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Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
REVENGE MARINE, INC.
FIRST CHANGE MARINE FINANCE ACQUISITION, INC.
AND
FIRST CHANCE MARINE FINANCE, INC.
Dated as of February 11, 1999
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AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
and entered into as of February 11, 1999 among Revenge Marine, Inc., a Nevada
corporation ("Revenge"), First Chance Marine Finance Acquisition, Inc., a
Delaware corporation and a wholly-owned subsidiary of Revenge ("Merger Sub"),
and First Chance Marine Finance, Inc., a Florida corporation ("First Chance").
RECITALS
A. The Boards of Directors of each of First Chance, Revenge and Merger
Sub believe it is in the best interests of each of them and their respective
stockholders that Revenge acquire First Chance through the statutory merger of
First Chance with and into Merger Sub (the "Merger") and, in furtherance
thereof, have approved the Merger.
B. Pursuant to the Merger, among other things, and subject to the terms
and conditions of this Agreement, all of the issued and outstanding shares of
capital stock of First Chance ("First Chance Capital Stock") shall be converted
into the right to receive shares of Common Stock of Revenge ("Revenge Common
Stock") and Series A Preferred Stock of Revenge ("Revenge Preferred Stock" or
"Series A Preferred Stock in Revenge").
C. First Chance, Revenge and Merger Sub desire to make certain
representations and warranties and other agreements in connection with the
Merger.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
intending to be legally bound hereby the parties 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 the
applicable provisions of the Delaware General Corporation Law ("Delaware Law"),
the Nevada General Corporation Law ("Nevada Law") and the Florida Business
Corporation Act ("Florida Law"), First Chance shall be merged with and into
Merger Sub, the separate corporate existence of First Chance shall cease and
Merger Sub shall continue as the surviving corporation and as a wholly-owned
subsidiary of Revenge. Merger Sub as the surviving corporation after the Merger
is hereinafter sometimes referred to as the "Surviving Corporation".
1.2 Effective Time. The parties hereto shall cause the Merger to be
consummated at a closing (the "Closing") scheduled to take place on February 24,
1999 or as stipulated by mutual agreement of the parties and upon the concurrent
filing of a Certificate of Merger (or like instrument)
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with the Secretary of State of the State of Delaware and the Secretary of State
of the State of Florida (together the "Certificate of Merger"), in accordance
with the relevant provisions of applicable law (the time of acceptance by the
Secretary of State of Delaware of such filing being referred to herein as the
"Effective Time").
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of Delaware Law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and franchises of
First Chance and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of First Chance and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) The Certificate of Incorporation of Merger Sub shall be
the Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation; provided,
however, that Article I of the Certificate of Incorporation of the Surviving
Corporation shall be amended to read as follows: "The name of the corporation is
First Chance Marine Finance, Inc."
(b) The Bylaws of Merger Sub, as in effect immediately prior
to the Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended.
1.5 Directors and Officers. The director(s) of Merger Sub immediately
prior to the Effective Time shall be the initial director(s) of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation. The officers of Merger
Sub immediately prior to the Effective Time shall be the initial officers of the
Surviving Corporation, each to hold office in accordance with the Bylaws of the
Surviving Corporation.
1.6 Shares to Be Issued; Effect on Capital Stock. The number of shares
of Revenge Common Stock to be issued in exchange for the acquisition by Revenge
of all outstanding First Chance Capital Stock shall be 9,363,693 (the "Aggregate
Share Number"). The Aggregate Share Number shall be allocated between the Common
Stock of First Chance issued and outstanding on the Effective Date and shares of
Revenge Common Stock issuable on conversion of Preferred Stock of First Chance
("First Chance Preferred Stock"), as provided in a plan of merger approved by
the Board of Directors of First Chance (the "Plan of Merger"). Subject to the
terms and conditions of this Agreement, as of the Effective Time, by virtue of
the Merger and without any action on the part of Merger Sub, First Chance or the
holder of any shares of First Chance Capital Stock, the holder of any options or
other rights to acquire or receive shares of First Chance Capital Stock, the
following shall occur:
(a) Conversion of First Chance Common Stock. Each share of
Common Stock of First Chance ("First Chance Common Stock") issued and
outstanding immediately prior to the
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Effective Time will be canceled and extinguished and be converted automatically
into the right to receive that number of shares of Revenge Common Stock as set
forth in the Plan of Merger upon surrender of the certificate representing such
share of First Chance Common Stock in the manner provided in Section 1.7.
(b) Conversion of First Chance Preferred Stock. Immediately
prior to the Effective Time, First Chance shall have outstanding one class of
Preferred Stock ("First Chance Preferred Stock") consisting of 500,000 shares.
In the Merger, each share of First Chance Preferred Stock issued and outstanding
immediately prior to the Effective Time will be canceled and extinguished and be
converted automatically into the right to receive 0.1 shares of Series A
Preferred Stock in Revenge upon surrender of the certificate representing such
shares of First Chance Preferred Stock in the manner provided in Section 1.8.
The terms of the Revenge Preferred Stock shall be as follows: (i) the shares of
Revenge Preferred Stock shall have an aggregate of 500,000 votes on all matters
considered by Shareholders of Revenge; (ii) the shares of Revenge Preferred
Stock shall have an aggregate liquidation preference of $1,000,000; (iii) no
cash dividends shall be payable to holders of Revenge Common Stock until holders
of the Revenge Preferred Stock shall have been paid cash dividends of
$1,000,000; and (iv) the shares of Revenge Preferred Stock shall be convertible
into Revenge Common Stock at a rate as set forth in the Plan of Merger (provided
that the total of the number of shares of Revenge Common Stock issued in the
Merger in exchange for First Chance Common Stock and the number of shares of
Revenge Common Stock issuable on conversion of the Revenge Preferred Stock shall
not exceed the Aggregate Share Number.)
(c) Fractional Shares. No fraction of a share of Revenge
Common Stock will be issued.
1.7 Surrender of Certificates.
(a) Exchange Agent. Prior to the Effective Time, Revenge
designates James Neil Hutchinson to act as exchange agent (the "Exchange Agent")
in the Merger.
(b) Revenge to Provide Stock. Promptly after the Effective
Time, Revenge shall make available to the Exchange Agent for exchange in
accordance with this Article I, the aggregate number of shares of Revenge Common
Stock and Revenge Preferred Stock issuable pursuant to Section 1.6 in exchange
for outstanding shares of First Chance Capital Stock.
(c) Exchange Procedures. Promptly after the Effective Time,
the Surviving Corporation shall cause to be mailed to each holder of record of a
certificate or certificates (the "Certificates") which immediately prior to the
Effective Time represented outstanding shares of First Chance Common Stock whose
shares were converted into the right to receive shares of Revenge Common Stock
pursuant to Section 1.6, (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as Revenge may reasonably specify)
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of Revenge Common Stock or
Series A
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Preferred Stock in Revenge, as determined in Section 1.6. Upon surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by Revenge, together with such letter of transmittal,
duly completed and validly executed in accordance with the instructions thereto,
the holder of such Certificate shall be entitled to receive in exchange therefor
a certificate representing the number of whole shares of Revenge Common Stock or
Series A Preferred Stock in Revenge and the Certificate so surrendered shall
forthwith be canceled. Until so surrendered, each outstanding Certificate that,
prior to the Effective Time, represented shares of First Chance Capital Stock
will be deemed from and after the Effective Time, for all corporate purposes,
other than the payment of dividends, to evidence the ownership of the number of
full shares of Revenge Common Stock and Series A Preferred Stock in Revenge into
which such shares of First Chance Capital Stock shall have been so converted in
accordance with Section 1.6.
(d) Distributions With Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the Effective Time with
respect to Revenge Common Stock or Series A Preferred Stock in Revenge with a
record date after the Effective Time will be paid to the holder of any
unsurrendered Certificate with respect to the shares of Revenge Common Stock or
Series A Preferred Stock in Revenge represented thereby until the holder of
record of such Certificate shall surrender such Certificate. Subject to
applicable law, following surrender of any such Certificate, there shall be paid
to the record holder of the certificates representing whole shares of Revenge
Common Stock or Series A Preferred Stock in Revenge issued in exchange therefor,
without interest, at the time of such surrender, the amount of dividends or
other distributions with a record date after the Effective Time theretofore paid
with respect to such whole shares of Revenge Common Stock or Series A Preferred
Stock in Revenge.
(e) Transfers of Ownership. If any certificate for shares of
Revenge Common Stock or Series A Preferred Stock in Revenge is to be issued in a
name other than that in which the certificate surrendered in exchange therefor
is registered, it will be a condition of the issuance thereof that the
certificate so surrendered will be properly endorsed and otherwise in proper
form for transfer and that the person requesting such exchange will have paid to
Revenge or any agent designated by it any transfer or other taxes required by
reason of the issuance of a certificate for shares of Revenge Common Stock or
Series A Preferred Stock in Revenge in any name other than that of the
registered holder of the certificate surrendered, or established to the
satisfaction of Revenge or any agent designated by it that such tax has been
paid or is not payable.
(f) No Liability. Notwithstanding anything to the contrary
in this Section 1.7, none of the Exchange Agent, the Surviving Corporation or
any party hereto shall be liable to a holder of shares of Revenge Common Stock
or Series A Preferred Stock in Revenge or First Chance Capital Stock for any
amount properly paid to a public official pursuant to any applicable abandoned
property, escheat or similar law.
1.8 No Further Ownership Rights in First Chance Common Shares. All
shares of Revenge Common Stock or Series A Preferred Stock in Revenge issued
upon the surrender for exchange of shares of First Chance Capital Stock in
accordance with the terms hereof (including any cash paid in respect thereof)
shall be deemed to have been issued in full satisfaction of all rights
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pertaining to such shares of First Chance Capital Stock, and there shall be no
further registration of transfers on the records of the Surviving Corporation of
shares of First Chance Capital Stock which were outstanding immediately prior to
the Effective Time. If, after the Effective Time, Certificates are presented to
the Surviving Corporation for any reason, they shall be canceled and exchanged
as provided in this Article I.
1.9 Lost, Stolen or Destroyed Certificates. In the event any
certificates evidencing shares of First Chance Capital Stock shall have been
lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such
lost, stolen or destroyed certificates, upon the making of an affidavit of that
fact by the holder thereof, such shares of Revenge Common Stock or Series A
Preferred Stock in Revenge as may be required pursuant to Section 1.6; provided,
however, that Revenge may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificates to deliver a bond in such sum as it may reasonably direct as
indemnity against any claim that may be made against Revenge or the Exchange
Agent with respect to the certificates alleged to have been lost, stolen or
destroyed.
1.10 Tax and Accounting Consequences. It is intended by the parties
hereto that the Merger shall (i) constitute a reorganization within the meaning
of Section 368 of the Internal Revenue Code of 1986, as amended (the "Code")
(and this Agreement is intended to constitute a plan of reorganization for
purposes of Section 368 of the Code).
1.11 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 the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of First Chance and Merger Sub, the officers and directors
of First Chance and Merger Sub are fully authorized in the name of their
respective corporations or otherwise to take, and will take, all such lawful and
necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF FIRST CHANCE
First Chance hereby represents and warrants to Revenge and Merger Sub,
subject to such exceptions as are clearly disclosed in the disclosure letter
supplied by First Chance to Revenge (the "First Chance Schedules") and dated as
of the date hereof, as follows:
2.1 Organization of First Chance. First Chance is a corporation duly
organized, validly existing and in good standing under the laws of Florida.
First Chance has the corporate power to own its properties and to carry on its
business as now being conducted. First Chance is duly qualified to do business
and in good standing as a foreign corporation in each jurisdiction in which the
failure to be so qualified would have a material adverse effect on the business,
assets (including intangible assets), financial condition or results of
operations or prospects of First Chance (herein-
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after referred to as a "Material Adverse Effect"). First Chance has delivered a
true and correct copy of its Articles of Incorporation and Bylaws, each as
amended to date, to Revenge.
2.2 First Chance Capital Structure.
(a) The authorized capital stock of First Chance consists of
such shares as are indicated on Schedule 2.2(a). First Chance Capital Stock, is
held of record by the persons, with the addresses of record and in the amounts
set forth on Schedule 2.2(a). All outstanding shares of First Chance Capital
Stock are duly authorized, validly issued, fully paid and non-assessable and not
subject to preemptive rights created by statute, the Articles of Incorporation
or Bylaws of First Chance or any agreement to which First Chance is a party or
by which it is bound.
(b) There are no Options, warrants, calls, rights,
commitments, convertible securities or agreements of any character, written or
oral, to which First Chance is a party or by which it is bound obligating First
Chance to grant, extend, accelerate the vesting of, change the price of,
otherwise amend or enter into any such option, warrant, call, right, commitment
or agreement except as indicated on Schedule 2.2(a). As a result of the Merger,
Revenge will be the record and sole beneficial owner of all First Chance Capital
Stock and rights to acquire or receive First Chance Capital Stock.
2.3 Subsidiaries. Except as set forth on Schedule 2.3, First Chance
does not have and has never had any subsidiaries or affiliated companies and
does not otherwise own and has never otherwise owned any shares of capital stock
or any equity or debt interest in, or control, directly or indirectly, any other
corporation, partnership, association, joint venture or other business entity.
2.4 Authority. First Chance has all requisite corporate power and
authority to enter into this Agreement and any Related Agreements (as
hereinafter defined) to which it is a party and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and any Related Agreement to which it 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 First Chance. First Chance's Directors
have unanimously approved the Merger and this Agreement. This Agreement has been
duly executed and delivered by First Chance and constitute the valid and binding
obligation of First Chance, enforceable in accordance with its terms except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, and similar laws of general applicability affecting creditors rights
generally and by general principles of equity (whether applied in a proceeding
at law or in equity). The execution and delivery of this Agreement and any
Related Agreement to which it is a party by First Chance do not, and, the
consummation of the transactions contemplated hereby and thereby will not,
conflict with, or result in any violation of, or default under (with or without
notice or lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any benefit under (any
such event, a "Conflict") (i) any provision of the Articles of Incorporation of
First Chance or (ii) any mortgage, indenture, lease, contract or other agreement
or instrument, permit, concession, franchise, license, domaine name
registration, judgment, order, decree, statute, law, ordinance, rule or regula
tion applicable to First Chance or its properties or assets. No consent, waiver,
approval, order or
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authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other federal, state, provincial, county,
local or foreign governmental authority, instrumentality, agency or commission
("Governmental Entity") or any third party (so as not to trigger any Conflict),
is required by or with respect to First Chance in connection with the execution
and delivery of this Agreement and any Related Agreements to which it is a party
or the consummation of the transactions contemplated hereby and thereby, except
for (i) the filing of the Certificate of Merger with the Delaware Secretary of
State, (ii) such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
federal and state securities laws and (iii) such other consents, waivers,
authorizations, filings, approvals and registrations which are set forth on
Schedule 2.4.
2.5 First Chance Financial Statements. Schedule 2.5 sets forth First
Chance's unaudited balance sheet as of December 31, 1998 and the related
unaudited statements of operations and cash flows for period from inception
through December 31, 1998 and the related unaudited statements of operations and
cash flows (collectively, the "First Chance Financials"). First Chance
Financials are correct in all material respects and have been prepared in
accordance with [generally accepted accounting principles ("GAAP")] applied on a
basis consistent throughout the periods indicated and consistent with each
other, except for the absence of footnotes in the case of unaudited First Chance
Financials. First Chance Financials present fairly the financial condition and
operating results of First Chance as of the dates and during the periods
indicated therein, subject, in the case of the unaudited financial statements,
to normal year-end adjustments, which will not be material in amount or
significance.
2.6 Tax and Other Returns and Reports. Except as set forth in Schedule
2.6: (i) First Chance has prepared and filed all required federal, state,
provincial, local and foreign returns, estimates, information statements and
reports ("Returns") relating to any and all Taxes concerning or attributable to
First Chance or its operations and such Returns have been completed in
accordance with applicable law; (ii) First Chance as of the Effective Time: (A)
will have paid or accrued all Taxes it is required to pay or accrue and (B) will
have withheld with respect to its employees all federal and state income taxes,
and other Taxes required to be withheld; (iii) First Chance is not presently
delinquent in the payment of any Tax nor is there any Tax deficiency
outstanding, proposed or assessed against First Chance, nor has First Chance
executed any waiver of any statute of limitations on or extending the period for
the assessment or collection of any Tax; and (iv) no audit or other examination
of any Return of First Chance is to the knowledge of First Chance presently in
progress, nor has First Chance been notified of any request for such an audit or
other examination. For the purposes of this Agreement, "Tax" or, collectively,
"Taxes", means any and all federal, state, local and foreign taxes, assessments
and other governmental charges, duties, impositions and liabilities, including
taxes based upon or measured by gross receipts, income, profits, sales, use and
occupation, and value added, ad valorem, transfer, franchise, withholding,
payroll, recapture, employment, excise and property taxes, together with all
interest, penalties and additions imposed with respect to such amounts and any
obligations under any agreements or arrangements with any other person with
respect to such amounts and including any liability for taxes of a predecessor
entity.
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2.7 Restrictions on Business Activities. There is no agreement
(noncompete or otherwise), judgment, injunction, order or decree to which First
Chance is a party or otherwise binding upon First Chance which has or
reasonably would be expected to have the effect of prohibiting or impairing any
business practice of First Chance, any acquisition of property (tangible or
intangible) by First Chance or the conduct of business by First Chance. Without
limiting the foregoing, First Chance has not entered into any agreement under
which First Chance is restricted from selling, licensing or otherwise
distributing any of its products or providing any of its services to any class
of customers, in any geographic area, during any period of time or in any
segment of the market.
2.8 Title to Properties; Absence of Liens and Encumbrances.
(a) First Chance owns no real property, nor has it ever
owned any real property. Schedule 2.8(a) sets forth a list of all real property
currently leased by First Chance, the name of the lessor and the date of the
lease and each amendment thereto. All such current leases are in full force and
effect, are valid and effective in accordance with their respective terms, and
there is not, under any of such leases, any existing default or event of default
(or event which with notice or lapse of time, or both, would constitute a
default).
(b) First Chance has good and valid title to, or, in the
case of leased properties and assets, valid leasehold interests in, all of its
tangible properties and assets, real, personal and mixed, used or held for use
in its business, free and clear of any liens, except as reflected in First
Chance Financials or in Schedule 2.8(b) and except for liens for taxes not yet
due and payable and such imperfections of title and encumbrances, if any, which
are not material in character, amount or extent, and which do not materially
detract from the value, or materially interfere with the present use, of the
property subject thereto or affected thereby.
2.9 Agreements, Contracts and Commitments. Except as set forth on
Schedule 2.9 First Chance does not have, is not a party to nor is it bound by
any agreement of any kind, including, without limitation, any agreements,
arrangements or plans relating to compensation or benefits of any kind or
employment liabilities or obligations of any kind.
Except for such alleged breaches, violations and defaults, and events
that would constitute a breach, violation or default with the lapse of time,
giving of notice, or both, as are all noted in Schedule 2.9, First Chance has
not breached, violated or defaulted under, or received notice that it has
breached, violated or defaulted under, any of the terms or conditions of any
agreement, contract or commitment (any such agreement, contract or commitment, a
"Contract"). Each Contract is in full force and effect and, except as otherwise
disclosed in Schedule 2.9, is not subject to any default thereunder of which
First Chance has knowledge by any party obligated to First Chance pursuant
thereto.
2.10 Interested Party Transactions. Except as set forth on Schedule
2.10, to First Chance's knowledge, no officer, director or affiliate (as defined
under Regulation C under the Securities Act of 1933, as amended (the "Securities
Act")) of First Chance (nor any ancestor, sibling,
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descendant or spouse of any of such persons, or any trust, partnership or
corporation in which any of such persons has or has had an economic interest),
has or has had, directly or indirectly, (i) an economic interest in any entity
which furnished or sold, or furnishes or sells, services or products that First
Chance furnishes or sells, or proposes to furnish or sell, or (ii) an economic
interest in any entity that purchases from or sells or furnishes to, First
Chance, any goods or services or (iii) a beneficial interest in any contract or
agreement set forth in Schedule 2.9.
2.11 Compliance with Laws. First Chance has complied in all material
respects with, is not in material violation of, and has not received any notices
of violation with respect to, any foreign, federal, state, provincial or local
statute, law or regulation.
2.12 Litigation. Except as set forth in Schedule 2.12, there is no
action, suit or proceeding of any nature pending, reasonably anticipated or to
First Chance's knowledge threatened against First Chance, its properties or any
of its officers, directors or employees, in their respective capacities as such.
Except as set forth in Schedule 2.12, there is no investigation pending or to
First Chance's knowledge, threatened against First Chance, its properties or any
of its officers, directors or employees by or before any Governmental Entity.
Schedule 2.12 sets forth, with respect to any pending or threatened action,
suit, proceeding or investigation, the forum, the parties thereto, the subject
matter thereof and the amount of damages claimed or other remedy requested. No
Governmental Entity has at any time challenged or questioned the legal right of
First Chance to offer, sell or license any of its products or services in the
present manner or style thereof.
2.13 Minute Books. The minute books of First Chance made available to
counsel for Revenge are the only minute books of First Chance and contain a
reasonably accurate summary of all meetings of directors (or committees thereof)
and stockholders or actions by written consent since the time of incorporation
of First Chance.
2.14 Environmental Matters. No action, proceeding, revocation
proceeding, amendment procedure, writ, injunction or claim is pending, or to
First Chance's knowledge, threatened concerning: (i) any material amount of any
substance that has been designated by any Governmental Entity or by applicable
federal, state, or local law to be radioactive, toxic, hazardous or otherwise a
danger to health or the environment excluding office and janitorial supplies
properly and safely maintained (a "Hazardous Material"); (ii) any actions of
First Chance, or, to First Chance's knowledge, as a result of any actions of any
third party or otherwise, in, on or under any property, including the land and
the improvements, ground water and surface water thereof, that First Chance has
at any time owned, operated, occupied or leased; or (iii) any permits regarding
the foregoing. To its knowledge, First Chance has not engaged in any activity
that could reasonably be expected to give rise to, and First Chance is not aware
of any fact or circumstance which could involve First Chance in, any
environmental litigation or impose upon First Chance any environmental
liability.
2.15 Brokers' and Finders' Fees. First Chance has not incurred, nor
will it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
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2.16 Employee Matters and Benefit Plans.
(a) Employee Benefit Plan. Schedule 2.16(a) contains a
complete and accurate list of each plan, program, policy, practice, contract,
agreement or other arrangement providing for employment, compensation,
severance, relocation, repatriation, expatriation, visas, work permits,
termination pay, deferred compensation, performance awards, stock or
stock-related awards, fringe benefits or other employee benefits or remuneration
of any kind, whether written or unwritten or otherwise, funded or unfunded,
which is or has been maintained, contributed to, or required to be contributed
to, by First Chance or any person or entity under common control with First
Chance (a "First Chance Affiliate") for the benefit of any current or former
employee, consultant, director of First Chance or any First Chance Affiliate
(the "First Chance Employees"), or with respect to which First Chance or any
First Chance Affiliate has or may have any liability or obligation (a "First
Chance Employee Plan or Agreement"). First Chance does not have any plan or
commitment to establish any new First Chance Employee Plan or Agreement, to
modify any First Chance Employee Plan or Agreement (except to the extent
required by law or to conform any such First Chance Employee Plan or Agreement
to the requirements of any applicable law, in each case as previously disclosed
to Revenge in writing, or as required by this Agreement), or to enter into any
First Chance Employee Plan or Agreement.
(b) Employee Plan Compliance. First Chance has performed in
all material respects all obligations required to be performed by it under, is
not in default or violation of, and has no knowledge of any default or violation
by any other party to each First Chance Employee Plan or Agreement, and each
First Chance Employee Plan or Agreement has been established and maintained in
all material respects in accordance with its terms and in compliance with all
applicable laws, rules and regulations.
(c) No Post-Employment Obligations. No First Chance Employee
Plan or Agreement provides, or reflects or represents any liability to provide,
retiree life insurance, retiree health or other retiree employee welfare
benefits to any person for any reason, except as may be required by applicable
law, and First Chance has never represented, promised or contracted (whether in
oral or written form) to any Employee (either individually or to Employees as a
group) or any other person that such Employee(s) or other person would be
provided with retiree life insurance, retiree health or other retiree employee
welfare benefit, except to the extent required by statute.
(d) Employment Matters. To its knowledge First Chance (i) is
and has been in compliance in all respects with all applicable laws, rules and
regulations respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Employees and the
withholding and reporting of amounts required by law or by agreement to be
withheld and reported with respect to wages, salaries and other payments to
Employees; (ii) is not liable for any arrears of wages or any taxes or any
penalty for failure to comply with any of the foregoing; and (iii) is not liable
for any payment to any trust or other fund governed by or maintained by or on
behalf of any governmental authority, with respect to unemployment compensation
benefits, social security or other benefits or obligations for Employees (other
than routine payments to be made in the normal course of business and consistent
with past practice).
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(e) Effect of Transaction. The execution of this Agreement
and the consummation of the transactions contemplated hereby will not (either
alone or upon the occurrence of any additional or subsequent events) constitute
an event under any First Chance Employee Plan or Agreement, trust, loan or other
arrangements that will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any First
Chance Employee.
(f) Labor. No work stoppage or labor strike against First
Chance is pending, threatened or reasonably anticipated. First Chance does not
know of any activities or proceedings of any labor union to organize any First
Chance Employees. First Chance has not engaged in any unfair labor practices
under applicable law. First Chance is not presently, nor has it been in the
past, a party to, or bound by, any collective bargaining agreement or union
contract with respect to First Chance Employees and no collective bargaining
agreement is being negotiated by First Chance.
2.17 Representations Complete. None of the representations or
warranties made by First Chance (as modified by First Chance Schedules), nor any
statement made in any Schedule or certificate furnished by First Chance pursuant
to this Agreement, or furnished in or in connection with documents mailed or
delivered to the stockholders of First Chance in connection with soliciting
their consent to this Agreement and the Merger (to the extent that such
documents were prepared by or include information provided by First Chance),
contains any untrue statement of a material fact, or omits to state any material
fact necessary in order to make the statements contained herein or therein, in
the light of the circumstances under which made, not misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF REVENGE AND MERGER SUB
Revenge and Merger Sub represent and warrant to First Chance as
follows:
3.1 Revenge Capital Structure.
(a) On the date hereof, the authorized capital stock of
Revenge consists of 50,000,000 shares of authorized Common Shares, of which
9,363,693 shares are issued and outstanding and 300,000 shares of authorized
Preferred Stock, of which no shares are issued and outstanding. On the date
hereof Revenge has 1,750,000 outstanding warrants to purchase common stock and
options outstanding to purchase 5,125,000 shares of common stock. There are
additional rights to acquire common stock of Revenge such that the total
outstanding rights to acquire shares of Revenge stock consistsof 5,611,900 and
the foregoing represents all rights to acquire capital stock of Revenge on the
date hereof. All outstanding shares of Revenge Capital Stock are duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights created by statute, the Articles of Incorporation or Bylaws of
Revenge or any agreement to which Revenge is a party or by which it is bound.
3.2 Organization, Standing and Power. Revenge is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each of Revenge and Merger Sub
has the corporate power to own its properties and to carry on its business as
now being conducted. Except with respect to that certain agreement entered into
between FINOVA Capital Corporation and Revenge on October 23, 1998, the
execution and delivery of this Agreement and the Related Agreements by Revenge
and Merger Sub do not conflict with, or result in any violation of, or default
under (with or without notice or lapse of time, or both), or give rise to a
right of termination, cancellation or acceleration of any obligation or loss of
any benefit under (i) any provision of the Certificate of Incorporation or
Bylaws of Revenge or Merger Sub or (ii) any agreement required to be filed as an
exhibit to any registration statement or report filed with the SEC (as defined
below) or any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Revenge or Merger Sub, which would have a Material
Adverse Effect on Revenge and its subsidiaries taken as a whole. No consent,
waiver, approval, order or authorization of, or registration, declaration or
filing with, any governmental Entity or any third party (so as not to trigger
any conflict), is required by Revenge in connection with the execution and
delivery of this Agreement or the Related Agreements or the consummation of the
transactions contemplated hereby and thereby, except for (i) the filing of the
Certificate of Merger with the Delaware Secretary of State, (ii) such consents,
waivers, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable federal and state securities laws
and federal, state or foreign antitrust laws, (iii) such consents, waivers,
authorizations, filings, approvals and registrations which are required to be
obtained by First Chance and (iv) such other consents, waivers, authorizations,
filings, approvals and registrations, the absence of which could not reasonably
be expected to have a
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Material Adverse Effect on the business or financial condition of Revenge and
its subsidiaries taken as a whole.
3.3 Authority. Revenge and Merger Sub have all requisite corporate
power and authority to enter into this Agreement and any Related Agreement to
which it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and any Related Agreement
to which it 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 Revenge and Merger Sub. This Agreement has been, and any Related
Agreements to which Revenge or Sub is a party have been duly executed and
delivered by Revenge and Merger Sub and constitutes the valid and binding
obligations of Revenge and Merger Sub, enforceable in accordance with its terms.
3.4 Revenge Shares. The shares of Revenge Common Stock to be issued
pursuant to the Merger will be duly authorized, validly issued, fully paid,
non-assessable and, when issued in accordance with the terms of this Agreement,
will be free and clear of any liens, claims, encumbrances or restrictions other
than (i) liens or encumbrances created by or imposed upon the holders thereof or
(ii) other than as required by the provisions of this Agreement; or (iii)
applicable federal or state securities laws.
3.5 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which Revenge has received any
notice of assertion against Revenge which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay any of the transactions contemplated
by this Agreement.
3.6 Compliance with Laws. Except as indicated on Schedule 3.6, Revenge
has complied in all material respects with, is not in material violation of, and
has not received any notices of violation with respect to, any foreign, federal,
state, provincial or local statute, law, or regulation.
3.7 Financial Statements. Revenge has delivered to First Chance (i)
copies of the audited balance sheet and the related statements of income,
changes in shareholders' equity, and cash flow (including the related notes) for
Revenge as of and for the period ended June 30, 1998 included in a registration
statement on Form 10 filed by Revenge pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") and (ii) copies of the unaudited balance
sheet and the related statement of income for Revenge as of December 31, 1998
and for the six month period then ended (the financial statements and notes
thereto described in (i) and (ii) above are referred to as the "Revenge
Financial Statements"). The Revenge Financial Statements as of the dates thereof
and for the periods covered thereby (A) are in accordance with the books and
records of Revenge which are accurate in all material respects and which have
been maintained in accordance with good business practices, and (B) present
fairly the financial position and the results of operations, changes in
shareholders' equity and cash flows of Revenge as of the dates and for the
periods indicated, in accordance with generally accepted accounting principles
consistently applied, except as disclosed,
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subject in the case of interim financial statements to normally recurring year
end adjustments and except for the absence of certain footnote information in
the unaudited statements.
3.8 Securities Reporting Documents. Since January 1, 1998 Revenge has
filed on a timely basis all reports ("Securities Reports") required to be filed
under the Exchange Act together with all amendments required to be made with
respect thereto, that it was required to file with the Securities and Exchange
Commission (the "SEC"). No Securities Report of Revenge contained any
information that was false or misleading with respect to any material fact or
omitted to state any material fact necessary to make the statements made therein
not misleading and each Securities Report of Revenge contained all information
required to be stated therein.
ARTICLE IIIA
SECURITIES ACT COMPLIANCE; REGISTRATION
3A.1 Securities Act Exemption. The Revenge Common Stock to be issued
pursuant to this Agreement initially will not be registered under the Securities
Act in reliance on the exemptions from the registration requirements of Section
5 of the Securities Act set forth in Section 4(2) thereof and/or Regulation D
promulgated thereunder. Each of First Chance's stockholders will provide Revenge
such representations, warranties, certifications, and additional information as
Revenge may reasonably request to ensure the availability of an exemption from
the registration requirements of the Securities Act.
3A.2 Stock Restrictions. In addition to any legend imposed by
applicable state securities laws or by any contract which continues in effect
after the Effective Time, the certificates representing the shares of Revenge
Common Stock issued pursuant to this Agreement shall bear one of two restrictive
legends (and stop transfer orders shall be placed against the transfer thereof
with Revenge's transfer agent), stating substantially as follows, either:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR
HYPOTHECATED EXCEPT IN COMPLIANCE WITH RULE 144 OR
RULE 145, AS APPLICABLE, IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, OR AN
OPINION OF COUNSEL, SATISFACTORY TO First Chance, THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR
A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION"; or
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
PURSUANT TO REGULATION D THEREUNDER AND MAY NOT BE SOLD,
TRANSFERRED,
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ASSIGNED, OR HYPOTHECATED ABSENT REGISTRATION EXCEPT IN
COMPLIANCE WITH RULE 144 OR AN OPINION OF COUNSEL,
SATISFACTORY TO REVENGE MARINE, INC., THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE ACT, OR A NO-ACTION LETTER FROM
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION."
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Consents. First Chance shall use its reasonable efforts to obtain
the consents, waivers and approvals under any of the Contracts as may be
required in connection with the Merger (all of such consents, waivers and
approvals are set forth in First Chance Schedules) so as to preserve all rights
of, and benefits to First Chance thereunder.
4.2 FIRPTA Compliance. First Chance shall deliver herewith to Revenge a
properly executed statement in a form reasonably acceptable to Revenge for
purposes of satisfying Revenge's obligations under Treasury Regulation Section
1.1445-2(c)(3).
4.3 Additional Documents and Further Assurances. Each party hereto, at
the request of the other party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
4.4 Voting Agreements. Concurrently with the execution of this
Agreement, First Chance will cause the persons and entities listed in the Voting
Agreement executed concurrently herewith to execute the Voting Agreement.
4.5 Blue Sky Laws. Revenge shall take such steps as may be necessary to
comply with the securities and blue sky laws of all jurisdictions which are
applicable to the issuance of the Revenge Common Stock pursuant hereto. First
Chance shall use its best efforts to assist Revenge as may be necessary to
comply with the securities and blue sky laws of all jurisdictions which are
applicable in connection with the issuance of Revenge Common Stock pursuant
hereto.
4.6 Closing. The closing of the transactions contemplated hereby shall
occur at such time and place as the parties hereto shall agree.
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4.7 Survival of Representations and Warranties. The representations and
warranties of each party hereto shall survive the closing and termination of
this Agreement.
4.8 Termination. This Agreement shall terminate if the closing shall
not have occurred by the 60th day after the date hereof.
ARTICLE V
CONDITIONS OF CLOSING
The obligation of each of the parties hereto to close the transactions
contemplated hereby shall be conditioned on each of the following:
5.1 Financing. First Chance shall have completed by the Effective Time
a financing in which the total cash proceeds to First Chance are at least
$1,000,000.
5.2 Due diligence. Each party hereto shall have completed a due
diligence review of the other satisfactory to such party's counsel.
5.3 Representations and Warranties True. The representations and
warranties of each party hereto shall be true and correct as of the closing
date.
5.4 No Material Adverse Change. As of the closing date no event shall
have occurred as to any party that would constitute a Material Adverse Effect.
"Material Adverse Effect" shall mean any event, occurrence or circumstance which
has or is reasonably likely to have a material adverse effect on the financial
condition, results of operations, business or properties of Revenge or First
Chance, taken as a whole.
5.5 Voting Agreement. The parties hereto shall have entered into at the
Closing Date a voting agreement on terms satisfactory to such party.
5.6 Shareholder Approval. The shareholders of First Chance shall have
approved the Merger in accordance with the Florida Business Corporation Act.
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ARTICLE VI
GENERAL PROVISIONS
6.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Revenge or Merger Sub, to:
Revenge Marine, Inc.
Attention: Jonathan Dariyanani
2051 NW 11th Street
Miami, FL 33125
Telephone No.: (305) 643-0334
Facsimile No.: (305) 643-0393
(b) if to First Chance, to:
First Chance Marine Finance, Inc.
Attention: Gerald C. Parker
101 Phillipe Parkway
Safety Harbor, FL 34695
Telephone No.: (727) 669-0040
Facsimile No.: (727) 726-5885
6.2 Interpretation. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The word "agreement" when used herein shall be deemed in
each case to mean any contract, commitment or other agreement, whether oral or
written, that is legally binding. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
6.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
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6.4 Entire Agreement; Assignment. This Agreement, the schedules and
Exhibits hereto, and the documents and instruments and other agreements among
the parties hereto referenced herein: (a) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof; (b) are not intended to confer upon any
other person any rights or remedies hereunder; and (c) shall not be assigned by
operation of law or otherwise except as otherwise specifically provided, except
that Revenge and Merger Sub may assign their respective rights and delegate
their respective obligations hereunder to their respective affiliates.
6.5 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
6.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto agrees that process may be served upon them in any
manner authorized by the laws of the State of Florida for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
6.7 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
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IN WITNESS WHEREOF, Revenge, Merger Sub and First Chance have caused
this Agreement to be signed by their duly authorized respective officers, all as
of the date first written above.
"REVENGE"
REVENGE MARINE, INC.
A NEVADA CORPORATION
By: /s/ William C. Robinson
---------------------------------------------
William C. Robinson, Executive Vice President
"FIRST CHANCE MARINE FINANCE ACQUISITION"
FIRST CHANCE MARINE FINANCE ACQUISITION, INC.
A DELAWARE CORPORATION
By: /s/ William C. Robinson
---------------------------------------------
William C. Robinson, President
"FIRST CHANCE"
FIRST CHANCE MARINE FINANCE, INC.
A FLORIDA CORPORATION
By: /s/ Gerald C. Parker
---------------------------------------------
Gerald C. Parker, CEO
***AGREEMENT AND PLAN OF REORGANIZATION***