AGREEMENT AND PLAN OF MERGER
AMONG
RMS TITANIC, INC.
PREMIER EXHIBITIONS, INC.
AND
RMST MERGERSUB, INC.
Dated October 13, 2004
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated October 13,
2004 is made and entered into by and among RMS Titanic, Inc., a Florida
corporation (the "Company"), Premier Exhibitions, Inc., a Florida corporation
and a wholly-owned subsidiary of the Company ("HoldingCo"), and RMST MergerSub,
Inc., a Florida corporation and a wholly-owned subsidiary of HoldingCo
("MergerSub").
RECITALS:
The respective boards of directors of each of HoldingCo, MergerSub and
the Company have approved the merger of MergerSub with and into the Company (the
"Merger"), further approved the terms and conditions of the Merger set forth in
this Agreement, and approved this Agreement. HoldingCo and MergerSub are newly
formed corporations organized for the purpose of participating in the
transactions contemplated by this Agreement. The purpose of the Merger is to
implement a new holding company organizational structure for the Company under
which HoldingCo will become the holding company and the Company will become a
direct wholly owned subsidiary of HoldingCo. After the Effective Time (as
defined herein), the shareholders of the Company will own equity interests in
HoldingCo by consummating the Merger and converting each outstanding Share (as
defined herein) into one (1) share of HoldingCo Common Stock (as defined
herein), all in accordance with the terms of this Agreement. Pursuant to Section
607.11045 of the Florida Business Corporation Act ("FBCA"), it is not necessary
to submit this Agreement to a vote of the shareholders of the Company. The sole
shareholder of HoldingCo and the sole shareholder of MergerSub have each
approved this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER; EFFECTIVE TIME
1.1 The Merger. Upon the terms and subject to the conditions set forth
in this Agreement and the FBCA, at the Effective Time (as defined in Section
1.2), MergerSub shall be merged with and into the Company and the separate
corporate existence of MergerSub shall thereupon cease. The Company shall be the
surviving corporation in the Merger (the "Surviving Corporation"), and except as
provided herein, the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger. The Merger shall have the effects specified in the FBCA.
1.2 Effective Time. The Company and MergerSub will cause Articles of
Merger (the "Articles of Merger") to be executed as provided in Section 607.1105
of the FBCA and delivered to the Department of State of the State of Florida.
The Merger shall become effective upon the later of the filing of the Articles
of Merger and the close of business on October 14, 2004 (the "Effective Time").
ARTICLE II
ARTICLES OF INCORPORATION AND BY-LAWS OF THE SURVIVING
CORPORATION AND HOLDINGCO AFTER THE EFFECTIVE TIME
2.1 Articles of Incorporation. The articles of incorporation of the
Company, as amended, in effect immediately prior to the Effective Time shall,
from and after the Effective Time, be the articles of incorporation of the
Surviving Corporation, until duly amended as provided therein or otherwise in
accordance with applicable law, except that they shall again be amended, and the
following new Article X shall be added and become effective as of the Effective
Time:
"ARTICLE X
SECTION 607.11045, FLORIDA STATUTES
Pursuant to the provisions of Section 607.11045, Florida Statutes,
any act or transaction by or involving this Corporation, which
requires for its adoption under the Florida Business Corporation
Act or under these Articles of Incorporation the approval of the
shareholders of this Corporation must also be approved by the
shareholders of Premier Exhibitions, Inc., a Florida corporation
which is the parent corporation of this Corporation, or the
successor by merger of Premier Exhibitions, Inc., by the same vote
as is required under the Florida Business Corporation Act or these
Articles of Incorporation."
The articles of incorporation of HoldingCo, in effect immediately prior to the
Effective Time shall remain in effect, unchanged, from and after the Effective
Date, until duly amended as provided therein or otherwise in accordance with
applicable law.
2.2 The By-laws. The by-laws of the Company in effect at the Effective
Time shall, from and after the Effective Time, be the by-laws of the Surviving
Corporation, until thereafter amended as provided therein or otherwise in
accordance with applicable law. The by-laws of HoldingCo in effect at the
Effective Time shall remain in effect, unchanged, from and after the Effective
Time, until thereafter amended as provided therein or otherwise in accordance
with applicable law.
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ARTICLE III
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION AND
HOLDINGCO AFTER THE EFFECTIVE TIME
3.1 Officers. The officers of the Company immediately prior to the
Effective Time shall, from and after the Effective Time, be the officers of the
Surviving Corporation, to serve at the pleasure of the Board of Directors of the
Surviving Corporation. The officers of the Company immediately prior to the
Effective Time shall, from and after the Effective Time, be the officers of
HoldingCo, to serve at the pleasure of the Board of Directors of HoldingCo.
3.2 Directors. The directors of the Company immediately prior to at the
Effective Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation until their successors have been duly elected and
qualified or until their earlier death, resignation or removal in accordance
with the articles of incorporation or by-laws of the Surviving Corporation or as
otherwise provided by law. The directors of the Company immediately prior to the
Effective Time shall, from and after the Effective Time, be the directors of
HoldingCo until their successors have been duly elected and qualified or until
their earlier death, resignation or removal in accordance with the articles of
incorporation or by-laws of HoldingCo or as otherwise provided by law.
ARTICLE IV
EFFECT OF THE MERGER ON CAPITAL STOCK;
EXCHANGE OF CERTIFICATES
4.1 Effect on Capital Stock. At the Effective Time, as a result of the
Merger and without any action on the part of HoldingCo, the Company, MergerSub
or the holder of any capital stock of the Company:
(a) Merger Consideration. Each share of the Common Stock, par
value $.0001 per share, of the Company (a "Share" or, collectively, the
"Shares") issued and outstanding immediately prior to the Effective Time shall
be converted into one share of Common Stock, par value $.0001 per share, of
HoldingCo ("HoldingCo Common Stock").
(b) Cancellation of Shares. Each share Common Stock, par value
$.0001 per share, of HoldingCo issued and outstanding and held of by record by
the Company immediately prior to the Effective Time shall cease to be
outstanding, shall be canceled and retired without payment of any consideration
therefore, and shall cease to exist.
(c) MergerSub. Each share of Common Stock, par value $.001 per
share, of MergerSub issued and outstanding and held of record by HoldingCo
immediately prior to the Effective Time shall be converted into one share of
Common Stock, par value $.0001 per share, of the Surviving Corporation.
(d) Benefit Plans. At the Effective Time, (i) each option or
right to purchase (each, a "Company Option") Shares pursuant to any of the
Company's incentive plans or employee benefit plans, including but not limited
to the Company's 2000 Stock Option Plan, and the 2004 Stock Option Plan (the
"Option Plans") shall become an option or right to purchase shares of HoldingCo
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Common Stock on the same terms as an option or right to purchase Shares under
the Option Plans at an exercise price equal to the exercise price per share of
such Company Option under the Option Plans, and (ii) the definition of "Company"
under the Options Plans, and the name of each such Option Plan shall be amended
to reflect the fact that HoldingCo will, from and after the Effective Time, be
considered the "Company" and the plan sponsor for all purposes of the Option
Plans.
(e) Exchange of Certificates. Prior to the Effective Time,
HoldingCo shall deposit with American Stock Transfer (the "Exchange Agent")
certificates representing HoldingCo Common Stock. Promptly after the Effective
Time, HoldingCo shall cause the Exchange Agent to mail to each of the
shareholders of the Company immediately prior to the Effective Time: (i) a
letter of transmittal and (ii) instructions for use in effecting the surrender
of the Company Common Stock certificates in exchange for HoldingCo Common Stock
certificates. From and after the Effective Time, each shareholder of the Company
immediately prior to the Effective Time shall surrender the certificate or
certificates representing the Shares of Company Common Stock owned by such
person, duly endorsed as the Exchange Agent may require, together with the
transmittal materials properly and duly executed, to the Exchange Agent, and
shall promptly receive in exchange therefore a certificate representing an equal
number of shares of HoldingCo Common Stock. The Company Common Stock
certificates so surrendered shall forthwith be canceled. HoldingCo shall not be
obligated to deliver the certificates representing HoldingCo Common Stock to any
shareholder of the Company immediately prior to the Effective Time until such
shareholder has surrender its certificate or certificates representing Shares of
Company Common Stock for exchange, as provided herein. Until surrendered for
exchange in accordance with this Agreement, each certificate representing shares
of Company Common Stock shall, from and after the Effective Time, represent for
all purposes only the right to receive an equal number of shares of HoldingCo
Common Stock. Whenever a dividend or other distribution is declared by the
Company, the record date for which is at or after the Effective Time, the
declaration shall include dividends or other distributions on all shares
issuable pursuant to this Agreement, but no dividend or other distribution
payable to the holders of record of Company Common Stock at or subsequent to the
Effective Time shall be delivered to the holder of any certificate representing
Shares of Company Common Stock issued and outstanding immediately prior to the
Effective Time until such holder physically surrenders such certificate for
exchange as provided in this Agreement, promptly after which time all such
dividends or distributions shall be paid (without any interest thereon).
ARTICLE V
ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER
5.1 Assumption of Plans and Agreements. HoldingCo and the Company
hereby agree that they shall, at or prior to the Effective Time, execute,
acknowledge and deliver an assumption agreement pursuant to which HoldingCo
will, from and after the Effective Time, be substituted for, assume and agree to
perform, or cause the Company to perform, all obligations of the Company
existing immediately prior to the Effective Time pursuant to the Option Plans,
option agreements, stock pledge agreements, and other agreements pertaining to
the Company Common Stock as shall be deemed appropriate by the officers of the
Company. In connection with such assumption and without further action by the
shareholders of HoldingCo or the Company, the Option Plans shall be amended such
that all references to the Company and the Shares shall become references to
HoldingCo and HoldingCo Common Stock, respectively.
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5.2 Compliance with the FBCA. The parties hereto will take all steps
necessary to comply with Section 607.11045 of the FBCA, including without
limitation, the following:
(a) Articles of Incorporation and Bylaws of HoldingCo. At the
Effective Time, the articles of incorporation and by-laws of HoldingCo shall be
in the form of the articles of incorporation and by-laws of the Company, as in
effect immediately prior to the Effective Time, subject to the exceptions
permitted by Section 607.11045.
(b) Directors and Officers of HoldingCo. At the Effective
Time, the directors and officers of the Company immediately prior to the
Effective Time shall become the directors and officers of HoldingCo, in the case
of directors, until their successors are elected and qualified and, in the case
of officers, to serve at the pleasure of the Board of Directors of HoldingCo.
(c) Listing of HoldingCo Common Stock. At the Effective Time,
the HoldingCo Common Stock to be issued and initially reserved for issuance
pursuant to the transactions contemplated herein shall have been approved for
quotation on the OTC Bulletin Board.
(d) Filings. At or prior to the Effective Time, the Surviving
Corporation shall cause this Agreement to be executed and filed with the Florida
Secretary of State. Prior to the Effective Time, to the extent necessary to
effectuate the amendments to the articles of incorporation of the Surviving
Corporation contemplated by this Agreement, the Surviving Corporation shall
cause to be filed with the Florida Secretary of State such certificates or
documents required to give effect thereto.
ARTICLE VI
CONDITIONS
The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver at or prior to the Effective Time of the following
condition: the shares of HoldingCo Common Stock issuable to the shareholders of
the Company pursuant to this Agreement shall have been authorized for quotation
on the OTC Bulletin Board.
ARTICLE VII
TERMINATION
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by mutual written consent of the Company and
HoldingCo by action of their respective Boards of Directors.
ARTICLE VIII
MISCELLANEOUS AND GENERAL
8.1 Modification or Amendment. Subject to the provisions of applicable
law, at any time prior to the Effective Time, the parties hereto may modify or
amend this Agreement by written agreement approved by the respective parties'
Boards of Directors and executed and delivered by duly authorized officers of
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the respective parties, except that no amendment shall alter or change the
amount or kind of shares to be received by shareholders of the Company or
otherwise alter or change any of the terms and conditions of this Agreement so
as to adversely affect the Company's shareholders.
8.2 Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
8.3 Governing Law. This Agreement shall be deemed to be made in and in
all respect shall be interpreted, construed and governed by and in accordance
with the laws of the State of Florida, without regard to the conflict of law
principles thereof.
8.4 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefore in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of the parties hereto as of the date first
written above.
RMS TITANIC, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------------
Xxxxx Xxxxxx, President and Chief Executive Officer
PREMIER EXHIBITIONS, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------------
Xxxxx Xxxxxx, President and Chief Executive Officer
RMST MERGERSUB, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------------
Xxxxx Xxxxxx, President and Chief Executive Officer
Wsms:121955v6
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