AGREEMENT OF MERGER
OF
XXXXXXXX.XXX
(a California corporation)
AND
AQUATIC PROPULSION TECHNOLOGY, INC.
(a Bahamian corporation)
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THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and entered
into as of July 1, 2000 by and between Xxxxxxxx.xxx, a California corporation
doing business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Zapworld")
and Aquatic Propulsion Technology, Inc., a Bahamian corporation doing business
at 000 Xxxxxxxxx 00xx Xxxxx, Xxxxxxx Xxxxx, XX 00000 ("Aquatic Propulsion").
WHEREAS, the respective Boards of Directors of Zapworld and Aquatic
Propulsion, in light of, and subject to, the terms and conditions in that
certain Agreement and Plan of Reorganization, dated July 1, 2000, between
Zapworld and Aquatic Propulsion (the "Reorganization Agreement"), deem it
advisable and in the best interests of each of such corporations and their
respective shareholders that Aquatic Propulsion be merged with and into
Zapworld.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, and intending to be legally bound hereby, Zapworld and Aquatic
Propulsion hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and California
Law, Aquatic Propulsion shall be merged with and into Zapworld. After the
merger, the separate corporate existence of Aquatic Propulsion shall cease and
Zapworld shall continue as the surviving corporation.
1.2 Effective Time. Unless this Agreement is earlier terminated
pursuant to Section 9.1 of the Agreement & Plan of Reorganization, the closing
of the Merger (the "Closing") will take place as promptly as practicable, but no
later than one (1) business day following satisfaction or waiver of the
conditions set forth in Article VI of the Agreement & Plan of Reorganization, at
the law offices of Xxxxx & Xxxxxxxxxxx, LLP, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, unless another place or time is agreed to by
Zapworld and Aquatic Propulsion. The date upon which the Closing actually occurs
is herein referred to as the "Closing Date." On the Closing Date, the parties
hereto shall cause the Merger to be consummated by filing this Agreement with
the Secretary of State of the State of California, in accordance with the
relevant provisions of California Law (the time of acceptance by the Secretary
of State of California of such filing being referred to herein as the
"Effective Time"). The parties currently intend that the Closing Date will occur
on or prior to July 1, 2000.
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of California Law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, power and franchises of
Aquatic Propulsion shall vest in Zapworld and all debts, liabilities and duties
of Aquatic Propulsion shall become the debts, liabilities and duties of the
Zapworld.
1.4 Articles of Incorporation; Bylaws. The Articles of Incorporation
and Bylaws of Zapworld, as in effect immediately prior to the Effective Time,
shall be the Articles of Incorporation and Bylaws, respectively, of Zapworld
after the merger of Aquatic Propulsion into Zapworld.
1.5 Directors and Officers. The officers and directors of Aquatic
Propulsion shall no longer hold office immediately after the Effective Time, and
the officers and directors of Zapworld before the Effective Time shall be the
respective officers and directors of Zapworld after the Effective Time, each to
hold office in accordance with the Articles of Incorporation and Bylaws of
Zapworld.
1.6 Effect of Merger on Aquatic Propulsion Capital Stock. At the
Effective Time, all shares of Aquatic Propulsion capital stock ("Aquatic
Propulsion Capital Stock") and any right to acquire any shares of Aquatic
Propulsion Capital Stock, including any options or warrants issued and
outstanding, whether or not vested, shall cease to exist.
1.7 Effect of Merger on Zapworld Common Stock. The shares of Zapworld
outstanding immediately prior to the Effective Time shall remain issued and
outstanding immediately thereafter and shall be unaffected by the transaction
described herein.
1.8 Aggregate Shares to be Issued. As consideration for the
transactions described herein, Zapworld shall issue to the holders of Aquatic
Propulsion, shares of Zapworld common stock ("Zapworld Common Stock"). The
aggregate number of shares of Zapworld Common Stock that Zapworld shall issue to
the holders of Aquatic Propulsion is one hundred twenty thousand (120,000).
1.9 Allocation and Fractional Shares.
(a) Allocation. The allocation of shares of Zapworld Common Stock set
forth in this Agreement shall be adjusted to reflect the effect of any stock
split, reverse split, stock dividend (including any dividend or distribution of
securities convertible into Zapworld Common Stock or Company Capital Stock),
reorganization, recapitalization or other like change with respect to Zapworld
Common Stock occurring after the date hereof and prior to the Effective Time.
(b) Fractional Shares. No fraction of a share of Zapworld Common Stock
will be issued at the Effective Time, but in lieu thereof, each holder of
Aquatic Propulsion Stock who would otherwise be entitled to a fraction of a
share of Zapworld Common Stock
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(after aggregating all fractional shares of Zapworld Common Stock to be received
by such holder) shall be entitled to receive from Zapworld an amount of cash
(rounded to the nearest whole cent) equal to the product of: (i) such fraction,
multiplied by; (ii) the average closing price of a share of Zapworld Common
Stock as reported on the OTC Bulletin Board for the 30-day period ending three
days prior to the Closing Date or, if any such day there are no sales reported,
the average of the closing bid and ask prices for Zapworld Common Stock reported
on that date.
1.10 Surrender of Certificates.
(a) Exchange Agent. The Corporate Secretary of Zapworld shall serve as
the exchange agent (the "Exchange Agent") in the Merger.
(b) Zapworld to Provide Common Stock. Promptly after the Effective
Time, Zapworld shall make available to the Exchange Agent for exchange in
accordance with this Article I, a valid check in the amount of $20,000 and the
aggregate number of shares of Zapworld Common Stock issuable pursuant to Section
1.8, in exchange for all outstanding shares of Aquatic Propulsion Common Stock.
(c) Aquatic Propulsion to Deliver all Its Outstanding Stock. Promptly
after the Effective Time, Aquatic Propulsion shall deliver to the Exchange Agent
all share certificates of Aquatic Propulsion Common Stock outstanding as of the
Effective Time.
1.11 No Further Ownership Rights in Aquatic Propulsion Capital Stock.
All shares of Aquatic Propulsion Common Stock issued shall be deemed to have
been issued in full satisfaction of all rights pertaining to such shares of
Zapworld Common Stock, and after the Effective Time there shall be no further
registration of transfers on the records of the Aquatic Propulsion of shares of
Aquatic Propulsion Common Stock which were outstanding immediately prior to the
Effective Time.
1.12 Taking of Necessary Action; Further Action. If, at any time after
the Effective Time, any such further action is necessary or desirable to carry
out the purposes of this Agreement and to vest Zapworld with full right, title
and possession to all assets, property, rights, privileges, powers and
franchises of Aquatic Propulsion, the officers and directors of Zapworld are
fully authorized in the name of Aquatic Propulsion to take, and will take, all
such lawful and necessary action.
ARTICLE II
MISCELLANEOUS
2.1 Termination of Agreement and Plan of Reorganization.
Notwithstanding the approval of this Agreement by the shareholders of Aquatic
Propulsion, this Agreement shall terminate forthwith in the event that the
Reorganization Agreement shall be terminated as therein provided.
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2.2 Amendment. This Agreement shall not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
2.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one agreement.
2.4 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect by the laws of the State of
California.
IN WITNESS WHEREOF, the parties have executed this Agreement.
Xxxxxxxx.xxx
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Assistant Secretary
Aquatic Propulsion Technology, Inc.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: President
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Secretary
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