U.S. Securities and Exchange Commission
Washington, DC 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest even reported):
Commission File Number: 3355254-26
SEAVIEW UNDERWATER RESEARCH, INC.
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of incorporation or organization)
87-0438640
(I.R.S. Employer Identification Number)
4229 Gulf Blvd., St. Pete Beach, FL 33706
727-866-1819
(Address and Phone Number of Principal Offices)
GOPHER, INC.
(Former name or former address, if changed since last report)
Item 1: Changes in Control of Registrant
(a) On March 24, 1999, Registrant acquired control of Seaview Underwater
Research, Inc., a Florida corporation, in exchange for 100 shares of the
Company's restricted common stock and $250,000 cash. No bank loans were involved
in the purchase.
On March 30, 1999, Registrant filed an amendment to its Articles of
Incorporation with the Secretary of State of the State of Nevada changing its
name to Seaview Underwater Research, Inc. Please refer to the Reorganization
Agreement attached hereto as Exhibit #2 for complete details regarding the
acquisition.
The current officers and directors of Registrant resigned and the following
officers and directors were appointed to fill the vacant terms until the next
annual election of officers and directors:
Richard L. McBride, President & Director
James Cox, Secretary, Treasurer & Director
Miles Gould, Director
Fred Leslie, Director
Charles Cato, Director
Brad Gould, Director
(1) (2) (3) (4)
Title of Name/Address Amount and Nature of Percent of
Class of Beneficial Owner Beneficial Ownership Class
- -------- ------------------- -------------------- ----------
Common Richard L. McBride 2,700,000 shares 45%
There are no arrangements or understandings among members of both the former and
new control groups and their associates with respect to the election of
directors of other matters.
Item 2: Acquisition or Disposition of Assets
On March 24, 1999, Registrant acquired 100 shares of Seaview Underwater
Research, Inc. (hereinafter "Seaview") in exchange for 5,000,000 shares of
restricted common stock and $250,000. Seaview, at the time of the acquisition,
was a company developing underwater camera equipment.
Item 5: Other Events
As discussed above in Item 1, Registrant's name was changed to Seaview
Underwater Research, Inc., and its headquarters were moved to 4229 Gulf Blvd.,
St. Pete Beach, FL 33706. Please refer to the Reorganization Agreement attached
hereto as Exhibit #2 for complete details regarding the acquisition.
Item 7: Financial Statements and Exhibits
(a) Below are the audited financial statements of Seaview for the year ended
December 31, 1998, as provided at the time of acquisition by Registrant.
Barbara Wright C.P. A
PO. Box 17665
Memphis, TN 38177
901-365-0055
To the Board of Directors
SeaView Underwater Research, Inc.
4229 Gulf Blvd.
St. Pete Beach, FL 33706
1 have audited the accompanying balance sheet of SeaView Underwater Research,
Inc. as of December 31, 1998, and statements of operation and shareholders
equity for the period of March 1, 1998 to December 31, 1998. These financial
statements are the responsibility of Company's management. My responsibility is
to express an opinion on these statements based on my audits.
I conducted my audits in accordance with generally accepted auditing standards.
These standards require that I plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatements. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. I believe my audits provide a reasonable basis for my opinion.
In my opinion, the financial statements referred to above present fairly, in all
material respects, the financial position of SeaView Underwater Research, Inc.
from March 1, 1998 to December 31, 1998 and the results of it's operations for
this period in conformity with generally accepted accounting principals.
The accompanying financial statements have been prepared assuming that the
company will continue as a going and profitable concern.
/s/ Bargara Wright C.P.A.
901-365-0055
Statement Of Assets, Liabilities, and Shareholders Equity
SeaView Underwater Research, Inc.
Year Ended December 31,1998
<TABLE>
<CAPTION>
<S> <C>
ASSETS
CURRENT ASSETS
Cash on Hand. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 14,515.51
Product & Parts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59,713.00
Total Current Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 74,228.51
FIXED/LONG TERM ASSETS
Furniture & Fixtures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 49,770.00
Injection Molds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,500.00
Shop Tools & Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,159.91
Show Booth & Display 7,800.00
Total Fixed/Long Term Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 96,229.91
Total Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 170,458.42
LIABILITIES
CURRENT LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00
SHAREHOLDERS EQUITY
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 500.00
Paid in Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 47,244.28
Retained Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 122,774.14
Total Shareholders Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 170,458.42
Total Liabilities and Shareholders Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 170,458.42
<FN>
* See Accompanying Notes And Accountants Report
</FN>
Statement Of Revenue
SeaView Underwater Research, Inc.
Year Ended December 31,1998
Revenue
Total Sales $635,485.58
Total Income $635,485.58
Cost of Sales:
Raw Materials $149,354.93
Total Cost of Sales $149,354.93
Gross Profit $486,131.00
Less: Expenses
Advertising $124,449.45
Wages 79,845.33
Merchant Account Charges 8,700.32
Rent 28,048.82
Office Supplies 5,161.22
Refunds/Warranty 32,140.72
Legal l2,600.00
Travel & Entertainment 25,537.67
Phone & Utilities 24,537.67
Freight 16,550.59
Postage 300.00
Misc. 9,299.37
Bank Charges 6,021.32
Total Expenses $363,356.86
Net Profit (Loss) $122,774.14
See Accompanying Notes And Accountants Report
</FN>
</TABLE>
<
Notes To Financial Statements
December 31, 1998
BUSINESS ACTIVITY
The company sells and manufactures underwater video cameras. They market their
products primarily direct to public, although they also have and expanding
dealer network. They have plans to expand both dealer sales, boat show sales,
and mass merchandising sales in the next year.
ORGANIZATION
The company was incorporated in the State of Florida on April 2,1998. The
company had no operations prior to the incorporation. The sole shareholder is
Richard McBride who has 100 shares of stock with a par value of $5.00 per share.
PROVISION FOR INCOME TAXES
The corporation is a sub-chapter "S" corporation. The taxes are the
responsibility of Richard McBride. He has stated he will file the corporate
return with his personal return as required by statute. Therefore no provisions
have been made for corporate taxes. Mr. McBride states that the corporation
will change it's status from an "S" to a "C" corporation for the 1999 tax year.
The corporation is on a calendar year.
COMMITMENTS AND CONTINGENCIES
At December 31, 1998 the corporation had no significant commitments and
contingencies.
/s/ Barbara Wright C.P.A.
901-365-0055
(c) Exhibits:
Exhibit No. 1 - Amendment to Articles of Incorporation
Exhibit No. 2 - Reorganization Agreement
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Seaview Underwater Research, Inc.
Dated: April 5, 1999 By:/s/Richard L. McBride,
President & Director
EXHIBIT 1
=========
CERTIFICATE OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF GOPHER, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE OF THE STATE OF NEVADA ON MARCH
30, 1999:
The undersigned, being the President and Secretary of Gopher, Inc., hereby
declare that the original Articles of the corporation were filed with the
Secretary of State of the State of Nevada on December 30, 1993. Pursuant to
the provisions of NRS 78.385-390, at a duly noticed and convened meeting of the
shareholders of Gopher, Inc. held on March 30, 1999, the Shareholders of the
corporation, representing a majority of the voting power of the company=s
Common Stock, unanimously voted for the following amendments to the Articles of
Incorporation:
ARTICLE I: NAME: The name of the corporation is: SeaView Underwater
Research, Inc.
THE UNDERSIGNED, being the President and Secretary of Gopher, Inc. hereby
declare and certify that the facts herein stated are true and, accordingly, have
hereunto set their hands this 30thday of March, 1999.
/s/Richard L. McBride, President
/s/ James Cox, Secretary
STATE OF FLORIDA )
) ss:
COUNTY OF PINELLAS )
On this 30th day of March, 1999, before me, a Notary Public, personally
appeared Richard L. McBride, personally known or proven to me to be the
President of Gopher, Inc. and that he executed the above instrument.
/s/
Jennifer L. Jurge, Notary Public
STATE OF FLORIDA )
) ss:
COUNTY OF PINELLAS )
On this 30th day of March, 1999, before me, a Notary Public, personally
appeared James R. Cox, personally known or proven to me to be the Secretary of
Gopher, Inc. and that he executed the above instrument.
/s/ Jennifer L. Jurge, Notary Public
EXHIBIT 2
==========
REORGANIZATION AGREEMENT
----------------------
THIS AGREEMENT is made this 24th day of March, 1999, by and among GOPHER,
Inc., a Nevada corporation, hereinafter called "GOPHER", SEAVIEW UNDERWATER
RESEARCH, INC., a Florida Corporation, hereinafter called "SEAVIEW", and
Shareholders of SEAVIEW, hereinafter called "SEAVIEW SHAREHOLDERS".
RECITALS:
WHEREAS, GOPHER desires to acquire 100% of the issued and outstanding
shares of the common stock of SEAVIEW, in exchange for 5,000,000 authorized but
unissued shares of the .001 par value common stock of GOPHER, pursuant to a plan
or reorganization within the meaning of IRC (1986), section 368(a)(1)(B), as
amended; and
WHEREAS, the SEAVIEW SHAREHOLDERS desires to exchange 100% of the issued
and outstanding shares of the common stock of SEAVIEW, currently owned by
SEAVIEW SHAREHOLDERS, in exchange for said 5,000,000 shares of GOPHER.
NOW THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, and to consummate the foregoing plan of
reorganization, the parties hereby adopt said plan of organization and agree as
follows:
ARTICLE I
EXCHANGE OF SECURITIES
1.01 Issuance of GOPHER shares. Subject to all of the terms and
conditions of this Agreement, GOPHER agrees to issue to SEAVIEW SHAREHOLDERS
5,000,000 fully paid and nonassessable unregistered shares of GOPHER common
stock in exchange for 100% of the outstanding SEAVIEW common stock, 100 shares,
all of which are currently owned by SEAVIEW SHAREHOLDERS.
1.02 Transfer of SEAVIEW shares. In exchange for GOPHER's stock being
issued to SEAVIEW SHAREHOLDERS as above described, SEAVIEW SHAREHOLDERS shall on
the closing date and concurrent with such issuance of GOPHER's common stock,
deliver to GOPHER 100% of the outstanding common stock of SEAVIEW.
ARTICLE II
INDEMNIFICATION OF FINDER / NO AFFILIATE
2.01 Indemnification of Finder / Broker. Negotiations relative to this
Agreement and related transactions have been conducted with the assistance of
CAPITAL GENERAL CORPORATION who is acting as a broker, finder and consultant on
behalf of both SEAVIEW and GOPHER, and ROBERT BRYAN, CHARLENE KALK, and ROBERT
LAPSLEY who are acting as consultants and finders on behalf of both SEAVIEW and
GOPHER. SEAVIEW, GOPHER and SEAVIEW SHAREHOLDERS agree to hold harmless and
indemnify CAPITAL GENERAL CORPORATION and ROBERT BRYAN, CHARLENE KALK, and
ROBERT LAPSLEY and their respective officers and directors from any and all
claim, demand, cause of action or suit raised or filed in connection with the
within Agreement or any related transaction or the operation or promotion of
SEAVIEW and/or GOPHER or the trading of their shares.
2.02 No Affiliate. All parties agree that after the exchange of shares
as provided above, that neither CAPITAL GENERAL CORPORATION nor any of its
officers and directors nor ROBERT BRYAN, CHARLENE KALK or ROBERT LAPSLEY have
any ongoing or other business relationship with any of the parties to this
Agreement, or their officers, directors and promoters, nor any family or other
relationship with such, and therefore have no ability to exercise any control or
influence over the management and conduct of GOPHER's business and therefore are
non affiliates of GOPHER.
ARTICLE III
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF
SEAVIEW SHAREHOLDERS AND SEAVIEW
SEAVIEW SHAREHOLDERS AND SEAVIEW hereby represent, agree and warrant that:
3.01 Organization. SEAVIEW is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, is duly qualified to do business and is in good standing in
any jurisdiction its business requires qualification.
3.02 Capital. The authorized capital stock of SEAVIEW consists of 100
shares of common stock, of which 100 shares are currently issued and
outstanding. All of the issued and outstanding shares are validly issued, fully
paid and nonassessable.
3.03 Subsidiaries. SEAVIEW does not have any subsidiaries.
3.04 Directors and Officers. Exhibit 3.04 to this Agreement contains
the names and titles of all directors and officers of SEAVIEW as of the date of
this Agreement.
3.05 Financial Statements. Exhibit 3.05 to this Agreement includes the
unaudited financial statements of SEAVIEW as of December 31, 1998.
3.06 Absence of Changes. Since the date of SEAVIEW's most recent
financial statements included in Exhibit 3.05 there have been no changes in its
financial condition or operations, except for changes in the ordinary course of
business.
3.07 Absence of Undisclosed Liabilities. As of the date of SEAVIEW's
most recent balance sheet included in Exhibit 3.05 it did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and weather due or to become due, that is not reflected
in such balance sheet.
3.08 Tax Returns. Within the times and in the manner prescribed by
law, SEAVIEW has filed all federal, state and local tax returns required by law,
has paid all taxes, assessments and penalties due and payable and has made
adequate provision on its most recent balance sheet for any unpaid taxes. There
are no present disputes as to taxes of any nature payable by SEAVIEW
3.09 Investigations of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein, GOPHER
and/or its attorneys shall have the opportunity to meet with accountants and
attorneys to discuss the financial condition of SEAVIEW. SEAVIEW shall make
available to GOPHER and/or its attorneys all books and records of SEAVIEW. If
the transaction contemplated hereby is not completed, all documents received by
GOPHER and/or its attorneys shall be returned to SEAVIEW and all information so
received shall be treated as confidential.
3.10 Patents, Trade Names and Rights. SEAVIEW owns or holds all
necessary patents, trademarks, service marks, trade names, copyrights and other
rights necessary to the conduct or proposed conduct of its business.
3.11 Compliance with Laws. SEAVIEW gas complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
affecting its properties or the operation of its business.
3.12 Litigation. SEAVIEW is not a party to, nor to the best of its
knowledge is there pending or threatened, any suit, action, arbitration or
legal, administrative or other proceeding, or governmental investigation
concerning its business, assets or financial condition. SEAVIEW is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court of agency, nor is it engaged in any lawsuits to
recover Moines due to it.
3.13 Authority. The Board of Directors of SEAVIEW authorized the
execution of this Agreement and the consummation of the transaction contemplated
herein and has full power and authority to execute, deliver and perform this
Agreement.
3.14 Ability to Carry Out Obligations. The execution and delivery of
this Agreement by SEAVIEW and the performance of its obligations thereunder in
the time and manner contemplated will not cause, constitute or conflict with or
result in (I) any breach of the provisions of any license, indenture, mortgage,
charter, instrument, certificate of incorporation, bylaw or other agreement or
instrument to which it is a party or by which it may be bound, nor will any
consents or authorizations of any party other than those hereto be required,
(ii) an event that would permit any party to any agreement or instrument to
terminate it or to accelerate the maturity of any indebtedness or other
obligation, or (iii) an event that would result in the creation or imposition of
any lien, charge or encumbrance on any asset.
3.15 Full Disclosure. None of the representatives and warranties made by
SEAVIEW SHAREHOLDERS or SEAVIEW herein or in any exhibit, certificate or
memorandum furnished or to be furnished by SEAVIEW SHAREHOLDERS or SEAVIEW, or
on either's behalf, contains any untrue statement of material fact, or omits any
material fact, the omission of which would be misleading.
3.16 Assets. SEAVIEW has good and marketable title to all of its
property free and clear of any and all liens, claims or encumbrances except as
may be indicated in Exhibit 3.05.
3.17 Indemnification. SEAVIEW SHAREHOLDERS and SEAVIEW agree to defend
and hold GOPHER and its officers and directors harmless against and in respect
of any and all claims, demands, losses, costs, expenses, obligations,
liabilities or damages, including interest, penalties and reasonable attorney's
fees, that it shall incur or suffer, which arise out of, result from or related
to any breach of this Agreement or failure by SEAVIEW SHAREHOLDERS or SEAVIEW to
perform with respect to any of its representative, warranties or covenants
contained in this Agreement or in any exhibit or other instrument furnished or
to be furnished under this Agreement.
3.18 Authority to Exchange. As of the date of this Agreement, SEAVIEW
SHAREHOLDERS hold 100% of the shares of SEAVIEW common stock. Such shares are
owned of record and beneficially by SEAVIEW SHAREHOLDERS and such shares are not
subject to lien, encumbrance or pledge. SEAVIEW SHAREHOLDERS hold authority to
exchange such shares pursuant to this Agreement.
3.19 Investment Intent. SEAVIEW SHAREHOLDERS understand and
acknowledge that the shares of GOPHER common stock offered for exchange or sale
pursuant to this Agreement are being offered in reliance upon the exemption from
registration requirements of the Securities Act of 1933, as amended ( the "Act"
), pursuant to Section 4(2) of the Act and the rules and regulations
promulgated thereunder, for nonpublic offerings and makes the following
representations, agreements and warranties with the intent that the same may be
relied upon in determining the suitability of SEAVIEW SHAREHOLDERS as a
purchaser of GOPHER common stock:
(a) The shares of GOPHER common stock are being acquired solely for the
account of SEAVIEW SHAREHOLDERS, for investment purposes only, and not with a
view to, or for sale in connection with, any distribution thereof, and with no
present intention of distributing or reselling any part of the GOPHER common
stock acquired;
(b) SEAVIEW SHAREHOLDERS agree not to dispose of their GOPHER common
stock or any portion thereof unless and until counsel for GOPHER shall have
determined that the intended disposition is permissible and does not violate the
Act or any applicable Federal or state securities laws, or the rules and
regulations thereunder;
(c) SEAVIEW SHAREHOLDERS agree that the certificate evidencing the
GOPHER common stock acquired pursuant to this Agreement will have a legend
placed thereon stating that they have not been registered under the Act or any
state securities laws and setting forth or referring to the restrictions on
transferability and sale of the GOPHER common stock, and that stop transfer
instructions shall be placed with the transfer agent for said certificate.
(d) SEAVIEW SHAREHOLDERS acknowledge that GOPHER has made all records and
documentation pertaining to GOPHER common stock available to them and their
qualified representatives, if any, and has offered such person or persons an
opportunity to ask questions and further discuss the proposed acquisition of
GOPHER common stock, and any available information pertaining thereto, with the
officers and directors of GOPHER, and that all such questions and information
requested have been answered by GOPHER and its officers and directors to
SEAVIEW SHAREHOLDERS satisfaction;
(e) SEAVIEW SHAREHOLDERS have carefully evaluated their financial
resources and investments position and the risks associated with this
transaction and are able to bear the economic risks of this transaction; and
they have substantial knowledge and experience in financial, business and
investment matters and are qualified as sophisticated investors, and are capable
of evaluating the merits and risks of this transactional; and they desire to
acquire the GOPHER common stock on the terms and conditions set forth;
(f) SEAVIEW SHAREHOLDERS are able to bear the economic risk of an
investment in the GOPHER common stock; and
(g) SEAVIEW SHAREHOLDERS understand that an investment in the GOPHER
common stock is not liquid and SEAVIEW SHAREHOLDERS have no need for liquidity
in this investment.
3.20 Receipt of Relevant Information. SEAVIEW SHAREHOLDERS and SEAVIEW
have received from GOPHER all financial and other information concerning GOPHER
and its promoters, officers and directors, including, but not limited to
Prospectus dated June 30, 1993, Annual Report on form 10-K for the year ended
December 31, 1997, forms 10-Q for the quarters ended June 30, 1998, and
September 30,1998, and forms 8-K dated April 17 and April 22, 1997, as filed
with the Securities and Exchange Commission, and all other documents and
information they have requested.
3.21 Public "Shell" Corporation. SEAVIEW and SEAVIEW SHAREHOLDERS are
aware that GOPHER has public shareholders and is a "shell" corporation without
significant assets or liabilities, and further that public companies are subject
to extensive and complex state, federal and other regulations. Among other
requirements, SEAVIEW SHAREHOLDERS and SEAVIEW are aware that a form 8-K must be
filed with the United States Securities and Exchange Commission within fifteen
(15)days after closing which filing requires that audited financial statements
be filed within sixty days after the filing of the 8-K, and they agree that such
responsibility shall not be the responsibility of CAPITAL GENERAL CORPORATION,
ROBERT BRYAN, CHARLENE KALK or ROBERT LAPSLEY their officers, directors or
employees nor the existing officers of GOPHER, but the sole responsibility of
the new officers and directors of GOPHER. SEAVIEW SHAREHOLDERS and SEAVIEW are
aware of the legal requirements and obligations of public companies, understand
that regulatory efforts regarding public shell transactions similar to the
transaction contemplated herein has been and is currently being exerted by some
states, the U.S. Securities and Exchange Commission and the National Association
of Securities Dealers, Inc. (NASD), and are fully aware of their
responsibilities, following closing, to fully comply will all securities laws
and regulations, and agree to do so.
3.22 No Assurance or Warranties. SEAVIEW SHAREHOLDERS and SEAVIEW
acknowledge that there can be no assurance regarding the tax consequences of
this transaction, nor can there be any assurance that the Internal Revenue Code
or the regulations promulgated thereunder will not be amended in such a manner
as to deprive them of any tax benefit that might otherwise be received. SEAVIEW
SHAREHOLDERS and SEAVIEW are relying upon the advice of their own tax advisors
with respect to the tax aspects of this transaction. No representations or
warranties have been made by GOPHER, CAPITAL GENERAL CORPORATION, ROBERT BRYAN,
CHARLENE KALK, or ROBERT LAPSLEY or their officers, directors, affiliates or
agents, as to the benefits to be derived by SEAVIEW SHAREHOLDERS or SEAVIEW in
completing this transaction, nor have any of them made any warranty or
agreement, expressed of implied, as to the tax or securities consequence of the
transaction contemplated by this Agreement or the tax or securities consequence
of any action pursuant to or growing out of this agreement.
ARTICLE IV
REPRESENTATIONS, AGREEMENTS AND WARRANTIES OF GOPHER
GOPHER represents, agrees and warrants that:
4.01 Organization. GOPHER is a corporation duly organized, validly
existing, and good standing under the laws of Nevada, has all necessary
corporate powers to own properties and carry on its business as now owned and
operated by it, is duly qualified to do business and is in good standing in each
of the jurisdictions where its business requires qualification.
4.02 Capital. The authorized capital stock of GOPHER consists of
100,000,000 shares of $.001 per value common stock of which 1,000,000 shares are
currently issued and outstanding. All of the issued and outstanding shares are
validly issued, fully paid and nonassesable. All currently outstanding shares
of GOPHER Common Stock have been issued in compliance with applicable federal
and state securities laws.
4.03 Subsidiaries. GOPHER has no subsidiaries and does not own any
interest in any other enterprise, whether or not such enterprise is a
corporation.
4.04 Directors and Officers. Exhibit 4.04 to this Agreement contains the
names and titles of all officers and directors of GOPHER as of the date of this
Agreement.
4.05 Financial Statements. Exhibit 4.05 to this Agreement includes
GOPHER's audited financial statements as of December 31, 1998. The financial
statements have been prepared in accordance with generally accepted accounting
principles and practices consistently followed throughout the period indicated
and fairly present the financial position of GOPHER as of the dates of the
balance sheets included in the financial statements and the results of
operations for the periods indicated.
4.06 Absence of Changes. Since the date of GOPHER's most recent balance
sheet, included in Exhibit 4.05, it did not have any material debt, liability or
obligation of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, that is not reflected in such balance sheet.
4.07 Absence of Undisclosed Liabilities. As of the date of GOPHER's most
recent balance sheet, included in Exhibit 4.05, it did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in such balance sheet.
4.08 Tax Returns. Within the times and in the manner prescribed by law,
GOPHER has filed all federal, state or local tax returns required by law, has
paid all taxes, assessments and penalties due and payable and has made adequate
provision on its most recent balance sheet for any unpaid taxes. There are no
present disputes as to taxes of any nature payable by GOPHER.
4.09 Investigation of Financial Condition. Without in any manner reducing
or otherwise mitigating the representations contained herein, SEAVIEW and
SEAVIEW SHAREHOLDERS shall have the opportunity to meet with GOPHER's
accountants and attorneys to discuss the financial condition of GOPHER. GOPHER
shall make available to SEAVIEW and SEAVIEW SHAREHOLDERS all books and records
of GOPHER.
4.10 Patents, Trade Names and Rights. GOPHER does not use any patents,
trade marks, service marks, trade names or copyrights in its business.
4.11 Compliance with Laws. GOPHER has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations
affecting its properties, securities or the operation of its business.
4.12 Litigation. GOPHER is not a party to, nor to the best of its
knowledge is there pending or threatened, any suit, action, arbitration or
legal, administrative or other proceedings, or governmental investigation
concerning its business, assets or financial condition. GOPHER is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court or agency, nor is it engaged in, nor does it
anticipate it will be necessary to engage in, any lawsuits to recover money or
real or personal property.
4.13 Authority. The Board of Directors of GOPHER has authorized the
execution of this Agreement and the transactions contemplated herein, and it has
full power and authority to execute, deliver and perform this Agreement.
4.14 Ability to Carry Out Obligations. The execution and delivery of this
Agreement by GOPHER and the performance of its obligations hereunder will not
cause, constitute, conflict with or result in (i) any breach of the provisions
of any license, indenture, mortgage, charter, instrument, certificate of
incorporation, bylaw or other agreement or instrument to which it is a party or
by which it may be bound, nor will any consents or authorization of any party
other than that those hereto be required, (ii) an event that would permit any
party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation, or (iii) an event that would
result in a creation or imposition of any lien, charge or encumbrance on any
asset.
4.15 Full Disclosure. None of the representations and warranties made by
GOPHER herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by it or on its behalf, contains or will contain any untrue statement
of a material fact, or omits any material fact the omission of which would be
misleading.
4.16 Assets. GOPHER has good and marketable title to all of its property
free and clear of any and all liens, claims and encumbrances, except as may be
indicated in Exhibit 4.05.
4.17 Indemnification. GOPHER agrees to indemnify, defend and hold
harmless against and in respect to any and all claims, demands, losses, cost,
expenses, obligations, liabilities or damages, including interest, penalties and
reasonable attorney's fees, incurred or suffered, which arise out of, result
from or relate to any breach of, or failure by GOPHER to perform, any of its
representations, warranties or covenants in this Agreement or in any exhibit or
other instrument furnished or to be furnished under this Agreement.
4.18 Validity of GOPHER Shares. The shares of GOPHER $.001 par value
common stock to be issued pursuant to this Agreement will be duly authorized,
validly issued, fully paid and nonassessable under Nevada law.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.01 Investigative Rights. Prior to the Closing Date each party shall
provide to the other parties, including the parties' counsel, accountants and
other authorized representatives, full access during normal business hours (upon
reasonable advance written notice) to such parties' books and records.
5.02 Conduct of Business. Prior to the Closing Date, each party shall
conduct its business in the normal course and shall not see, pledge or assign
any assets, without the prior written approval of the other parties. No party
shall amend its certificate of incorporation or bylaws, declare dividends,
redeem or sell stock or other securities, incur additional liabilities, acquire
or dispose of fixed assets, change employment terms, enter into any material or
long-term contract, guarantee obligations of any third party, settle or
discharge any balance sheet receivable for less that its stated amount, pay more
on any liability that its stated amount or enter into any other transaction
other than in the regular course of business.
ARTICLE VI
CLOSING
6.01 Closing. Closing is subject to "due dillegence" investigation by
GOPHER and SEAVIEW of each other. The closing (the "Closing") of this
transaction shall be held at the offices of ARTFIELD INVESTMENTS 15301 Ventura
Blvd. #300, Sherman Oaks CA 914103 , or such other place as shall be mutually
agreed upon, on or before March 15, 1999. (the "Closing Date"):
(a) GOPHER shall issue 5,000,000 shares of its $.001 per value common
stock in a certificate or certificates representing such shares.
(b) SEAVIEW SHAREHOLDERS shall deliver the certificates representing 100%
of the shares of SEAVIEW common stock (100 shares).
(c) GOPHER shall deliver a signed consent or minutes of its Board of
Directors, approving this Agreement and authorizing the matters set forth
herein;
(d) SEAVIEW shall deliver a signed consent or minutes of its Board of
Directors, approving this Agreement and authorizing the matters set forth
herein;
(e) GOPHER's existing Board of Directors will (i) elect new directors, as
named by SEAVIEW SHAREHOLDERS to act as officers and directors of GOPHER in the
capacities set forth in Exhibit 6.01 and (ii) the two current directors will
resign their positions with GOPHER effective the Closing Date.
ARTICLE VII
MISCELLANEOUS
7.01 Captions and Headings. The article and paragraph heading
throughout this Agreement are for convenience and reference only and shall not
be deemed to define, limit or add to the meaning of any provision of this
Agreement.
7.02 No Oral Change. This Agreement may not be changed or modified
except in writing signed by the party against whom enforcement of any change or
modification is sought.
7.03 Non-Waiver. Except as otherwise expressly provided herein, no
waiver of a covenant, condition or provision of this Agreement shall be deemed
to have been made unless executed in writing and signed by the party against
whom such waiver is charged. The failure of any party to insist in any one or
more cases upon the performance of any covenant, condition or provision of this
Agreement shall not be construed as a waiver or relinquishment for the future of
any such covenant, condition or provision. No waiver by any party of one breach
by the other shall be construed as a waiver with respect to a subsequent breach.
7.04 TIME of ESSENCE. Time is of the essence of this Agreement and of
each and every provision hereof.
7.05 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes all prior agreements and understandings.
7.06 CHOICE of LAW/ARBITRATION. This Agreement and its application,
shall be governed under the laws of the State of Nevada. Any and all disputes
and controversies of every kind and nature between the parties hereto arising
out of or relating to this Agreement relating to the existence, construction,
validity, interpretation or meaning, performance, enforcement, operation,
breach, continuance termination thereof shall be subject to an arbitration
mutually agreeable to the parties or, in the absence of such mutual agreement,
then subject to arbitration in accordance with the rule of the American
Arbitration Association. It is the intent of the parties hereto and the purpose
of this provision to make the submission to arbitration of any disputes or
controversy arising hereunder an express condition precedent to any legal or
equitable action or proceeding of any nature whatsoever.
7.07 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed original, but all of which when
taken together shall constitute one and the same instrument.
7.08 NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been given
on the date of service if served personally on the party to whom notice is to be
given, or on the third day after mailing if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage prepaid,
and properly addressed as follows:
GOPHER:
3098 So. Highland Drive, Suite 460
Salt Lake City, Utah 84106
SEAVIEW and SEAVIEW SHAREHOLDERS:
4229 Gulf Blvd.
St. Pete Beach, FL 33706
7.09 Expenses. The parties will pay their own legal, accounting and other
expenses incurred in connection with this Agreement.
7.10 Survival of Representations and Warranties. The representations,
warranties and covenants set forth in this Agreement or in any instrument,
certificate, opinion or other writing provided for in it, shall survive the
Closing Date.
7.11 Further Documents. The parties agree to execute any and all other
documents and to take such other action or corporate proceedings as may be
necessary or desirable to carry out the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
GOPHER, Inc.
/s/ Krista Nielson, President
SEAVIEW UNDERWATER RESEARCH, INC
/s/ Richard McBride, President
Shareholders of SEAVIEW UNDERWATER
RESEARCH, INC
/s/ Richard McBride, President
EXHIBITS TO REORGANIZATION AGREEMENT:
Exhibit 3.04
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The names and titles of all directors and officers of Seaview as of the date of
this Agreement are:
Richard L. McBride, President and Treasurer and Director
MILES Gould, Director
James R. Cox, Secretary and Director
Fred Leslie, Director
Brad Gould, Director
Charles Cato, Director
Exhibit 3.05
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Omitted. Included in Item 7 of this Form 8-K filing.
Exhibit 4.04
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The names and titles of all directors and officers of Gopher, Inc. as of the
date of this Agreement are:
Krista Nelson, President and Director
Sasha Belliston, Secretary, Treasurer and Director
Exhibit 4.05
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The audited financial statement of Gopher, Inc., as of December 31, 1998, has
previously been filed with the company's Form 10-K for the year ended December
31, 1998, filed electronically with the SEC.
Exhibit 6.01(e)
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The current officers and directors of Registrant resigned and the following
officers and directors were appointed by the Board of Directors to fill the
vacant terms until the next annual election of officers and directors:
Richard L. McBride, President & Director
James Cox, Secretary, Treasurer & Director
Miles Gould, Director
Fred Leslie, Director
Charles Cato, Director
Brad Gould, Director
