AGREEMENT AND PLAN OF SHARE EXCHANGE
This Agreement (hereinafter the "Agreement") is entered into effective as
of this 28th day of September, 2000 by and among Seair Group, Inc., a Nevada
corporation (hereinafter "Seair"); Our Foods Products Group, Inc., a Texas
corporation d/b/a Jardine's (hereinafter "Jardine's"), and the stockholders of
Jardine's (hereinafter the "Jardine's Stockholders"), all of whom are the
present owners of all the outstanding shares of common stock of Jardine's.
RECITALS:
WHEREAS, the Jardine's Stockholders own all of the issued and outstanding
shares of common stock of Jardine's which comprises 7,984,194 shares ( the
"Jardine's Shares"). Seair desires to acquire all of the outstanding Jardine's
Shares solely in exchange for restricted common stock of Seair, making Jardine's
a wholly-owned subsidiary of Seair; and
WHEREAS, the Jardine's Stockholders (as set forth on the attached Exhibit
"A" made a part hereof) desire to acquire common stock of Seair in exchange for
the Jardine's Shares, as more fully set forth herein.
WHEREAS, the parties desire this to be a tax free exchange as described in
the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, for the mutual consideration set out herein, and other good
and valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. SHARE EXCHANGE. The Jardine's Stockholders are the present owners of all
of the issued and outstanding Jardine's Shares. It is hereby
agreed that all of the Jardine's Shares shall be acquired by Seair in exchange
solely for shares of Seair restricted common stock (the "Seair Shares").
2. DELIVERY OF SHARES. Seair and the Jardine's Stockholders agree that on
the Closing Date or at the Closing as hereinafter defined, all outstanding
Jardine's Shares shall be delivered to Seair in exchange for Seair Shares.
(a) The Seair Shares will, subject to the conditions set forth herein,
on the Closing Date or at the Closing, be delivered to the Jardine's
Stockholders in exchange for their Jardine's Shares on the basis of 3.142424
Seair Shares for each one (1) Jardine's Share.
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(b) At Closing, Seair shall, subject to the conditions set forth
herein, issue a total of 25,089,723 Seair Shares to the Jardine's Stockholders
in accordance with Exhibit "A". Such Seair Shares shall bear the following or
similar restrictive legend :
The shares of common stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act") and may not
be offered, sold, assigned, pledged, hypothecated or otherwise transferred
unless (1) they are registered under the Act or (2) the holder has delivered to
the issuer an opinion of counsel, which opinion shall be satisfactory to the
issuer, to the effect that there is an available exemption from registration
under the Act and any applicable state securities laws or that registration is
otherwise not required.
(c) Unless otherwise agreed by Seair and the Jardine's Stockholders,
this transaction shall close only in the event Seair is able to acquire all of
the outstanding Jardine's Shares.
3. OUTSTANDING SECURITIES. As of the Closing Date each of the following
shall occur:
(a) Each one (1) Jardine's Share issued and outstanding immediately
prior to the Closing Date shall be exchanged for 3.142424 Seair Shares.
Thereafter, all such Jardine's Shares shall be deemed to be owned by Seair. The
holder of such certificates previously evidencing the Jardine's Shares
outstanding immediately prior to the Closing Date shall cease to have any rights
with respect to such Jardine's Shares except as otherwise provided herein or by
law.
(b) The 2,787,747 shares of Seair common stock previously issued and
outstanding prior to the Closing will remain outstanding.
4. POST-ACQUISITION EVENTS. Upon Closing, the following shall be
accomplished:
(a) The resignation of the existing Seair officers and directors and
the appointment of new officers and directors as described in Section 11.(f)
hereof.
(b) Seair shall promptly fulfill its responsibility to file a Current
Report on Form 8-K with the Securities and Exchange Commission ("SEC").
(c) Seair shall immediately file an Amendment to its Articles of
Incorporation (i) changing its name to "Global Gourmet, Inc.", (ii) increasing
the authorized
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common stock to 50,000,000 shares, and (iii) provide that it no longer be
subject to NRS 78.378 to 78.3793, inclusive and NRS 78.411 to 78.444, inclusive.
5. OTHER MATTERS.
(a) Prior to Closing, there shall be no stock dividend, stock split,
recapitalization, or exchange of shares with respect to or rights issued in
respect of, Seair's capital stock after the date hereof and there shall be no
dividends paid on Seair's capital stock.
(b) Seair shall have received all requisite Board of Directors,
stockholder and other approvals, if any, of the matters set forth herein.
(c) Seair agrees that it will cause its transfer agent, without
unnecessary delay, to transfer those outstanding Seair shares of Common Stock
that are publicly resold pursuant to the resale provisions of Rule 144 of the
Securities Act of 1933, as amended.
6. SURRENDER AND ISSUANCE OF SECURITIES. On or as soon as practicable after
the Closing Date the Jardine's Stockholders shall surrender for cancellation
certificates representing their Jardine's Shares, against delivery of
certificates representing the Seair Shares for which their Jardine's Shares are
to be exchanged at Closing.
7. REPRESENTATIONS OF THE JARDINE'S STOCKHOLDERS. The Jardine's
Stockholders hereby severally, but not jointly represent and warrant to the best
of their knowledge and belief as follows, which warranties and representations
shall also be true as of the Closing Date:
(a) Except as may be set forth in Exhibit "A" attached hereto and made
a part hereof, the Jardine's Shares are free from claims, liens, or other
encumbrances, and the Jardine's Stockholders have good and marketable title to,
and the unqualified right to transfer and dispose of, such Jardine's Shares.
(b) Except with respect to potential transfers between Jardine's
Stockholders, the Jardine's Stockholders have no present intent to sell or
dispose of the Seair Shares and are under no binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the Seair Shares
(c) Each Jardine's Stockholder has the power to enter into this
Agreement and to carry out his/her/its obligations hereunder. This Agreement has
been duly executed by each Jardine's Stockholder, and constitutes the valid and
binding obligation of each Jardine's Stockholder and is enforceable against each
Jardine's Stockholder in accordance
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with its terms except as such enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting enforcement of creditors' rights
generally or by general principles of equity. Each Jardine's Stockholder is an
"accredited investor" as defined in Regulation D promulgated under the
Securities Act of 1933, as amended ( the "Securities Act") and/or otherwise has
such knowledge and experience in investment and business matters that he/she/it
is capable of evaluating the merits and risks of an investment in the Seair
Shares.
8. REPRESENTATIONS REGARDING JARDINE'S. Jardine's hereby represents and
warrants as follows, each of which representations and warranties shall also be
true as of the Closing Date:
(a) Except as noted on Exhibit "A", the Jardine's Stockholders listed
on the attached Exhibit "A" are the sole owners of record and beneficially own
all of the issued and outstanding Jardine's Shares.
(b) The Jardine's Stockholders, are the sole registered holders of the
issued and outstanding Jardine's Shares as set forth in Exhibit "A";
(b) Jardine's has no outstanding or authorized capital shares,
warrants, options or convertible securities other than as described in Exhibit
"A", attached hereto.
(c) Since June 30, 2000 there has not been any material adverse
changes in the financial position of Jardine's except changes arising in the
ordinary course of business, which changes will in no event materially and
adversely affect the financial position of Jardine's.
(d) Jardine's is not a party to any material litigation or any
governmental investigation or proceeding and, to the knowledge of Jardine's, no
such litigation or investigation is threatened.
(e) Jardine's is in good standing in its jurisdiction of
incorporation.
(f) Jardine's has (or, by the Closing Date, will have filed) all
material tax, governmental and/or related forms and reports (or extensions
thereof) due or required to be filed and/or has (or will have) paid or made
adequate provisions for all taxes or assessments which have become due as of the
Closing Date.
(g) Jardine's has not breached, and there is no pending or threatened
claim that Jardine's has breached any of the terms or conditions of any
agreements, contracts or commitments to which it is a party or its properties is
bound. Jardine's has previously given Seair copies of or access to all material
contracts, commitments and/or agreements to which
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Jardine's is a party including all relationships or dealings with related
parties or affiliates. The execution and performance hereof will not violate any
provision of applicable law or any agreement to which Jardine's is a party or by
which it or its properties is bound.
(h) Jardine's has no subsidiary corporations.
(i) Jardine's has made its corporate financial records, minute books,
and other corporate documents and records available for review to present
management of Seair prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(j) Jardine's has the corporate power to enter into this Agreement and
to perform its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions described herein have been
duly authorized by the Board of Directors of Jardine's. The execution and
performance of this Agreement does not and will not constitute a breach of any
material agreement, indenture, mortgage, license or other instrument or document
to which Jardine's is a party and will not violate any judgment, decree, order,
writ, or applicable rule, statute or regulation. The execution and performance
of this Agreement does not and will not violate or conflict with any provision
of the Articles of Incorporation, as amended or bylaws of Jardine's.
(k) All information regarding Jardine's which is set forth herein or
has otherwise been provided by Jardine's to Seair is true and accurate in all
material respects.
9. REPRESENTATIONS REGARDING SEAIR. Seair hereby represents and warrants as
follows, each of which representations and warranties shall also be true as of
the Closing Date:
(a) As of the Closing Date, the Seair Shares, to be issued and
delivered to all of the holders of Jardine's Shares hereunder will, when so
issued and delivered, constitute, duly authorized, validly and legally issued
Seair Shares, fully-paid and nonassessable.
(b) Seair has the corporate power to enter into this Agreement and to
perform its obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions described herein have been duly
authorized by all necessary corporate action, including being duly authorized by
the Board of Directors of Seair and by its shareholders as may be required by
law. This Agreement and the consummation of the transactions described herein
constitute the binding obligation of Seair, enforceable against Seair in
accordance with its terms. The execution and performance of this Agreement will
not constitute a breach of any material agreement, indenture, mortgage, license
or other instrument or document to which Seair is a party and will not violate
any judgment, decree, order, writ, or applicable rule, statute, or regulation.
The execution and
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performance of this Agreement will not violate or conflict with any provision of
the Articles of Incorporation or By-laws of Seair.
(c) Seair has delivered to Jardine's a true and complete copy of its
(i) Annual Report on Form 10-KSB and any amendments thereto for the year ended
December 31, 1999, as filed with the SEC ("Form 10-K"), (ii) Forms 10-QSB for
the quarters ended March 31, 1999 and June 30, 2000, as filed with the SEC
("Forms 10-Q"), (iii) Forms 8-K dated December 29, 1999 and March 6, 2000, as
filed with the SEC ("Forms 8-K"), (iv) Articles of Incorporation, as amended,
(v) Bylaws, (vii) state and federal tax returns for 1998, and 1999, (vii)
shareholder list dated August 1, 2000, (viii) copies of all Board of Directors
and stockholder minutes and consents, and (ix) unaudited balance sheet as of
August 31, 2000. As of their respective dates, such documents did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
audited financial statements for 1999 included in the Form 10-K have been
prepared in accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis (except as may be indicated therein or in the
notes thereto) and fairly present the financial position of Seair as of the
dates thereof and the results of its operations and changes in financial
position for the periods then ended. Seair's unaudited balance sheet as of
August 31, 2000 fairly presents the financial position of Seair as of such date.
Seair has one subsidiary as of the date hereof. Seair has no liabilities or
obligations of any nature (absolute, accrued, contingent or otherwise) which
were not properly reflected or adequately reserved against in accordance with
GAAP on the financial statements contained in the Seair Form 10-K and Forms
10-Q.
(d) Except as set forth on Schedule 9(d), since June 30, 2000, there
have not been any material adverse changes in the financial condition of Seair.
From the date hereof until the Closing Date, Seair shall not engage in any
activity other than activities in anticipation of and in furtherance of the
transactions described in this Agreement.
(e) Except as set forth on Schedule 9(e), neither Seair nor, to its
knowledge, any 10% or greater shareholder of Seair or any related party or
affiliate of Seair, is a party to or the subject of any pending material
litigation, claims, or governmental investigation or proceeding, and there are
no lawsuits, claims, assessments, investigations, or similar matters, to the
best knowledge of Seair, threatened or contemplated against or affecting Seair,
its properties, any of its 10% or greater shareholders, or any related party or
affiliate of Seair.
(f) Seair and each subsidiary of Seair as set forth on Schedule 9(f),
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; and Seair and each Subsidiary of Seair
presently has and at Closing shall have the corporate power to own its property
and to carry on its business as then being conducted
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and shall be duly qualified to do business in any jurisdiction where so required
except where the failure to so qualify would have no material negative impact.
(g) Except as set forth on Schedule 9(g), Seair has filed (or, by the
Closing Date, will have filed) all federal, state, county and local income,
excise, property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date hereof
and has paid (or, by the Closing Date will have paid) or made adequate provision
in the Seair Financial Statements for the payment of all taxes, fees, or
assessments which have or may become due pursuant to such returns or pursuant to
any assessments received. Except as set forth in Schedule 9(g), Seair is not
delinquent or obligated for any tax, penalty, interest, delinquency or charge
and all such tax returns are complete and accurate and disclose all taxes
required to be paid by the Seair and each subsidiary of Seair for the periods
covered thereby and all taxes shown to be due on such tax returns have been
timely paid, other than with respect to taxes being contested in good faith by
Seair or its subsidiaries and disclosed on Schedule 9(g) attached hereto; (iii)
neither Seair nor any member of any current or former subsidiary of Seair has
waived or been requested to waive any statute of limitations in respect of
taxes; (iv) none of the tax returns referred to in this Section have been
examined by the Internal Revenue Service or the appropriate state, local or
foreign taxing authority or the period for assessment of the taxes in respect of
which such tax returns were required to be filed has expired, and Seair or its
subsidiaries has filed tax returns in the jurisdiction listed on Schedule 9(g)
attached hereto; (v) there is no action, suit, audit, claim or assessment
pending, proposed or, to the knowledge of Seair, threatened in writing, and, to
the knowledge of Seair, there is no investigation with respect to taxes of Seair
or its subsidiaries; (vi) all deficiencies asserted or assessments made as a
result of any examination of the tax returns referred to in this Section, if
any, have been paid in full or are currently being contested in good faith by
Seair or its subsidiaries and disclosed on Schedule 9(g); (vii) there are no
liens for taxes upon the assets of Seair or its subsidiaries except liens
relating to current taxes not yet due; (viii) as a result of the transactions
described in this Agreement, none of Seair or its subsidiaries will be obligated
to make a payment to an individual that would be a "parachute payment" to a
disqualified individuals as those terms are defined in the Code, without regard
to whether such payment is reasonable compensation for personal services
performed or to be performed in the future; (ix) no payments of compensation by
Seair are subject to the limitations imposed by Section 162(m) of the Code; (x)
all taxes which Seair or any of its subsidiaries are required by law to withhold
or to collect for payment have been duly withheld and collected, and have been
paid or accrued; (xi) Seair has not been a member of any consolidated group
other than as exists with respect to its current year; (xii) except as described
in this Agreement, there are no tax rulings, requests for rulings, or closing
agreements relating to Seair or any of its subsidiaries which could affect
Seair's liability for taxes for any period after the Closing; (xiii) neither
Seair nor any of its subsidiaries has filed a consent under Section 341(f) of
the Code or any comparable provision of state statutes; (xiv) the reserves for
taxes contained in the financial
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statements and carried on the books of Seair are adequate to cover all tax
liabilities as of the date of this Agreement; and (xv) Seair has no corporate
acquisition indebtedness, as described in Section 279(b) of the Code. Neither
Seair nor any subsidiary of Seair, is a party to any tax sharing or similar
agreement.
(h) Seair's authorized capital stock shall, immediately prior to
Closing, consist of:(i) 25,000,000 shares of common stock, $.001 par value, of
which not more than 2,787,747 shares will be issued and outstanding immediately
prior to Closing. All outstanding shares of capital stock of Seair are validly
issued, fully paid and nonassessable. As of the date of this Agreement there are
not (and as of the Closing Date there will not be) any existing options, calls,
warrants, preemptive rights or commitments of any character relating to the
issued or unissued capital stock or other securities of Seair. Neither Seair nor
any of its subsidiaries is as of the date of this Agreement, or will be as of
the Closing Date, a party to any oral or written employment, consulting or
severance agreement or any agreement similar to any of them.
(i) Except for its ownership of 100% of the issued and outstanding
common stock of World Seair Corporation, a Florida corporation, Seair does not
own, directly or indirectly, any of the capital stock or any other securities of
any other corporation or any equity, profit sharing, participation or other
interest in any corporation, partnership, joint venture or other entity.
(j) Seair has disclosed in writing all events, conditions and facts
materially affecting its business, financial condition or results of operations.
(k) The corporate financial records, minute books, and other documents
and records of Seair have been made available to Jardine's and the Jardine's
Stockholders prior to the Closing Date, during reasonable business hours and on
reasonable notice.
(l) Seair has not breached, and there is no pending or threatened
claim that Seair has breached any of the terms or conditions of any agreements,
contracts or commitments to which it is a party or by which it or its properties
is bound. The execution and performance hereof will not violate any provisions
of applicable law or any agreement to which Seair is subject. Seair hereby
represents that it is not a party to any material contract or commitment other
than appointment documents with its transfer agent, and that it has disclosed to
Jardine's and the Jardine's Stockholders all relationships or dealings with
related parties or affiliates.
(m) The Seair common stock is currently quoted under the trading
symbol "SEIR" on the OTC Bulletin Board and there are no stop orders in effect
with respect thereto.
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(n) All information regarding Seair which is set forth herein or has
otherwise been provided by Seair to Jardine's and the Jardine's Stockholders is
true and accurate in all material respects.
(o) Seair is current in all material respects with regard to its
reporting obligations with the SEC and, to Seair's knowledge, all reports filed
with the SEC are materially true, complete and accurate, and there is no
information or event required to be disclosed that has not been disclosed or
will not be disclosed in any of Seair's public filings as of the date hereof and
as of the Closing Date. All filings required to be made with the SEC or any
state or local government to effect the transactions described herein have or
will be made prior to Closing.
(p) The affirmative vote of the holders of a majority of the issued
and outstanding shares of Seair Common Stock entitled to vote is the only vote
of the holders of any class or series of the Seair's capital stock necessary to
consummate the transactions described in this Agreement, including amending the
Seair's Articles of Incorporation in order to (i) change the name of Seair to
"Global Gourmet, Inc.", (ii) increase the authorized shares to 50,000,000
shares, and (iii) provide that Seair no longer be subject to NRS 78.378 to
78.3793, inclusive, and 78.411 to 78.444, inclusive.
(q) The restrictions on change in control and business combinations
contained in applicable law (including but not limited to NRS Sections 78.378 to
78.3793, inclusive, and NRS Sections 78.441 to 78.444, inclusive, respectively),
are not applicable to Seair, Jardine's or Jardine's Stockholders with respect to
the transactions described herein.
(r) Seair does not have a class of securities registered pursuant to
Section 12 of the Securities Act of 1933, as amended; and
(s) Seair does not have 200 or more shareholders of record resident in
the State of Nevada and does not conduct business in the State of Nevada.
10. CLOSING. The Closing of the transactions described herein shall take
place on such date (the "Closing" or "Closing Date") as mutually determined by
the parties hereto when all conditions precedent have been met and all required
documents have been delivered, which Closing is expected to be on or about
September 11, 2000, unless extended by mutual consent of all parties hereto.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE JARDINE'S STOCKHOLDERS.
All obligations of the Jardine's Stockholders under this Agreement are subject
to the
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fulfillment, prior to or as of the Closing and/or the Effective Date, as
indicated below, of each of the following conditions:
(a) The representations and warranties regarding Seair contained in
this Agreement or in any certificate or document delivered pursuant to the
provisions hereof shall be true in all material respects at and as of the
Closing Date as though such representations and warranties were made at and as
of such time.
(b) Seair shall have performed and complied, in all material respects,
with all covenants, agreements, and conditions set forth herein, and shall have
executed and delivered all documents required by this Agreement to be performed
or complied with or executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the Board of Directors of Seair shall
have approved in accordance with applicable corporation law the execution and
delivery of this Agreement and the consummation of the transactions described
herein.
(d) On or before the Closing Date, Seair shall have delivered
certified copies of resolutions of the Board of Directors of Seair approving and
authorizing the execution, delivery and performance of this Agreement and
authorizing all of the necessary and proper action to enable Seair to comply
with the terms of this Agreement including the election of Jardine's nominees to
the Board of Directors of Seair and all matters outlined herein.
(e) The holders of a majority of Seair's issued and outstanding Common
Stock shall have duly approved all applicable matters described in this
Agreement in accordance with applicable law.
(f) At Closing, the existing officers and directors of Seair shall
have resigned in writing from all positions as directors and officers of Seair
upon the election and appointment of the Jardine's nominees.
(g) At the Closing, all instruments and documents delivered to the
Jardine's Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for Jardine's.
(h) At the Closing, upon consummation of the transactions, Seair shall
have the authorized capital as described in Section 9.(h) hereof.
(i) The Seair Shares to be issued to the Jardine's Stockholders at
Closing will be validly issued, nonassessable and fully-paid under applicable
corporation law and will be issued in compliance with all federal, state and
applicable securities laws.
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(j) At the Closing, Seair shall have delivered to the Jardine's
Stockholders an opinion of its counsel dated as of the Closing to the effect
that:
(i) Seair is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of incorporation;
(ii) Seair and its shareholders have authorized the execution,
delivery and performance of this Agreement by all necessary corporate action,
and subject to certain limitations relating to bankruptcy, insolvency,
reorganization. Fraudulent conveyance or similar laws, rules and regulations
affecting enforcement of creditors' rights and remedies generally, the Agreement
is a valid and binding obligation of Seair enforceable in accordance with its
terms.
(iii) The Seair Shares to be issued pursuant to Section 2 hereof,
when issued, will be duly and validly issued, fully-paid and nonassessable;
(iv) Seair has the corporate power to execute, deliver and
perform all of its obligations under this Agreement;
(v) Seair does not have a class of securities registered pursuant
to Section 12 of the Securities Act of 1933, as amended; and
(vi) Seair does not have 200 or more shareholders of record
resident in the State of Nevada and does not conduct business in the State of
Nevada.
(vii) The restrictions on acquisition of a controlling interest
and combinations with interested shareholders contained in NRS Sections 78.378
to 78.3739, inclusive, and 78.411 to 78.444, inclusive, respectively, are not
applicable to Seair, Jardine's or the Jardine's Stockholders with respect to the
transactions described in the Agreement.
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SEAIR. All obligations of
Seair under this Agreement are subject to the fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) The representations and warranties regarding the Jardine's
Stockholders and Jardine's contained in this Agreement or in any certificate or
document delivered pursuant to the provisions hereof shall be true in all
material respects at and as of the Closing as though such representations and
warranties were made at and as of such time.
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(b) The Jardine's Stockholders shall have performed and complied with,
in all material respects, all covenants, agreements, and conditions required by
this Agreement to be performed or complied with by them prior to or at the
Closing.
(c) The Jardine's Stockholders shall deliver a letter commonly known
as an "Investment Letter", in substantially the form attached hereto and made a
part hereof as Exhibit "B", acknowledging that the Seair Shares are being
acquired for investment purposes.
13. PRESS RELEASES. Seair and Jardine's shall consult with the other as to
the form and substance of any press release or other public disclosure of
matters related to this Agreement or any of the transactions described herein;
provided, however, that nothing in this Section 13 shall be deemed to prohibit
any party hereto from making any disclosure that is required to fulfill such
party's disclosure obligations imposed by law, including, without limitation,
federal securities laws, provided that the disclosing part shall provide the
non-disclosing party with reasonable advance notice thereof and any text of such
disclosure.
14. NO REVERSE SPLITS. Seair agrees not to effect any reverse split of its
common stock for a period of eigthteen (18) months from the Closing Date.
15. INDEMNIFICATION. For a period of two years from the Closing Date, Seair
agrees to indemnify and hold harmless the Jardine's Stockholders and Jardine's,
and the Jardine's Stockholders and Jardine's agree to indemnify and hold
harmless Seair at all times after the date of this Agreement against and in
respect of any liability, damage or deficiency, all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses including attorney's fees
incident of any of the forgoing, resulting from any material misrepresentations
made by an indemnifying party to an indemnified party, an indemnifying party's
material breach of a covenant, representation or warranty, or an indemnifying
party's nonfulfillment of any agreement hereunder, or from any material
misrepresentation in or omission from any certificate furnished or to be
furnished hereunder.
16. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations, warranties
and covenants made by any party in this Agreement shall survive the Closing and
the consummation of the transactions contemplated hereby for two years from the
Closing. All of the parties hereto are executing and carrying out the provisions
of this Agreement in reliance solely on the representations, warranties and
covenants and agreements contained in this Agreement and not upon any
investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
17. DOCUMENTS AT CLOSING. At the Closing, the following documents shall be
delivered:
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(a) The Jardine's will deliver, or will cause to be delivered, to
Seair the following:
(i) a certificate executed by the President and Secretary of
Jardine's to the effect that to the best of their knowledge and belief all
representations and warranties made regarding Jardine's under this Agreement are
true and correct as of the Closing, the same as though originally given to Seair
on said date;
(ii) certificate from the jurisdiction of incorporation of
Jardine's dated at or about the Closing to the effect that Jardine's is in good
standing under the laws of said jurisdiction;
(iii) corporate resolutions of Jardine's Board of Directors
authorizing the transactions described in this Agreement;
(iv) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this Agreement;
(v) all other items, the delivery of which is a condition
precedent to the obligations of Seair, as set forth herein;
(b) The Jardine's Stockholders will deliver or cause to be delivered
to Seair:
(i) The certificates representing their respective Jardine's
Shares as set forth on Exhibit "A" hereto;
(ii) Investment Letters in the form attached hereto as Exhibit
"B" executed by each of the Jardine's Stockholders;
(c) Seair will deliver or cause to be delivered to the Jardine's
Stockholders:
(i) stock certificates representing those securities of Seair to
be issued as a part of the exchange as described in Sections 2 and 6 hereof;
(ii) a certificate of the President and Secretary of Seair, to
the effect that, to the best of their knowledge and belief, all representations
and warranties of Seair made under this Agreement are true and correct as of the
Closing, the same as though originally given to the Jardine's Stockholders on
said date;
(iii) certified copies of resolutions adopted by Seair's Board of
Directors authorizing the transactions described herein and all related matters
and such
13
<PAGE>
consents of Seair's stockholders as are required to consummate the transactions
described herein;
(iv) certificates from the jurisdiction of incorporation of Seair
dated at or about the Closing Date that said corporation is in good standing
under the laws of said jurisdiction;
(v) opinion of Seair's counsel as described in Section 11.(j)
above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of all of the officers and directors of Seair;
and
(viii) all other items, the delivery of which is a condition
precedent to the obligations of the Jardine's Stockholders, as set forth in
Section 11 hereof.
18. FINDER'S FEES. Except as set forth on Schedule 18, Seair represents and
warrants to the Jardine's Stockholders and Jardine's, and the Jardine's
Stockholders and Jardine's represent and warrant to Seair, that none of them, or
any party acting on their behalf, has incurred any liabilities, either express
or implied, to any "broker" or "finder" or similar person in connection with
this Agreement or any of the transactions contemplated hereby. In this regard,
Seair on the one hand, and the Jardine's Stockholders and Jardine's, jointly and
severally, on the other hand, will indemnify and hold the other harmless from
any claim, loss, cost or expense whatsoever (including reasonable fees and
disbursements of counsel) from or relating to any such express or implied
liability.
19. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) TERMINATION. All obligations hereunder may be terminated at the
discretion of either Seair's or Jardine's Board of Directors if (i) the closing
conditions
14
<PAGE>
specified in Sections 11 and 12 are not met by September 11, 2000, unless
extended, or (ii) any of the representations and warranties made herein have
been materially breached.
(d) AMENDMENT. This Agreement may be amended only in writing as agreed to
by all the parties hereto.
(e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested, as
follows:
If to Seair: 6831 Edgewater
Commerce Parkway #1110
Orlando, FL 32810
Attn: Steven H. Kerr, President
With a copy to: Michelle Kramish Kain, Esq.
Michelle Kramish Kain, P.A.
750 Southeast Third Avenue, Suite 100
Ft. Lauderdale, FL 33316
If to Jardine's and the Our Food Products Group, Inc.
Jardine's Stockholders: 1 Chisolm Trail
Buda, TX 78610
Attn: Frederick Schulman, President
With a copy to: Joseph L. Cannella, Esq.
Fischbein Badillo Wagner Harding
909 Third Avenue
New York, NY 10022
(f) HEADINGS. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
15
<PAGE>
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed upon
or understood with respect to the subject matter hereof. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof.
(j) TIME. Time is of the essence.
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(l) GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Nevada, without regard
to conflicts or choice of law provisions of the State of Nevada.
(m) RESPONSIBILITY AND COSTS. Except as may be agreed by the parties,
all fees, expenses and out-of-pocket costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred by the parties hereto shall be borne solely and entirely
by the party that has incurred such costs and expenses unless such party has
agreed otherwise with any such person.
(n) PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except as
otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective heirs, legal representatives, successors and assigns
of the parties hereto. This Agreement shall not be deemed to
confer upon any person not a party hereto any rights or remedies
hereunder.
16
<PAGE>
INTENTIONALLY LEFT BLANK
17
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
STOCKHOLDERS OF OUR FOODS PRODUCTS SEAIR GROUP, INC.
GROUP, INC. d/b/a JARDINE'S
By: /s/Steven H. Kerr
Morgan Kent Group, Inc. ---------------------------------
By: /s/ Frederick Schulman Steven H. Kerr, President
---------------------------
Authorized Representative
OUR FOOD PRODUCTS GROUP, INC.
d/b/a JARDINE'S
By: /s/Frederick Schulman
---------------------------------
Frederick Schulman, President
/s/Daniel Matheson
------------------------
Daniel Matheson
/s/William T. Willis
------------------------
William T. Willis
/s/Newton Hamlin
------------------------
Newton Hamlin
/s/Julie P. Tedesco
------------------------
Julie P. Tedesco
/s/Mary Fogarty
------------------------
Mary Fogarty
/s/Lois Shapiro
------------------------
Lois Shapiro
18
<PAGE>
SCHEDULE 9(D)
Out of the $1,035,020 liability that appears on Seair's unaudited financial
statements for the quarterly period ended June 30, 2000 included in its Form
10-QSB filed with the Securities and Exchange Commission, of such amount, (i)
$971,890 represents payments owed by Seair to certain persons for services
rendered to Seair, (ii) $20,000 represents a payment for a stock subscription
for which shares had not been issued, and (iii) $39,130 represents a 1997
payroll tax liability of World Seair Corporation, Seair's wholly-owned
subsidiary. The liabilities referred to in (i) and (ii) were satisfied by the
issuance of an aggregate of 843, 215 shares of Seair's restricted common stock
in August and September, 2000.
19
<PAGE>
SCHEDULE 9(e)
NONE
20
<PAGE>
SCHEDULE 9(f)
SUBSIDIARIES
WORLD SEAIR CORPORATION (100%)
21
<PAGE>
SCHEDULE 9(g)
TAXES OWED AND/OR CONTESTED:
1. There currently is owed estimated payroll taxes of $39,130 for 1997 for
World Seair Corporation.
2. There are currently no taxes which are being contested.
JURISDICTIONS IN WHICH TAX RETURNS HAVE BEEN FILED FOR SEAIR AND ITS ONE (1)
SUBSIDIARY:
1. United States Internal Revenue Service.
2. State of Florida.
22
<PAGE>
SCHEDULE 18
100,000 shares of Seair Common Stock to be issued to I. R. International
Consultants for services rendered.
23
<PAGE>
EXHIBIT "A"
I. AUTHORIZED CAPITAL STOCK:
Class A Preferred Stock - 10,000,000 shares
Class B Preferred Stock - 10,000,000 shares
Class C Preferred Stock - 5,000,000 shares
Class A Common Stock - 10,000,000 shares
Class B Common Stock - 10,000,000 shares
II. ISSUED AND OUTSTANDING CLASS B COMMON STOCK:
<TABLE>
NAME NUMBER OF JARDINE'S SHARES NUMBER OF SEAIR SHARES
<S> <C> <C>
Morgan Kent Group, Inc. 6,033,694 18,960,425
Daniel Matheson 750,000 2,356,818
William T. Willis 100,000 314,242
Newton Hamlin 375,000 1,178,409
Julie P. Tedesco 25,000 78,561
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Mary Fogarty 500 1,571
Lois Shapiro 700,000 2,199,697
--------- ----------
7,984,194 25,089,723
</TABLE>
There are no claims, liens or other encumbrances on the 7,984,194 Jardine's
Shares.
III. OPTIONS FOR CLASS B COMMON STOCK
CURRENT
NAME OF CURRENT EXERCISE
HOLDER OPTIONS PRICE
F. Schulman 600,000 .50
J. Tedesco 175,000 .25
H.J. Trube 175,000 .75
K. Eckert 17,500 .01
C. Damon 10,000 .01
J. Nicholson 7,500 .01
G. Combs 7,500 .01
D. Matheson 7,500 .01
J. Moore 7,500 .01
S. Maysonave 7,500 .01
J. Damon 5,000 .01
R. Espinoza 3,000 .01
M. Fogarty 1,500 .01
A. Atwell 6,000 .50
J. Shull 1,000 .01
---------
1,031,500
IV. WARRANTS FOR CLASS B COMMON STOCK:
Warrant, held by KBK Financial, Inc., to purchase 177,778 shares of Class B
Common Stock, subject to adjustment, at $.01 per share, expiring May 15, 2006.
<PAGE>
V. WARRANTS FOR CLASS B PREFERRED STOCK:
(a) Warrant, held by KBK Financial, Inc., to purchase 277,778 shares
of Class B Preferred Stock, subject to adjustment, at $.01 per share, expiring
May 15, 2006.
<PAGE>
EXHIBIT "B"
INVESTMENT LETTER
TO THE BOARD OF DIRECTORS OF SEAIR GROUP, INC.
The undersigned hereby represents to Seair Group, Inc. (the "Corporation"),
that (1) the shares of the Corporation's common stock (the "Securities") which
are being acquired by the undersigned are being acquired for his own account and
for investment and not with a view to the public resale or distribution thereof;
(2) the undersigned will not sell, transfer or otherwise dispose of the
securities except in compliance with the Securities Act of 1933, as amended (the
"Act"); and (3) the undersigned is aware that the Securities are "restricted
securities" as that term is defined in Rule 144 or the General Rules and
Regulations under the Act.
The undersigned hereby agrees and acknowledges that he will not sell the
Securities outside of the United States in any manner which will allow the
Securities to become nonrestricted except upon registration in the United
States.
The undersigned further acknowledges that he or she is an "accredited
investor" as that term is defined in Regulation D promulgated under the Act or
has such knowledge and experience in financial matters and investments that he
or she considers himself or herself
<PAGE>
to be financially sophisticated. The undersigned further acknowledges that he or
she has had an opportunity to ask questions of and receive answers from duly
designated representatives of the Corporation concerning the terms and
conditions pursuant to which the Securities are being acquired. The undersigned
acknowledges that he has been afforded an opportunity to examine such documents
and other information which he or she has requested for the purpose of verifying
the information set forth in said documents.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
Any and all certificates representing the Securities, and any and all
Securities issued in replacement thereof or in exchange therefor, shall bear the
following legend, which the undersigned has read and understands:
The Securities represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act") and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
Securities may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the Act or
pursuant to an exemption from registration under the Act, the
availability of which is be established to the satisfaction of the
Corporation.
The undersigned further agrees that the Corporation shall have the
right to issue stop-transfer instructions to its transfer agent and acknowledges
that the Corporation has informed the undersigned of its intention to issue such
instructions.
Very truly yours,
<PAGE>
-------------------------------
(Please print name)
Date: September , 2000
