global Common Stock into
which SSC Stock shall be converted in the Merger shall be deemed to have been
issued at the Effective Time.
1.9 No Fractional Shares. No certificates representing fractional shares of
Global Common Stock shall be issued upon the surrender for exchange of SSC Stock
certificates. No fractional interest shall entitle the owner to vote or to any
rights of a security holder. In lieu of fractional shares, each stockholder who
would otherwise have been entitled to receive a fractional share of Global
Common Stock will receive one additional whole share of Global Common Stock.
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SECTION 2-REPRESENTATIONS AND WARRANTIES OF SSC
SSC represents and warrants to Global as set forth below:
2.1 Organization and Qualification. SSC is a corporation duly organized,
validly existing and in good standing under the laws of Nevada and has full
corporate power and authority to own, lease and operate its assets, properties
and business and to carry on its business as now being and as heretofore
conducted. SSC does not own any capital stock of any corporation or any
interest in any joint venture, partnership, association, trust or other entity.
SSC is qualified. licenses or is otherwise authorized to transact business as a
foreign corporation and is in good standing in each jurisdiction (in the United
States and outside of the United States) in which the failure to be so
qualified, licensed or otherwise authorized to transact business and in good
standing would have a material adverse effect on the business or financial
condition of SSC.
2.2 Capitalization.
2.2.1 Outstanding Capital Stock. Immediately prior to Closing, SSC's
authorized capital stock shall consist of 200 million shares of Common Stock,
$.001 par value per share, of which 75,066,000 shares will be issued and
outstanding. Immediately prior to the Effective Time, all outstanding shares
of SSC Stock will be duly authorized, validly issued, fully paid, and
non-assessable and issued in compliance with all charter documents of SSC and
all applicable federal and state laws.
2.2.2 Options or Other Rights. No subscription, warrant, option, preemptive
right, convertible security or other right (contingent or otherwise) to purchase
or acquire any shares of capital stock or other security of SSC issued by SSC is
authorized or outstanding. There are no restrictions on the transfer of SSC's
capital stock other than those arising from securities laws. There are no
voting trusts, proxies or other agreements, instruments or understandings with
respect to outstanding shares of SSC's capital stock to which SSC is a party.
2.3 Authority to Execute and Perform Agreements. Subject to the requirement to
obtain approval of its stockholders to consummate the Merger under the NCL, SSC
has the requisite corporate power and authority to execute and deliver this
Agreement and each agreement, document and instrument contemplated by this
Agreement to which it is a party, to consummate the transactions contemplated
hereby and thereby and to perform fully its obligations hereunder and
there-under. The execution, delivery and performance of this Agreement have
been duly authorized by all necessary
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corporate action on the part of SSC. The Board of Directors of SSC has adopted a
resolution approving this Agreement and the transactions contemplated hereby,
recommending approval of this Agreement and the Merger contemplated hereby by
the stockholders of SSC and directing that this Agreement be submitted to the
stockholders of SSC for their consideration. This Agreement and each agreement,
document and instrument to which it is a party executed and delivered pursuant
to this Agreement constitute, or when executed and delivered will constitute,
valid and binding obligations of SSC, enforceable in accordance with their
respective terms.
2.4 Certificate of Incorporation and Bylaws, Books and Records. SSC has
heretofore delivered or made available to Global true and complete copies of its
Certificate of Incorporation, as amended (certified by the Secretary of State of
Nevada) and Bylaws as in effect on the date hereof and corporate minute books.
2.5 Tax Matters.
(a) All Taxes required to be paid by SSC, whether or not shown on any Tax
Return, have been paid or SSC has adequately provided reserves (in accordance
with GAAP). SSC is not currently the beneficiary of any extension of time
within which to file any Tax Return. No claim has ever been made by any taxing
authority in any jurisdiction that SSC is or may be subject to taxation by that
jurisdiction.
(b) There are no liens or other encumbrances with respect to Taxes upon any of
the assets or properties of SSC, other than with respect to Taxes not yet due
and payable.
(c) No deficiency for any Taxes has been proposed in writing against SSC, which
deficiency has not been paid in full. There are not ongoing or, to the
knowledge of SSC, threatened any audits, examinations, investigations or other
proceedings in respect of Taxes or Tax matters which could result in any tax
deficiency of SSC for any taxable period ending on or before the date hereof,
and SSC knows of no basis for the assertion of such a deficiency. No issue
relating to SSC involving any Tax for which Global might be liable has been
resolved in favor of any taxing authority in any audit or examination which, by
application of the same principles applied in the resolution of such issue,
could reasonably be expected to result in a deficiency for Taxes of Global for
any period for which the applicable statute of limitations has not expired.
(d) There are no outstanding agreements, waivers or arrangements extending the
statutory period of limitation applicable to any claim for, or the period for
the collection or assessment of, Taxes due from or with respect to SSC for any
taxable period, and no power of attorney granted by or with respect to SSC
relating to Taxes is currently in force.
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As used in this Agreement, (1) "Tax Return" means any return, declaration,
report, claim for refund, information return, or statement, and any schedule,
attachment, or amendment thereto, including without limitation any consolidated,
combined or unitary return or other document (including any related or
supporting information), filed or required to be filed by any taxing authority
in connection with the determination, assessment, collection, imposition,
payment, refund or credit of any federal, state, local or foreign Tax or the
administration of the laws relating to any Tax, and (ii) "Tax" or "Taxes" means
any and all taxes, charges, fees, levies, deficiencies or other assessments of
whatever kind or nature including, without limitation, all net income, gross
income, profits, gross receipts, excise, real or personal property, sales, ad
valorem, withholding, social security, retirement, excise employment,
unemployment, minimum estimated, severance, stamp, property, occupation,
environmental, windfall profits, use, service, net worth, payroll, franchise,
license, gains, customs, transfer, recording and other taxes, customs, duty
fees, assessments or charges of any kind whatsoever, imposed by any taxing
authority, including any liability therefor as a transferee under Section 6901
of the Code or any similar provision of applicable law, as a result of Treasury
Regulation Section 1.1502-6 or any similar provision of applicable law, or as a
result of any Tax sharing or similar agreement, together with any interest,
penalties or additions to tax relating thereto.
2.6 Compliance with Laws.
SSC is not in violation of or in default under, in any material respect, any
order, judgment, injunction, award or decree, or any federal, state, local or
foreign law, ordinance or regulation or any other requirement of any
governmental or regulatory body, court or arbitrator, and is in compliance in
all material respects with all of the foregoing that are applicable to it, its
business or its assets. SSC has not received notice of, and there has not been
any citation, fine or penalty imposed or asserted against it for, any such
violation or alleged violation that has not been favorably and fully resolved.
SSC holds all licenses, permits, certificates, exemptions, variance, franchises,
orders or approvals of any federal, state, local or foreign governmental or
regulatory body (collectively, "Permits") that are material to the conduct of
its business and the uses of its assets.
Actions and Proceedings. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, governmental or regulatory body or
arbitration tribunal against or involving SSC or any of its securities, assets
or properties. There are
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no actions, suites or claims or legal, judicial, administrative or arbitration
proceedings or investigations (whether or not the defense thereof or liabilities
in respect thereof are covered by insurance) pending or, to the best knowledge
of SSC, threatened against or involving SSC, or any of its securities, assets or
properties.
SSC has delivered or made available to Global true and complete copies of all of
the contracts and other agreements (and all amendments, waives or other
modifications thereto) it is a party to. All of such contracts and other
agreements are valid, subsisting, in full force and effect, binding upon SSC and
to the knowledge of SSC, binding upon the other parties thereto in accordance
with their terms.
SSC has good and marketable title to, or valid leasehold interests or otherwise
has the unrestricted right to use, free and clear of any liens, claims,
mortgages, encumbrances, pledges, security interests, equities and charges of
any kind (each an "Encumbrance") each item of equipment, furniture, leasehold
improvements, fixtures, vehicles, structures, any related capitalized items and
other tangible property material to the business of SSC ("Tangible Property").
Intellectual Property
(a) To the knowledge of SSC, SSC owns, or is licensed to use or otherwise has
the right to use all patents, trademarks, service marks, trade names, trade
secrets, logos, franchises, and copyrights, and all applications for any of the
foregoing, and all technology, inventions, trade secrets, know-how, computer
software and processes to the extent material to the conduct of its business as
now conducted (collectively, the "Proprietary Rights").
(b) To the knowledge of SSC, the business of SSC as currently conducted does not
infringe upon the proprietary rights of others, nor has SSC received any notice
or claim from any third party of such infringement by SSC.
SECTION 3-REPRESENTATIONS AND WARRANTIES OF GLOBAL
Global represents and warrants to SSC as set forth below:
3.1 Organization and Qualification. Global is a corporation duly organized,
validly existing and in good standing under the laws of the state or other
jurisdiction of its incorporation and has full corporate power and authority to
own, lease and operate its assets, properties and business and to carry on its
business as now being and as
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heretofore conducted. Global is licensed or is otherwise authorized to transact
business as a foreign corporation and is in good standing in each jurisdiction
(in the United States and outside of the United States) in which the failure to
be so qualified, licenses or otherwise authorized to transact business and in
good standing would have a material adverse effect on the business or financial
condition of Global.
3.2 Capitalization
3.2.1 Outstanding Capital Stock. GLobal's authorized capital stock will, on
or before the closing date, consist of (i) 1,400,000,000 shares of Common Stock,
$.001 par value per share. Global has disclosed to SSC the number and classes
of any Preferred Stock it has outstanding.
3.3 Authority to Execute and Perform Agreements. To the extent that Global is
required to obtain approval of its stockholders to consummate the Merger under
the NCL, Global has the requisite corporate power and authority to execute and
deliver this Agreement, and each document and instrument contemplated by this
Agreement to which it is a party, to consummate the transaction contemplated
hereby and thereby and to perform fully its respective obligations hereunder and
there-under. The execution, delivery and performance of this Agreement and each
such other agreement, document and instrument to which Global is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Global. The Board of
Directors of Global has adopted a resolution approving this Agreement and the
transaction contemplated hereby. The Board of Directors of Global has
recommended the approval of this Agreement to the stockholders of Global. This
Agreement and each agreement, document and instrument to which Global is a party
executed and delivered pursuant to this Agreement constitutes, or when executed
and delivered by Global, as the case may be, will constitute, valid and binding
obligations of Global, enforceable against Global in accordance with their
respective terms.
3.4 Charter and By-Laws, Books and Records. Global has heretofore delivered or
made available to SSC true and complete copies of the Certificate of
Incorporation (certified by the Secretary of State or comparable authority of
its jurisdiction of incorporation) and Bylaws of Global as in effect on the date
hereof, and corporate minute books. STTJ is not in default in the performance,
observation or fulfillment of either its Certificate of Incorporation or Bylaws.
The minute books of Global contain true and complete records of all meetings
and consents in lieu of meetings of the Board of
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Directors and of the stockholders of Global prior to the date hereof, and
accurately reflect all transactions referred to in such minutes and consents in
lieu of meetings. The stock books of Global are true, complete and correct.
The general ledgers and books of account of Global, if any, to which SSC and its
representatives have been given access are correct and complete in all material
respects and have been maintained in accordance with good business practice.
3.6 SEC Reports. Global is not current in it's reports to the SEC but has
delivered to SSC its Annual Reports on Form 10-KSB for the year ended December
31, 2001 as filed with the SEC.
3.7 Compliance with Laws.
Global not in violation of or in default under, in any material respect, any
order, judgment, injunction, award or decree, or any federal, state, local or
foreign law, ordinance or regulation or any other requirement of any
governmental or regulatory body, court or arbitrator, and is in compliance in
all material respects with all of the foregoing that are applicable to it, its
business or its assets.
Section 4 - Miscellaneous Provisions
4.1 Consummation of Agreement. Each party shall use all reasonable efforts
to perform and fulfill all conditions and obligations to be performed and
fulfilled by it under this Agreement and to ensure that to the extent within its
control or capable of influence by it, no breach of any of its representations,
warranties and agreements hereunder occurs or exists on or prior to the
Effective Time, all to the end that the transactions contemplated by this
Agreement shall be fully carried out in a timely fashion.
4.2 Further Assurances. Each of the parties shall execute such documents,
further instruments of transfer and assignments and other papers and take such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
SECTION 5- CONDITIONS PRECEDENT TO THE OBLIGATIONS OF EACH PARTY TO CONSUMMATE
THE MERGER
The respective obligations of each party to consummate the Merger shall be
subject to the satisfaction or waiver, at or before the Effective Time, of each
of the following conditions:
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5.1 Approvals. All required approvals of the stockholders and all consents
and approvals referred to in this Agreement, other than those which, the failure
to obtain would not affect the validity of this transaction or materially
adversely affect the business of the Surviving Corporation after the Effective
Time shall have been obtained.
5.2 Absence of Order. No restraining order or injunction of any court which
prevents consummation of the Merger shall be in effect.
SECTION 6- CONDITIONS PRECEDENT TO THE OBLIGATION OF GLOBAL TO CONSUMMATE THE
MERGER
The obligation of Global to consummate the Merger is subject to the satisfaction
or waiver by Global, at or before the Effective Time, of the following
conditions:
6.1 Representations. Warranties and Covenants. The representations and
warranties of SSC contained in this Agreement shall be true and correct in all
material respects on and as of the Effective Time with the same fore and effect
as though made on and as of the Effective Time. SSC shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by it on or prior to the
Effective Time.
SECTION 7- CONDITIONS PRECEDENT TO THE OBLIGATION OF SSC TO CONSUMMATE THE
MERGER
The obligation of SSC to consummate the Merger is subject to the satisfaction or
waiver by it, at or before the Effective Time, of the following conditions:
7.1 Representations, Warranties and Covenants. The representations and
warranties of Global contained in this Agreement shall be true and correct in
all material respects on and as of the Effective Time with the same force and
effect as though made on and as of the Effective Time. Global shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by them
on or prior to the Effective Time.
SECTION 8- TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated at any time on or prior
to the Closing Date, as follows:
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(a) by Global or SSC if, without fault of the terminating party, the Closing
Date shall not have occurred on or before September 1, 2004, which date may be
extended orally or in writing by mutual consent of the parties;
(b) by any party if any court of competent jurisdiction or governmental body
shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree or ruling shall have become final;
SECTION 9 - OTHER PROVISIONS
9.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when so delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or two business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
(i) if to Global, to:
Xxx X. Xxxxxxxx, Esq.
Xxx X. Xxxxxxxx, P.A.
Two Xxxxx Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(ii) if to SSC, to:
SSC
0000 Xxxxxxx Xxxxxx, Naval Base
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
9.2 Amendment. This Agreement may not be amended except by an instrument
signed by each party hereto.
9.3 Waiver. At any time prior to the Effective Time, any party hereto may
(a) extend the time for the performance of any of the obligations or other acts
of any other party hereto or (b) waive compliance with any of the agreements of
any other party or any conditions to its own obligations, in each case only to
the extent such obligations, agreements and conditions are intended for its
benefit; provided that any such extension or waiver shall be binding upon a
party only if such extension or waiver is set forth in a writing executed by
such party.
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9.4 Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the Merger and related transactions, and supersedes
all prior agreements, written or oral, with respect thereto.
9.5 Governing Law. This Agreement shall be governed by the laws of the
State of Nevada, without regard to its conflict of law provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as of
the date first stated above.
Global Marine Ltd.
By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President / CEO
SeaSearch Scientific Corporation
By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President / CEO
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