AGREEMENT ("Agreement") made this 2nd day of April, 2002, by and between
RMS TITANIC, INC. (hereinafter called "Seller"), a Florida corporation, ARGOSY
INTERNATIONAL, LTD. (hereinafter called "Purchaser"), a Grand Turks and Caicos
Islands corporation, XXXXXX XXXXXX (hereinafter called "Xxxxxx"), an individual
whose address is Grand Turks and Caicos Islands and DANEPATH, LTD., (hereinafter
called "Corporation"), a United Kingdom corporation.
W I T N E S S E T H :
WHEREAS, Seller owns the issued and outstanding shares ("Shares") of
Corporation; and
WHEREAS, Purchaser desires to purchase the Shares from Seller, and,
WHEREAS, Xxxxxx and Corporation desire to bind themselves to certain
obligations subsequent to the signing of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties agree as follows:
1. Sale of Shares. Subject to the terms and conditions of this Agreement,
Seller hereby sells, assigns, and transfers the Shares to Purchaser, free and
clear of any lien, charge or encumbrance of whatsoever nature.
2. Purchase Price. Subject to the terms and conditions of this Agreement in
reliance on the representations, warranties and agreements of Seller contained
herein, and in further consideration of the sale, assignment and delivery of the
Shares, in full payment thereof, Purchaser agrees and does hereby pay to Seller
and Seller agrees to and does hereby accept the aggregate sum of ONE MILLION TWO
HUNDRED THOUSAND ($U.S.1,200,000) U.S. DOLLARS (the "Purchase Price").
(a) Payment of Purchase Price. The Purchase Price shall be paid as follows:
(i) ONE HUNDRED THOUSAND ($U.S.100,000) U.S. DOLLARS on signing of this
binding agreement;
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(ii) TWO HUNDRED THOUSAND ($U.S.200,000) U.S. DOLLARS shall be paid by
Purchaser to Seller three months from the date hereof (the "First Installment");
(iii) TWO HUNDRED THOUSAND ($U.S.200,000) U.S. DOLLARS shall be paid by
Purchaser to Seller six months from the date hereof (the "Second Installment");
(iv) The balance, to wit, SEVEN HUNDRED THOUSAND ($U.S.700,000) U.S.
DOLLARS shall be paid in full one year from the date of this Agreement.
Interest on the outstanding obligation shall accrue at the rate of 8% per annum
and shall be paid, together with the First Installment and Second Installment
and at maturity.
(b) Alternative Payment.
(i) Seller has the right to substitute for the Second Installment of
$200,000 with interest by exercising an option during a period commencing on the
date of the proposed agreement and ending on the tenth day prior to the due date
of the Second Installment, to wit, six months from the date hereof to acquire
from Purchaser 20% of the issued and outstanding Shares of common stock and
other securities, owned beneficially and of record by Purchaser of a company to
be acquired by merger or other legal mechanism of a new company (hereinafter
referred to as a publicly traded company "Newco"). Purchaser shall not pre-pay
the Second Installment.
(ii) Notwithstanding anything contained in this paragraph 3, at any time
within two years from the date hereof, Purchaser shall have the right to demand
on Seller for Seller to transfer to Purchaser 50% of such shares of Newco
acquired by Seller pursuant to subparagraph 2(b)(i) for the sum of $500,000.
(iii) Notwithstanding anything to the contrary, Purchaser shall be given a
proxy to vote Seller's Newco shares so acquired.
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3. Seller's and the Corporation's Representations and Warranties. Seller
and the Corporation, jointly and severally, represent and warrant to Purchaser
as follows:
(a) Organization.
(i) Seller was incorporated under the laws of the State of Florida and
has been duly organized and is in good standing under the laws of the State
of Florida.
(ii) The Corporation was incorporated under the laws of the United
Kingdom and was organized and is in good standing under the laws of the
United Kingdom.
(b) Qualification. Seller and the Corporation, jointly and by virtue of
each of its activities and business is not qualified to do any business in any
state or other jurisdiction, except that the Seller is duly qualified under the
laws of the States of Georgia, Florida and New York.
(c) Financial Statements. Seller has previously delivered to Purchaser its
financial statements for Corporation consisting of the income statement and
balance sheet, as at February 28, 2001, and November 31, 2001. The balance
sheets are true and correct and presents a fair and accurate presentation of the
financial condition and assets and liabilities (whether accrued, absolute,
contingent, or otherwise) of the Corporation as of the dates thereof in
accordance with generally accepted principles of accounting applied on a
consistent basis.
(d) Conduct of Business. Corporation is engaged in chartering of the ship
"Explorer". The Corporation engages its business in accordance with law.
(e) Injunction. Neither the Seller nor the Corporation is subject to any
injunction prohibiting the transactions set forth in this Agreement.
(f) Undisclosed Liabilities. Except to the extent reflected or reserved
against in the November 31, 2001 balance sheet of the Corporation, as of that
date, the Corporation had no liabilities or obligations of any nature, whether
absolute, accrued, contingent, or otherwise and whether due or to become due.
Furthermore, Seller does not know or have any reasonable ground to know of any
basis for the assertion against the Corporation of any liability or obligation
as of November 31, 2001, of any nature or in any amount not fully reflected or
reserved against in the November 31, 2001 balance sheet.
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(g) Absence of Certain Change. The Corporation has not since the balance
sheet as of November 31, 2001:
(i) Suffered any material adverse change in financial condition, assets,
liabilities, business, or prospects;
(ii) Paid any claim or discharged or satisfied any lien or encumbrance or
paid or satisfied any liability (whether absolute, accrued, contingent, or
otherwise) other than liabilities shown or reflected in the Corporation's
November 31,2001, balance sheet or liabilities incurred since November 31,
2001, in the ordinary course of business and consistent with past practice;
(iii) Permitted or allowed any of its assets, tangible or intangible, to be
mortgaged, pledged, or subjected to any liens or encumbrances.
4. Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller that:
(a) Organization. Purchaser has been incorporated under the laws of the
Grand Turks and Caicos Islands and was organized in accordance with and is in
good standing in said jurisdiction.
(b) Corporate Power. Purchaser has the corporate power and authority to
carry on its business as presently being conducted.
5. Survival of Representations; Indemnification.
(a) Survival of Representations. All representations, warranties, and
agreements made by any party in this Agreement or pursuant hereto shall survive
the execution and delivery hereof and any investigation at any time made by or
on behalf of any party.
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(b) Indemnification. Seller, jointly and severally, agrees to indemnify
Purchaser and hold it harmless from and in respect of any assessment, loss,
damage, liability, cost and expenses (including without limitation, interest,
penalties, and reasonable attorneys' fees) in excess of $10,000 in the
aggregate, imposed upon or incurred by Purchaser (including the Corporation)
resulting from any breach of any agreement, representation, or warranty of
Seller. The assertion by Purchaser of its rights to indemnification under this
subparagraph (b) shall not preclude the assertion by Purchaser of any other
rights or the seeking of any other remedies against Seller.
6. Delivery by Seller. Seller has delivered to Purchaser:
(a) The certificate or certificates representing the Shares endorsed in
blank and otherwise in form acceptable for transfer on the books of the
Corporation with any necessary transfer tax stamps.
(b) All contracts, minutes books, stock books, stock ledger books,
accounting books and any records of Corporation.
(c) A general release signed by Purchaser and delivered to Seller releasing
all obligations owed by Seller to Purchaser.
(d) A general release by the Seller and delivered to Purchaser
releasing all the obligations owed by the Corporation to Seller.
(e) Resignation of all directors of Corporation.
7. Collateral. As collateral for the balance of the obligations to be owed
by Purchaser to Seller:
(a) A first mortgage lien on the vessel "Explorer" owned by the
Corporation;
(b) A pledge pursuant to pledge agreement whereby Purchaser grants to
Seller a first security interest in all the common stock of Seller owned of
record by Purchaser.
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8. The Corporation's Debt. The Seller owes the Corporation $240,000. Said
installment shall be paid as follows:
(a) The first installment of $200,000 to be paid by Purchaser to Seller.
See subparagraph 2(a)(ii); and
(b) The remaining $40,000 shall be paid by reducing the outstanding
principal balance of $40,000 owed by Purchaser to Seller pursuant to paragraph
2(a)(iv).
9. Post Closing Obligations of Xxxxxx and Corporation. Xxxxxx and
Corporation shall be the exclusive "co-expedition" leaders for all Seller's
expeditions for a period of five years.
10. Post-Closing Covenants; Registration Covenants. Purchaser agrees that
with respect to the shares of stock of Newco, being transferred to Seller
pursuant to paragraph 2(b) of this Agreement, Seller agrees:
(a) To give Newco and Purchaser advance written notice of Seller's
intention to effect any of Newco's common stock or other securities issued
to Seller pursuant to paragraph 2(b).
(b) That said notice must detail the circumstances of the proposed
transfer and be accompanied by a written opinion of Seller's legal counsel
regarding whether the transfer of the Newco common stock must be registered
under ss. 5 of the Securities Act of 1933, as amended (" Securities Act").
If the opinion is that registration is required, the notice must include a
demand that the Purchaser effects a registration. Upon receipt by the
Purchaser of any such notice, the following provisions shall apply:
(i) Immediately upon receiving the notice, the Purchaser will ask its
counsel to render a written opinion regarding the necessity of registration,
copies of which the Purchaser will furnish the holder and its counsel. If the
Purchaser's counsel fails to render its opinion within twenty days of the
Purchaser's request, the Purchaser will proceed as if its counsel had rendered
an opinion concurring with the opinion of the holder's counsel.
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(ii) If the opinion of both counsel is that the proposed transfer may be
effected without registration, the holder will thereupon be entitled to proceed
with the transaction in accordance with his or her notice to the Purchaser.
(iii) If counsel's opinion is that the proposed transfer may not be
effected without registration, the Purchaser will use its best efforts to effect
registration of the shares of Newco common stock under the Securities Act, in
accordance with the holder's notice and the provisions of this section.
(iv) If, however, the opinion of the Seller's counsel is that registration
is not required and the Purchaser's counsel does not concur, Seller's counsel
may submit the question to the staff of the Securities and Exchange Commission
(the "SEC"). If the staff of the SEC issues a favorable "no-action" letter or
advisory opinion with respect to the transaction, Seller's counsel will promptly
furnish a copy thereof to the Purchaser and its counsel. Seller's counsel may
thereupon transfer the shares of the Newco common stock covered by the opinion
or no action letter in accordance with its terms.
Seller may not transfer its shares of Newco common stock until (x) the favorable
opinions of counsel referred to in subparagraph (a)(ii) have been given; (y) the
registration of the shares of Newco common stock referred to in subparagraph
(a)(iii) has been effective, or (z) the favorable advisory opinion or no-action
letter referred to in subparagraph (a)(iv) has been received.
(c) Notwithstanding anything to the contrary contained herein, if the
shares acquired by Seller from Purchaser of Newco shares are not freely
available to sell, then Seller shall have the right to include any
percentage of its shares of Newco in any registration statement to be filed
with the Securities and Exchange Commission pursuant to ss. 5 of the
Securities Act of 1933. Said rights may be limited by the underwriter
selling such shares of Newco to the public provided that the other selling
shareholders of Newco shall proportionally reduce its shares in the
registration statement to be filed with the Securities and Exchange
Commission.
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11. Miscellaneous.
(a) Entire Agreement. This Agreement is the entire understanding between
the parties hereto. Neither of the parties hereto has made any representation,
warranty, promise, covenant or undertaking other than set forth herein.
(b) Waiver and Modification. Neither the Seller nor Purchaser may waive any
of the provisions of this Agreement unless in writing or modify any provisions
of the Agreement. This Agreement shall not be modified, changed or terminated,
except in writing, signed by the party against whom such modification, change or
termination is sought to be enforced.
(c) Payment of Fees and Expenses. Each party hereto shall pay all fees and
expenses of such party's respective counsel, accountants, and other experts and
all other expenses incurred by such party incident to the negotiation,
preparation and execution of this Agreement and the consummation of the
transaction contemplated hereby, except that the Seller shall pay all of
Purchaser's legal fees and expenses with respect to the negotiation, preparation
and closing of this Agreement.
(d) Remedies. Nothing contained herein is intended to or shall be construed
to limit the remedies which either party may have against the other in the event
of a breach of or default under this Agreement, it being intended that any
remedies shall be cumulative and not exclusive.
(e) Cooperation. Seller and Purchaser shall cooperate in connection with
the transactions contemplated herein.
(f) Notices. All notices, requests and other communications shall be deemed
duly given if mailed, postage prepaid, registered or certified, return receipt
requested, addressed to the parties below as follows or VIA FACSIMILE to the
parties at their fax numbers set forth below:
If to Seller:
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
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If to Purchaser:
X.X. Xxx 000
Providenciales
Turks and Caicos Islands, B.W.I.
or to such other address or fax number as either party may give by appropriate
notice.
(g) Counterpart. This Agreement may be executed in counterpart.
(h) Governing Law. This Agreement shall be governed by the laws of the
State of Georgia with respect to agreements wholly executed and performed in
such state.
(i) Headings. The headings of this Agreement or any sections hereof are
inserted only for the purpose of convenient reference, and it is recognized that
they may not accurately or adequately described the contents of the sections
which they head. Such headings shall not be deemed to limit, cover, or in any
way affect the scope, meaning or intent of this Agreement or any part hereof,
nor shall they otherwise be given any legal effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
RMS TITANIC, INC.
-------------------------
By
ARGOSY INTERNATIONAL, LTD.
-------------------------
By
DANEPATH, LTD.
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By
XXXXXX XXXXXX
-------------------------
An individual
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