STOCK PURCHASE AND SALE AGREEMENT
BY AND AMONG
CENTENNIAL TECHNOLOGIES, INC.
CENTURY INDUSTRIES, INC.,
TRIAX TECHNOLOGY GROUP, LTD.
AND
THE PERSONS LISTED ON SCHEDULE I HERETO
EFFECTIVE AS OF
NOVEMBER 5, 1996
TABLE OF CONTENTS
Page
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1. Sale and Purchase of the TRIAX Shares............................................................
1.1 Sale and Purchase of the TRIAX Shares................................................. 1
1.2 Closing............................................................................... 2
2. Purchase Price and Method of Payment.............................................................
2.1 Purchase Price........................................................................ 3
2.2 Taxes ............................................................................. 3
3. Representations and Warranties of TRIAX and the Warranting Shareholders..........................
3.1 Capitalization of TRIAX............................................................... 4
3.2 Authorization; No Default............................................................. 4
3.3 Organization.......................................................................... 4
3.4 Subsidiaries.......................................................................... 5
3.5 Audited Financial Statements.......................................................... 5
3.6 Accounts Receivable; Inventories...................................................... 6
3.7 Tax Matters........................................................................... 6
3.8 Title to Properties................................................................... 6
3.9 Agreements, Contracts and Commitments................................................. 7
3.10 Employee Benefit and Pension Plans.................................................... 8
3.11 Required Consents; No Default......................................................... 8
3.12 Litigation............................................................................ 9
3.13 No Claim Regarding Stock Ownership or Sale Proceeds................................... 9
3.14 INTENTIONALLY DELETED ................................................................ 9
3.15 Intangible Property................................................................... 9
3.16 Compliance with Agreements and Laws...................................................10
3.17 Employee Relations....................................................................11
3.18 Absence of Certain Changes or Events..................................................11
3.19 Indebtedness to and from Officers, Directors and Shareholders.........................12
3.20 Conflicts of Interest.................................................................12
3.21 Certaion Payments.....................................................................13
3.22 TRIAX Personnel Information...........................................................13
3.23 No Transfer of TRIAX Shares at Undervalue.............................................13
3.24 Insurance of Properties...............................................................14
3.25 Repurchase Agreements and Letters of Credit...........................................14
3.26 Disclosure............................................................................14
3.27 Prepayment Penalties..................................................................14
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3.28 Redemption of Preference Shares.......................................................14
3.29 Limitations of Warranties............................................................15
4. Additional Representations of the Shareholders Regarding the TRIAX Shares........................
4.1 Representations from the Shareholders other than 3i Group.............................16
(a) Authority.........................................................................16
(b) Prohibitions on Transfer..........................................................16
(c) Required Consents.................................................................16
(d) Brokers and Finders...............................................................17
(e) Investment Purposes Only..........................................................17
(f) Unregistered Securities...........................................................17
4.2 Warranty by 3i Group..................................................................17
5. Representations and Warranties of Century and Centennial.........................................
5.1 Organization and Related Matters......................................................18
5.2 No Breach of Statute or Contract......................................................18
5.3 Authorization of Agreement............................................................18
5.4 No Implied Representations............................................................18
5.5 Capitalization........................................................................18
5.6 Officers..............................................................................19
5.7 Shareholders' Agreements..............................................................19
5.8 Litigation............................................................................19
5.9 No Prior Business.....................................................................19
5.10 Proposed Acquisition of Centennial Thailand...........................................19
5.11 No Material Adverse Change............................................................19
5.12 SEC Filings...........................................................................19
5.13 No Actual Knowledge of Breach.........................................................19
6. Conditions Precedent to the Obligations of Century and the Shareholders..........................
6.1 Opinion of Counsel to TRIAX and the Shareholders; Other Documents.....................20
6.2 Opinion of Counsel to Century.........................................................20
6.3 Employment Agreements; Non-Competition Agreements.....................................20
6.4 Termination of Certain Agreements.....................................................20
6.5 Repayment of Indebtedness.............................................................20
6.6 Waivers by Shareholders...............................................................20
7. Disclosure Letter................................................................................21
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8. Covenants of TRIAX and the Warranting Shareholders...............................................
8.1 Lock-Up Letters....................................................................... 21
8.2 Non-Disclosure of Information......................................................... 21
8.3 Non-Solicitation...................................................................... 21
8.4 Non-Competition....................................................................... 21
9. Indemnification .................................................................................
9.1 Subjects Indemnified Against by the Warranting Shareholders........................... 22
9.2 Conditions to Indemnification......................................................... 22
9.3 Payment for Indemnification .......................................................... 23
9.4 Survival of Indemnification........................................................... 23
9.5 Intent of Parties..................................................................... 23
10. Limitation of Liabilities .......................................................................
10.1 Basket ............................................................................. 23
10.2 Limitation to Amounts................................................................. 24
10.3 Pro Rata Liability.................................................................... 24
10.4 Limitations of Century and Centennial Liabilities..................................... 24
11. Incidental Registration Rights................................................................... 24
12. General..........................................................................................
12.1 Survival of Representations, Warranties and Covenants; Cumulative
Remedies............................................................................. 25
12.2 Press Releases........................................................................ 26
12.3 Payment of Expenses................................................................... 26
12.4 Governing Law......................................................................... 26
12.5 Notices............................................................................... 26
12.6 Successors and Assigns................................................................ 27
12.7 Headings; Construction................................................................ 27
12.8 Counterparts.......................................................................... 28
12.9 Waiver................................................................................ 28
12.10 Entire Agreement...................................................................... 28
12.11 Additional Actions.................................................................... 28
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LIST OF EXHIBITS
----------------
1.2(d)(i) Letters of Resignation and Release
1.2(d)(ii) Deed of Release by Shareholders other than 3i
1.2(d)(iii) Deed of Release by all Shareholders relating to the 3i Offer
Letter and TRIAX's Articles
2.1 Escrow Agreement
5.11 Unaudited Balance Sheet of DCI
6.1 Opinion of Counsel to the Shareholders of TRIAX
6.2 Opinion of Counsel to Century
6.6 Waiver and Release of Claims by Shareholders
LIST OF SCHEDULES
-----------------
I Names and Addresses of TRIAX Shareholders
1.1 Shares owned by TRIAX Shareholders
1.2(d) Appointment of Incoming Directors
1.2(e) Resolutions of Directors
2.1 Payments to TRIAX Shareholders
3.7(c) UK Taxation Warranties
5.1 Century Structure Chart
5.5(a) Authorized and Outstanding Shares of Common Stock of Century
5.5(b) Shareholders of Century as of the Closing Date
5.6 Officers and Directors of Century as of the Closing Date
6.4 Termination of Certain Agreements
6.5 Repayment of Indebtedness to 3i Group plc
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STOCK PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made this 5th day of November, 1996, by and among
Centennial Technologies, Inc., a Delaware corporation having its principal place
of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Centennial"),
Century Industries, Inc., a Delaware corporation having its principal place of
business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Century"), TRIAX
Technology Group, Ltd., an English corporation having its principal place of
business at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇. ▇▇▇▇▇▇ Road, ▇▇▇▇▇▇▇▇▇, St. Albans,
Hertfordshire, AL4 9PY ("TRIAX") and having two wholly owned subsidiaries (the
"Subsidiaries"), TRIAX Manufacturing Ltd. and TRIAX Engineering Ltd. (along with
TRIAX, collectively the "Acquired Companies" and individually, an "Acquired
Company"), and the Shareholders of TRIAX whose names and addresses are listed on
Schedule I attached hereto (collectively, the "Shareholders" and individually, a
"Shareholder").
RECITALS
WHEREAS, the Shareholders own the issued shares (the "TRIAX Shares") in
the share capital of TRIAX (the "TRIAX Share Capital") set forth opposite their
names in Schedule 1.1, which (except for preference shares of TRIAX held by 3i
Group plc ("3i Group"), which are being redeemed at Closing (as defined below))
shall constitute all of the issued share capital of TRIAX at the time of the
closing of the transactions contemplated hereby other than 300,000 new
preference shares that will be issued to Century at Closing; and
WHEREAS, Century wishes to purchase from the Shareholders, and the
Shareholders wish to sell to Century, the TRIAX Shares and complete ownership of
the Acquired Companies, on the terms and conditions set forth below; and
WHEREAS, Centennial will warrant certain representations made by
Century.
NOW, THEREFORE, intending to be legally bound hereby, and in
consideration of the mutual premises and the representations, warranties and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Sale and Purchase of the TRIAX Shares.
1.1 Sale and Purchase of the TRIAX Shares. Subject to the terms,
provisions and conditions of this Agreement and upon the basis of the
representations and warranties made herein, at the Closing (as defined below)
each Shareholder shall sell, assign and transfer to Century, and Century shall
purchase, acquire and accept, all of the TRIAX Shares set forth opposite each
Shareholder's name on Schedule 1.1 by delivery of a certificate or certificates
representing such
TRIAX Shares duly endorsed for transfer, or accompanied by a duly endorsed stock
transfer form, in consideration of the purchase price (the "Purchase Price") set
forth in Section 2 hereof.
1.2 Closing. The closing (the "Closing") of the sale and purchase of
the TRIAX Shares under this Agreement shall take place at the offices of TRIAX
immediately following the execution of this Agreement on or before the 5th day
of November, 1996 at 11:00 a.m., or such other date and place as shall be agreed
upon by the Shareholders and Century. The date of the Closing is hereinafter
referred to as the "Closing Date." All proceedings to be taken and all documents
to be executed and delivered by all parties at the Closing shall be deemed to
have been taken and executed simultaneously, and no proceedings shall be deemed
to have been taken nor any documents executed or delivered until all have been
taken, executed and delivered.
At the Closing:
(a) Century shall subscribe Three Hundred Thousand Pounds
Sterling ((pound)300,000), for new preference shares in TRIAX (the "New
Preference Shares"), the proceeds of which will be used to redeem all of the
outstanding preference shares of TRIAX (the "Outstanding Preference Shares").
(b) Each Shareholder shall deliver to Century certificates
representing the TRIAX Shares set forth opposite each Shareholder's name in
Schedule 1.1, duly endorsed or accompanied by duly executed stock transfer
forms, and Century shall deliver to the Shareholders payment therefor as set
forth in Section 2 hereof.
(c) The Shareholders other than 3i Group shall deliver the
Opinions of Counsel as described in this Agreement.
(d) TRIAX shall deliver (i) letters of resignation in the form
of Exhibit 1.2(d)(i) against the Acquired Companies by ▇▇. ▇. ▇. ▇▇▇ and ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the company secretaries of the Acquired Companies, and shall
appoint Mr. ▇▇▇▇▇▇ ▇▇▇▇ as a director and ▇▇▇▇▇▇▇▇▇ Registrars Limited as
secretary all of which resignations and appointments shall take effect on the
Closing Date, subject to the consent of the appointees on Form 288A, (ii) a Deed
of Release in the Form of Exhibit 1.2(d)(ii) from all of the Shareholders other
than 3i relating to claims they may have against the Acquired Companies, and
(iii) a Deed of Release in the Form of Exhibit 1.2(d)(iii) signed by all of the
Shareholders relating to the so-called 3i Offer Letter and certain provisions
under Triax's Articles of Association.
(e) TRIAX shall deliver adopted director resolutions as set
forth in Schedule 1.2(e).
(f) TRIAX shall deliver to Century's direction complete and
up-to-date Memorandum and Articles of Association, statutory books, and all of
the minute books, stock certificate books, certificates of incorporation and
company seals of the Acquired Companies.
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Century agrees to retain the originals of all such books and records until the
second anniversary of the Closing.
(g) The parties hereto (other than 3i Group) shall deliver
evidence of redemption of the Redeemed Shares (as defined below) and any and all
documents required by the provisions of this Agreement, including, without
limitation, Section 6 hereunder.
2. Purchase Price and Method of Payment.
2.1 Purchase Price. The Purchase Price for the TRIAX Shares shall be an
aggregate of $3,760,600 cash and 2,119,500 shares of Common Stock, $.01 par
value per share, of Century (the "Century Shares"), which shall be the total
Purchase Price for the TRIAX Shares (other than the 12,000 A Ordinary Shares
held by 3i Group and the Outstanding Preference Shares, both of which are to be
redeemed at Closing (the "Redeemed Shares"). In addition, Century shall
subscribe the sum of (pound)300,000 for the New Preference Shares, which sum
TRIAX shall employ forthwith to redeem the Outstanding Preference Shares. Upon
delivery by the Shareholders of stock certificates representing, in the
aggregate, all of the TRIAX Shares (other than the Redeemed Shares), Century
shall deliver the Purchase Price as follows:
(a) Payment to Shareholders at Closing. $3,619,340 and
1,907,550 of the Century Shares shall be paid and delivered to the
TRIAX Shareholders in the respective amounts set forth in Schedule 2.1.
(b) Payment into Escrow. $141,260 and 211,950 of the Century
Shares shall be deposited in escrow in accordance with the terms and
conditions of the Escrow Agreement, attached to this Agreement as
Exhibit 2.1, between the Warranting Shareholders (as defined in Section
3) and Century.
2.2 Taxes. Century will be responsible for any stamp tax obligation
arising by virtue of the sale or transfer of the TRIAX Shares to Century. Each
Shareholder, other than 3i Group, shall pay any and all income and other
personal taxes payable by him arising by virtue of his sale or transfer of his
TRIAX Shares. 3i Group shall be responsible for any and all income and other
taxes payable by 3i Group by virtue of its sale or transfer of its TRIAX Shares.
3. Representations and Warranties of TRIAX and the Warranting Shareholders.
Subject to the Disclosure Letter (as defined in Section 7) and Section
3.29, TRIAX and the Shareholders, other than 3i Group and ▇▇. ▇.▇. ▇▇▇ (the
"Warranting Shareholders"), severally represent and warrant to Century, upon
which representations and warranties Century relies, notwithstanding any
investigation by or on behalf of Century of the affairs of the Acquired
Companies or the Shareholders, as follows:
3
3.1 Capitalization of TRIAX. TRIAX's authorized share capital consists
of 100,000 Ordinary Shares, (pound)1 par value per share, of which 100,000
shares are issued on the date hereof, 50,000 A Ordinary Shares, (pound)1 par
value per share, of which 50,000 shares are issued on the date hereof (including
the 12,000 A Ordinary Shares being redeemed at Closing), and 300,000 Preference
Shares, lp par value per share, of which 300,000 are issued on the date hereof
(including the Outstanding Preference Shares, which will be redeemed at
Closing). All issued TRIAX Shares have been, and on the Closing Date will be,
duly and validly issued and are, or will be on such date, fully paid and
non-assessable. There are not, and on the Closing Date there will not be,
outstanding (i) any options, warrants or other rights to purchase any shares or
other securities of TRIAX; (ii) any securities convertible into or exchangeable
for shares in TRIAX; or (iii) any other commitments, arrangements, or
understandings of any kind for the issuance of additional shares of TRIAX or
options, warrants or other securities of TRIAX. No shares of TRIAX have been
repurchased by TRIAX or are held by TRIAX, other than the Outstanding Preference
Shares, which shall be redeemed at or prior to the Closing. The New Preference
Shares, when issued in accordance with the terms of this Agreement, shall be
validly issued and fully paid.
3.2 Authorization; No Default. This Agreement has been duly and validly
executed and delivered by TRIAX and the Warranting Shareholders. This Agreement
and all other agreements and obligations entered into and undertaken in
connection with the transactions contemplated hereby to which TRIAX and the
Warranting Shareholders are a party have been duly authorized and constitute the
valid and legally binding obligations of TRIAX and the Warranting Shareholders,
as applicable, enforceable against it and them in accordance with their
respective terms except insofar as enforceability may be limited by bankruptcy,
insolvency, or similar laws affecting the rights of creditors and general
equitable principles. The execution, delivery and performance by TRIAX and the
Warranting Shareholders of this Agreement and the agreements provided for
herein, and the consummation by TRIAX and the Warranting Shareholders of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation binding on the Acquired Companies, the Warranting
Shareholders or any of them, (b) violate the provisions of the Memorandum or
Articles of Association, as amended, or by-laws, as amended, of the Acquired
Companies in effect as of the date hereof, (c) violate any judgment, decree,
order or award of any court, governmental body or arbitrator applicable to the
Acquired Companies or the Shareholders, (d) result in the breach or termination
of, or constitute a default under, or cause any acceleration under, or cause the
creation of any encumbrance upon the properties or assets of the Acquired
Companies pursuant to any lien or mortgage, deed of trust or other instrument or
agreement to which the Acquired Companies or their properties are bound. This
Agreement and the transactions incidental to the Closing hereby have been
approved unanimously by the Warranting Shareholders.
3.3 Organization. The Acquired Companies have been duly incorporated
and are validly existing under the laws of England and have power and authority
(corporate and other) to own their properties and to carry on their businesses
(being the business of contract engineering and manufacturing) as now being
conducted. The Acquired Companies are duly qualified to do business and are in
good standing in all jurisdictions in which their ownership of property or the
character of
4
their businesses requires such qualification and where failure to be so
qualified would have an adverse effect on an Acquired Company. The Statutory
Books of the Acquired Companies, including the Memorandum and Articles of
Association, register of members and other statutory books of the Acquired
Companies, as amended to date, have been made available to Century prior to the
Closing and shall be complete and correct, and no amendments shall have been
made thereto or have been authorized since the date of inspection on November 2,
1996, except for those necessary to effect the redemption of the Redeemed Shares
and the issue of the New Preference Shares. The copies of the Statutory Books of
each Acquired Company provided to Century have embodied in them, or annexed to
them a copy of every such resolution as is referred to in Section 380 of the
Companies ▇▇▇ ▇▇▇▇ of England and Wales (the "Companies Act"). All charges in
favor of any Acquired Company have, if appropriate, been registered in
accordance with the provisions of Section 395 of the Companies Act.
3.4 Subsidiaries. Except for the wholly owned Subsidiaries, of which
TRIAX owns one hundred percent (100%) of the issued share capital, TRIAX owns
legally or beneficially no shares of any class in the capital, or debt interest
in, of any other corporation, partnership, joint venture, association,
organization or other business enterprise.
3.5 Audited Financial Statements
(a) Financial Statements. TRIAX has delivered to Century true
and complete copies of the financial statements of each of the Acquired
Companies as of and through March 31, 1996 audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "1995
Financial Statements") and unaudited financial statements as of and through
August 31, 1996 (the "Interim Financial Statements"). All such financial
statements are in accordance with the books and records of the Acquired
Companies, present fairly the financial position of the Acquired Companies as of
the respective dates and for the respective periods indicated and have been
prepared on a basis consistent with prior periods and practices. There have been
no intercompany transactions that have not been fully described in the Financial
Statements or the Disclosure Letter. The 1995 Financial Statements (as defined
below) will also include all required adjustments and will comply with all
applicable provisions of the Companies Acts 1985-1989 in England and Wales and
Financial Reporting Standards, and the Statements of Standard Accounting
Practice issued by the Accounting Standards Board Limited of England and Wales.
The 1995 Financial Statements and Interim Financial Statements are sometimes
referred to herein as the "Financial Statements."
(b) No Adverse Changes or Undisclosed Liabilities. Since
August 31, 1996, there has not occurred or arisen, whether or not in the
ordinary course of business, (i) any material adverse change in the assets,
financial condition, operations or business of the Acquired Companies, or (ii)
any event, condition or state of facts known to the Warranting Shareholders
which, in the reasonable opinion of the Warranting Shareholders, is likely to
materially and adversely affect the results of operations, business, financial
condition or prospects of the Acquired Companies. The Acquired Companies have no
material liabilities or obligations, whether fixed or accrued, or known
contingent liabilities, which are not fully reflected or provided for on, or
disclosed in the notes to, the Interim
5
Financial Statements except (i) liabilities and obligations incurred in the
ordinary course of business since August 31, 1996 and (ii) liabilities and
obligations permitted or contemplated by this Agreement.
3.6 Accounts Receivable; Inventories. Any accounts receivable reflected
on the Interim Financial Statements have been collected or, so far as the
Warranting Shareholders are aware, are collectible in the amounts shown, subject
to a reasonable allowance for doubtful accounts as set forth in the Interim
Financial Statements. So far as the Warranting Shareholders are aware, the
inventories shown on the Financial Statements and the inventories acquired since
August 31, 1996 consist of items of a quantity and quality usable or salable in
the normal course of the business of TRIAX. The value at which the inventories
are carried on the Financial Statements reflect the lower of TRIAX's cost or, so
far as the Warranting Shareholders are aware, net realizable market value.
3.7 Tax Matters.
(a) The Acquired Companies have paid (and, as to any of the
following which are payable after the Closing Date, TRIAX has properly
reserved in the 1995 Financial Statements in accordance with generally
accepted accounting principles) all corporation tax, income taxes,
capital gains taxes, withholding taxes, capital taxes, value-added
taxes, sales and use taxes, goods and services taxes, business taxes,
stamp duty, ad valorem taxes, property taxes, excise taxes, customs and
import duties, imposts, rates, levies, assessments and fees, and all
other taxes of every kind, character or description, including all
interest, fines, and penalties relating thereto, imposed by any
governmental or quasi-governmental authority, domestic or foreign,
whether federal, provincial, state, territorial or municipal
(collectively the "Taxes") required to be paid by the Acquired
Companies for all periods ending on or before March 31, 1996. No
outstanding assessments, reassessments, notices of determination, or
notices of any kind whatsoever, or increases in tax rates with respect
to any such Taxes have been served upon the Acquired Companies. The
Acquired Companies have duly filed or caused to be filed all reports,
returns and other documents relating to or covering all such Taxes and
have paid all such Taxes, which are due or required to be filed or paid
at or prior to the date of Closing;
(b) No action, suit, proceeding, investigation for fraud or
claim has occurred or is pending or, to the knowledge of the Warranting
Shareholders, is threatened, in respect of any Taxes for which an
Acquired Company is liable, nor has any deficiency or claim for any
Taxes been proposed or asserted.
(c) Additionally, TRIAX and the Warranting Shareholders
severally represent and warrant to Century as set forth in Schedule
3.7(c), "UK Taxation Warranties."
3.8 Title to Properties. The Acquired Companies have good and
marketable title to all of their properties and assets reflected in the Interim
Financial Statements or acquired since August 31, 1996 except properties and
assets disposed of in the ordinary course of business, and none of
6
such properties or assets is subject to any mortgage, debenture, lien, security
interest, lease, encumbrance, option or agreement for any of the same. So far as
the Warranting Shareholders are aware, the Acquired Companies have duly
performed and observed all covenants, conditions and agreements, statutory
requirements, planning consents, bylaws, orders and regulations affecting any of
the properties of the Acquired Companies and no notice of any breach of any such
matter has been received. Except for the property located at ▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, the Acquired Companies do not lease or own any right,
title or interest in or to real property of any kind. TRIAX is the proprietor of
▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ aforesaid registered at H.M. Land Registry with absolute
title. The Acquired Companies have received no notice of breach of the any
provisions of the Town and Country Planning ▇▇▇ ▇▇▇▇, the Town and Country
Planning ▇▇▇ ▇▇▇▇, the Highways ▇▇▇ ▇▇▇▇, the Licensing Act of 1988 or any other
applicable law in England and Wales and, to the knowledge of the Warranting
Shareholders, no breach with respect to such laws exists. The written replies of
Messrs. ▇▇▇▇▇▇ ▇▇▇▇ (solicitors to TRIAX and the Warranting Shareholders) to
written inquiries in relation to the said property raised by Messrs. ▇.▇. ▇▇▇▇▇▇
& Co. (solicitors to Century) are given to the best knowledge and belief of
TRIAX and the Warranting Shareholders.
3.9 Agreements, Contracts and Commitments. No Acquired Company is a
party to, or liable in connection with, or has made or granted any oral or
written:
(a) agreement or other obligation relating to the borrowing of
money;
(b) sales representative, distributor or franchise agreement;
(c) agreement for the future purchase by the Acquired
Companies of any material, equipment, services or supplies pursuant to
which the Acquired Companies are required to purchase an aggregate
amount in excess of $10,000 in any instance;
(d) agreement for the future sale by the Acquired Companies of
any materials, equipment, services or supplies valued in excess of
$50,000;
(e) guaranties, indemnifications or other like commitments of
the obligations, liabilities or indebtedness of any person (other than
warranties given in the ordinary course of business with respect to
services performed by the Acquired Companies, details of which are set
forth in the Disclosure Letter) or powers of attorney;
(f) agreement relating to (i) the sale of any of its assets
(other than sale of inventory or supplies in the ordinary course of the
businesses of the Acquired Companies, or (ii) the grant of any
preferential rights to purchase any of its assets or property or
requiring the consent of any party in connection with the transfer and
assignment of such assets or property;
(g) contracts, agreements or arrangements imposing a
non-competition or non- solicitation obligation on the Acquired
Companies;
7
(h) other agreement not otherwise disclosed in the Disclosure
Letter that is valued at or above $50,000; or
(i) agreement to which any of the provisions of Sections 320
or 330 of the Companies Act may apply.
All agreements listed in the Disclosure Letter are valid and in full
force and effect, unless otherwise indicated therein.
3.10 Employee Benefit and Pension Plans.
(a) The Disclosure Letter contains an accurate summary in
respect of employees and consultants of the Acquired Companies, the
material terms and conditions of their employment and the benefits,
including any pension plan, deferred compensation plan, retirement
income plan, stock option or stock purchase plan, profit sharing plan,
bonus plan or policy, employee group insurance plan, hospitalization
plan, disability plan or other employee benefit plan, program, policy
or practice, formal or informal, with respect to any of their
employees. The Disclosure Letter also lists the general policies,
procedures and work-related rules in effect with respect to employees
of the Acquired Companies, whether written or oral, including but not
limited to grievance policies and disciplinary procedures regarding
holidays, sick leave, vacation, disability and death benefits,
termination and severance pay, automobile allowances and rights to
company-provided automobiles and expense reimbursements. (The plans,
programs, policies, practices and procedures listed in the Disclosure
Letter are hereinafter collectively called the "Benefit Plans").
Complete and correct copies of all documentation establishing or
relating to the Benefit Plans listed in the Disclosure Letter have been
made available to Century.
(b) The Acquired Companies have made all contributions which
they have agreed to make to the pension plans of the employees of the
Acquired Companies.
(c) No claims are pending by any employee covered under the
Benefit Plans or by any other person which allege a violation of
governing law relative to the Benefit Plans or which may result in
liability to the Acquired Companies and, to the best of the knowledge
of the Warranting Shareholders, no basis for such a claim exists. No
former employees of the Acquired Companies are receiving from an
Acquired Company or are entitled to receive any pension or retirement
benefits.
3.11 Required Consents; No Default. Neither the execution and delivery
of this Agreement nor compliance by the Acquired Companies with its terms and
provisions, will require, on or before the Closing Date, the notice, consent,
approval, order or authorization of or any registration, declaration or filing
with any third party or governmental authority. The Acquired Companies are not
in default under or in violation of any provision of their respective Memorandum
8
of Association or Articles of Association, as amended. The Acquired Companies
are not in default under or in violation of any provision of any indenture,
mortgage, lease, loan or other agreement to which they are a party or are bound
or to which their properties are subject, except where such default would not
adversely affect the business, operations or financial condition of any Acquired
Company. So far as the Warranting Shareholders are aware, no fact, circumstance
or event exists which constitutes, or which with notice or lapse of time or both
would constitute, such a default or violation.
3.12 Litigation. (a) There is no action, suit or proceeding to which an
Acquired Company (as a plaintiff or defendant) pending or, to the best knowledge
of the Warranting Shareholders, threatened before any court or governmental
agency, authority, body or arbitrator, and, to the best knowledge of the
Warranting Shareholders, there is no basis for any such action, suit or
proceeding; (b) neither the Acquired Companies, nor, to the best knowledge of
the Warranting Shareholders, any officer or director of the Acquired Companies
has been permanently or temporarily enjoined by any order, judgment or decree of
any court or any governmental agency, authority or body from engaging in or
continuing any conduct or practice in connection with the business as currently
conducted or affecting the ability of the Acquired Companies and the Warranting
Shareholders to enter into this Agreement and effect the transactions incidental
to the Closing, and, to the best knowledge of the Warranting Shareholders, there
is no basis for any such order, judgment or decree.
3.13 No Claim Regarding Stock Ownership or Sale Proceeds. As of the
Closing Date, there has not been made or threatened by any person or entity any
claim asserting that such person or entity (a) is the legal holder or the
beneficial owner of, or has the right to acquire or to obtain beneficial
ownership of, any capital stock of, or any other voting, equity, or ownership
interest in, any of the Acquired Companies, or (b) is entitled to all or any
portion of the Purchase Price payable for the TRIAX Shares (other than to the
persons and in the corresponding amounts set forth in Schedule 2.1).
3.14 INTENTIONALLY DELETED
3.15 Intangible Property. The Disclosure Letter sets forth: (i) a
correct and complete list and, where appropriate, a description of, all items of
intangible property owned by, or used in connection with the business of, the
Acquired Companies, including, but not limited to, registered designs,
copyrights or trademarks, of the Acquired Companies, patents, trade names, trade
registrations, and applications for any of the foregoing but excluding
intangible property belonging to customers of the Acquired Companies (the
"Intangible Property"); and (ii) a correct and complete list of all licenses or
similar agreements or arrangements to which an Acquired Company is a party, as
licensor or licensee, with respect to the Intangible Property.
(a) The Acquired Companies are the sole and exclusive owners
of all rights, titles and interests in and to the Intangible Property
and thereby have the exclusive right to use all designs, labels and
packages in connection therewith, free and clear of all liens, security
interests, charges, encumbrances, equities or other adverse claims;
9
(b) The Acquired Companies have the right and authority to
use, and to continue to use after the Closing, the Intangible Property
and any trade secrets, know-how and other confidential information (the
"Confidential Information") in connection with the conduct of their
businesses in the manner presently conducted and to the best knowledge
of the Warranting Shareholders, such use or continuing use does not and
will not conflict with, infringe upon or violate any rights of any
other person, corporation or entity; and
(c) There are no outstanding, nor to the best knowledge of the
Warranting Shareholders, any threatened disputes or other disagreements
with respect to any licenses or similar agreements or arrangements
described in the Disclosure Letter or with respect to infringement by a
third party or any of the Intangible Property or Confidential
Information.
(d) The business carried on by the Acquired Companies does not
and is not likely to give rise to any liability pursuant to the Patents
▇▇▇ ▇▇▇▇, including sections 40 and 41 thereunder.
(e) Each Acquired Company has duly complied with all relevant
requirements of the Data Protection ▇▇▇ ▇▇▇▇ of England and Wales
including: (i) the data protection principles established in that Act;
(ii) requests from data subjects for access to data held by it; and
(iii) the requirements relating to the registration of data users. No
Acquired Company has received a notice of allegation from either the
data protection registrar or a data subject alleging non-compliance
with the data protection principles or prohibiting the transfer of data
to take place outside the United Kingdom. No individual has claimed or
will have the right to claim compensation from any Acquired Company
under the Data Protection ▇▇▇ ▇▇▇▇ of England and Wales for loss or
unauthorized disclosure of data.
3.16 Compliance with Agreements and Laws. The Acquired Companies have
all necessary licenses, permits and certificates, including environmental,
health and safety permits, from governmental, local and other competent
authorities required in connection with the conduct of their businesses as
currently conducted (collectively, the "Permits"). The businesses of the
Acquired Companies as conducted through the date hereof have not violated any
English or applicable foreign laws, regulations or orders (including, but not
limited to, any of the foregoing relating to employment discrimination,
occupational safety, environmental protection, hazardous waste, conservation, or
corrupt practices). The Acquired Companies have had no oral or written notice or
communication from any government or regulatory authority of any actual or
alleged noncompliance of any legal requirement or any actual or alleged
obligation on the part of any Acquired Company to undertake, or to bear all or
any portion of the cost of, any remedial action of any nature. No fact,
circumstance or event exists which constitutes, or which with notice or lapse of
time or both could constitute or result in a violation by any Acquired Company
of, or a failure on the part of any Acquired Company to comply with any legal
requirement or may give rise to any obligation on the part of any Acquired
Company to undertake, or to bear all or any portion of the cost of any remedial
action of any nature. No claims are pending against the Acquired Companies which
allege a violation of governing law or which may result in liability to the
Acquired Companies.
10
3.17 Employee Relations.
(a) There are no arrears in the payment by the Acquired
Companies of wages or social security taxes.
(b) No Acquired Company has recognized a labor union or other
body representing employees and, so far as the Warranting Shareholders
are aware, none of the employees of an Acquired Company is represented
by any labor union or other body representing employees;
(c) So far as the Warranting Shareholders are aware, there is
no pending labor strike or other material labor trouble affecting the
Acquired Companies.
(d) There is no pending or, so far as the Warranting
Shareholders are aware, threatened claim against the Acquired Companies
for wrongful dismissal or unfair dismissal, redundancy or other claim
under or pursuant to the Employment Rights Act of 1996 (or proceeding
legislation) of England and Wales.
(e) No contract of service exists between any Acquired Company
and a director or employee in relation to which any relevant
requirements of Section 319 of the Companies Act have not been
fulfilled.
(f) There are no schemes in operation under which any employer
of any Acquired Company is entitled to a commission or remuneration
calculated by reference to the whole part of the turnover, profits or
sales of any Acquired Company.
(g) All subsisting contracts of service to which any Acquired
Company is a party are terminable at any time on three months notice or
less without compensation in accordance with the Employment Rights ▇▇▇
▇▇▇▇ of England and Wales. No director of any Acquired Company has
given or received notice terminating his employment, except as
expressly contemplated in this Agreement and no such director will be
entitled to give such notice solely as a result of entering into and
consummating this Agreement.
3.18 Absence of Certain Changes or Events. Since August 31, 1996, the
Acquired Companies have not entered into any transaction that is not in the
usual and ordinary course of business and there has not been any:
(a) purchase redemption, retirement, or other acquisition by
any Acquired Company of any shares of any of its share capital (except
as may occur with respect to the redemption of the Redeemed Shares); or
declaration or payment of any dividend or other distribution or payment
in respect of shares of share capital;
(b) amendment to the charter, Memorandum or Articles of
Association or bylaws of any Acquired Company;
11
(c) increase by any Acquired Company of any bonuses, salaries,
or other compensation to any stockholder, director, officer, or to any
employee or consultant who earns more than (pound)25,000 per year or
entry into any employment, severance, or similar contract with any
director, officer, employee or consultant of the Acquired Company who
earns more than (pound)25,000 per year;
(d) termination, or receipt of notice of termination of any
license, distributorship, dealer, sales representative, joint venture,
credit, or similar agreement or customer relationship other than any
termination or receipt of notice of termination (i) in the ordinary
course of business and (ii) which does not materially adversely affect
the business, properties or assets of the Acquired Companies;
(e) cancellation or waiver of any claims at law or equity or
rights pertaining to the businesses of the Acquired Companies, except
as such cancellation or waiver does not materially adversely affect the
business, financial condition or prospects of the Acquired Companies
taken as a whole;
(f) material change in the accounting methods used by the
Acquired Companies; or
(g) agreement, whether oral or written, by any Acquired
Company to do any of
the foregoing.
3.19 Indebtedness to and from Officers, Directors and Shareholders. The
Acquired Companies are not indebted, directly or indirectly, to any person who
is an officer, director or shareholder of an Acquired Company or any affiliate
of any such person in any amount whatsoever other than for salaries for services
rendered during the then-current payment period or reimbursable business
expenses, and no such officer, director, shareholder or affiliate is indebted to
an Acquired Company for advances made to employees of an Acquired Company in the
ordinary course of business to meet reimbursable business expenses anticipated
to be incurred by such obligor. In addition, the Acquired Companies are not a
party to any agreement or arrangement whereby they engage in a transaction of
any kind with any affiliate except on terms and conditions no less favorable to
the Acquired Companies than would be customary for such transactions between
unaffiliated parties or upon terms and conditions on which similar transactions
with others could fairly be expected to be entered into. All agreements and
arrangements with any affiliate are fairly and accurately described in the
Disclosure Letter. For purposes of this Section 3.19, "affiliate" shall mean any
officer, director or 10% shareholder of an Acquired Company or any person or
entity controlled by such officers, directors or shareholders.
3.20 Conflicts of Interest. No officer, director or 10% shareholder of
an Acquired Company, nor, to the best knowledge of the Warranting Shareholders,
any affiliate of any such person (other than affiliates or investees of 3i Group
that may have entered into arms-length transactions with an Acquired Company in
the ordinary course of business), now has, or within the last year had, either
directly or indirectly:
12
(a) an equity or debt interest in any corporation,
partnership, joint venture, association, organization or other person
or entity which (i) furnishes or sells, or during such period furnished
or sold, services or products to an Acquired Company, (ii) purchases,
or during such period purchased, from an Acquired Company any goods or
services, or (iii) otherwise during such period did business with an
Acquired Company; or
(b) a beneficial interest in any contract, commitment or
agreement to which an Acquired Company is or was a party or under which
an Acquired Company is or was obligated or bound or to which any
property of an Acquired Company may be or may have been subject, other
than stock options and other contracts, commitments or agreements
between an Acquired Company and such persons in their capacities as
employees, officers or directors of the Acquired Company.
3.21 Certain Payments. No Acquired Company or director, officer, agent
or employee of any Acquired Company, or any other person associated with or
acting for or on behalf of any Acquired Company, has directly or indirectly
made, so far as the Warranting Shareholders are aware, any contribution, gift,
bribe, rebate, payoff, influence payment, kickback, or other payment to any
person, private or public, regardless of form, whether in money, property, or
services (i) to obtain favorable treatment in securing business, (ii) to pay for
favorable treatment for business secured, (iii) to obtain special concessions or
for special concessions already obtained, for or in respect of any Acquired
Company or any affiliate of an Acquired Company, or (iv) in violation of any
applicable law.
3.22 TRIAX Personnel Information. The Disclosure Letter contains a true
and complete list, as of the date of this Agreement, setting forth:
(a) The names and residence addresses of all directors and
officers of the Acquired Companies;
(b) The names of all persons, if any, holding powers of
attorney from an Acquired Company, and a summary statement of the terms
thereof;
(c) The name and address of each bank or other institution in
which an Acquired Company currently has established an account for
investment, deposit, checking, savings or borrowing, or through which
credit is extended, a brief description thereof, and the names and
titles of authorized signers and limits, if any;
3.23 No Transfer of TRIAX Shares at Undervalue. Those of the TRIAX
shares which were transferred between the Warranting Shareholders by transfers
approved by Board resolutions on January 2, 1996 were transferred by the
transferors for consideration the value of which, in money or money's worth, was
not significantly less than the value in money or money's worth, of the
consideration provided by the transferees.
13
3.24 Insurance of Properties. All of the policies of insurance are
listed in the Disclosure Letter and all premiums on such policies have been
paid. So far as the Warranting Shareholders are aware. The Acquired Companies
carry such insurance as is usually carried by companies of established
reputation engaged in the same or a similar business similarly situated and of
similar size. Complete and correct copies of each such policy have been made
available to Century prior to the execution of this Agreement.
3.25 Repurchase Agreements and Letters of Credit. Except as described
in the Disclosure Letter:
(a) The Acquired Companies are not now subject to any
agreement or commitment, which would require an Acquired Company to repurchase
any products sold to such customers or to adjust any price or grant any refund,
discount or other concession to such customer other than in accordance with the
Acquired Companies' standard warranty policy; and
(b) The Acquired Companies are not required to provide any
letters of credit, bonds or other financial security arrangements in connection
with any transactions with their suppliers or customers.
3.26 Disclosure. No representation or warranty by TRIAX or the
Warranting Shareholders in this Agreement or the Disclosure Letter, nor any
document furnished or to be furnished by or on behalf of the Warranting
Shareholders or TRIAX pursuant to this Agreement nor any document delivered to
Century pursuant to this Agreement contains any untrue or misleading statement
of a material fact or omits to state a material fact reasonably related to the
transactions covered by this Agreement. Each of the representations and
warranties is without prejudice to any other representation and warranty and,
except where expressly stated, no clause contained in the Agreement or the
Disclosure Letter governs or limits the extent or application of any other
clause. Unless otherwise specified, as used in this Agreement, a person will be
deemed to have knowledge or be aware of a fact or other matter if (i) such
individual is actually aware of such fact or other matter, or (ii) a prudent
individual could be expected to discover or otherwise become aware of such fact
or other matter in the course of conducting a reasonably comprehensive
investigation concerning the existence of such fact or other matter.
3.27 Prepayment Penalties. Except with respect to the loans from
Norwich Union Life Insurance Society and 3i Group no prepayment penalty or early
repayment compensation of any nature shall be due upon early repayment of any
indebtedness of the Acquired Companies outstanding as of August 31, 1996 or the
Closing Date, which penalty or compensation has not been waived by the creditor.
3.28 Redemption of Preference Shares. The receipt of (pound)300,000
plus accrued and unpaid dividends of (pound)9,320.54 by the holders of the
Outstanding Preference Shares at or prior to the Closing shall irrevocably and
conclusively constitute a full redemption of such Shares in accordance with the
provisions of Section 3.4 of TRIAX's Articles of Association, as amended.
14
3.29 Limitations of Warranties.
(a) Certain Changed Circumstances After the Closing. The
Warranting Shareholders shall have no liability under the
representations and warranties in Section 3 (including Schedule 3.7(c))
and 4 herein (a "Claim") to the extent arising from:
(i) matters disclosed in the Disclosure Letter
(except with respect to the matter disclosed in the Disclosure
Letter under "Specific Disclosure - Schedule 3.7(c), paragraph
14" relating to certain V.A.T. taxes);
(ii) the passage of, or change in, after the date of
this Agreement, any law, regulation or rule of any government
department, agency or regulatory body (including any stock
exchange) or any judgment delivered after the date of this
Agreement with retrospective effect, or any increase in the
rates of taxation or imposition of taxation not in effect at
the date of this Agreement;
(iii) a change at or after the Closing in the methods
which have been used by the Acquired Companies in valuing
stock in trade and work in process or any other change in
accounting policy or practice or any change to the length of
any accounting period or to the accounting reference date of
the Acquired Companies;
(iv) the failure or omission by the Acquired
Companies or Century or any affiliate of Century to make any
claim, election, surrender or disclaimer or to give any notice
or consent under the provisions of any enactment or regulation
relating to taxation after Closing;
(v) any claim, election, surrender or disclaimer made
or notice or consent given by the Acquired Companies or
Century or any affiliate of Century under the provisions of
any enactment or regulation relating to taxation after the
Closing;
(vi) the winding up of any Acquired Company or
winding up or cessation after Closing of any trade or business
carried on by the Acquired Companies; and
(vii) any Damages that have been recovered under
Section 9 herein;
provided, however, that the limitations set forth in Clauses
(ii) - (vi) above do not apply to the representations and warranties contained
in Section 4.1(a) hereof.
(b) Insured Losses. The Warranting Shareholders shall have no
liability with respect to any Claim to the extent that the loss in
respect of which the Claim made is insured
15
under a policy of insurance in favor of an Acquired Company or Century
or an affiliate of Century. If a Warranting Shareholder has paid to
Century any amount in respect of a Claim and the Acquired Company or
Century subsequently receives or recovers from a third party (including
an insurer) a sum as compensation for the damages suffered as a direct
result of such Claim, Century shall forthwith repay to the Warranting
Shareholder(s) the amount so received or recovered up to the amount
which has been paid by the Warranting Shareholder(s). Any amount
recovered by Century from a Warranting Shareholder pursuant to a Claim
shall be treated as a reduction in the purchase price received by such
Warranting Shareholder for his TRIAX Shares.
4. Additional Representations of the Shareholders Regarding the TRIAX Shares.
4.1 Representations from the Shareholders other than 3i Group. Each
Shareholder other than 3i Group severally represents and warrants to Century as
follows:
(a) Marketable Title to TRIAX Shares. He has good, valid and
marketable title to the TRIAX Shares set forth next to his name on
Schedule 1.1 attached hereto. Upon consummation of the transactions
incidental to the Closing, Century will acquire from him good and
marketable title to such TRIAX Shares, free and clear of all covenants,
conditions, restrictions, voting trust arrangements, liens, charges,
encumbrances, options and adverse claims or rights whatsoever. No
restrictions are applicable on the transfer of any of the TRIAX Shares
which would prevent such TRIAX Shares from being transferred to Century
by the Shareholders pursuant to this Agreement. Schedule 1.1 attached
hereto sets forth a true and correct description of all TRIAX Shares
owned by him, and such TRIAX Shares represent his entire ownership
interest in TRIAX and will at closing be free of any restriction on
their transfer.
(b) Authority. This Agreement has been duly and validly
executed and delivered by him. He has the full right, power and
authority to enter into this Agreement and to transfer, convey and sell
to Century at the Closing the TRIAX Shares to be sold by him hereunder.
This Agreement and all other agreements and obligations entered into in
connection with the transactions contemplated hereby to which he is a
party, constitute the valid and legally binding obligations of him
enforceable against him in accordance with their respective terms
except insofar as enforceability may be limited by bankruptcy,
insolvency, or similar laws affecting the rights of creditors and
general equitable principles.
(c) Prohibitions on Transfer. He is not a party to, subject to
or bound by any agreement or any judgment, order, writ, prohibition,
injunction or decree of any court or other governmental body which
would prevent the execution or delivery of this Agreement by him or the
transfer, conveyance and sale of the TRIAX Shares to be sold by him to
Century pursuant to the terms hereof.
(d) Required Consents. The sale and delivery of his TRIAX
Shares to Century pursuant to the terms hereof will not require the
notice, consent, approval, order or
16
authorization of or any registration, qualification, designation,
declaration or filing with any third party or governmental authority.
(e) Brokers and Finders. No broker or finder has acted for him
in connection with this agreement or the transactions contemplated
hereby, and no broker or finder (except for ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇) is
entitled to any brokerage or finder's fee or other commissions in
respect of such transactions based upon agreements, arrangements or
understandings made by or on behalf of him.
(f) Investment Purposes Only. Each Warranting Shareholder who
is acquiring Century Shares pursuant to Section 2.1 herein represents
that he is acquiring the Century Shares for his own account and not
with a view to reselling or otherwise distributing such Century Shares
in violation of any federal or state securities laws and understands
and agrees that the Century Shares to be issued hereunder are
restricted on transfer and must be held unless (i) they are registered
under the Securities Act of 1933, as amended (the "Act") or (ii) an
exemption from registration is available, and Century has received an
opinion of counsel, in form and substance satisfactory to it, to such
effect.
(g) Unregistered Securities. The Warranting Shareholders
understand that the Century Shares have not been registered under the
Act, or the securities laws of any state, in reliance upon specific
exemptions from registration thereunder, and agree that such Century
Shares may be neither sold, offered for sale, transferred, pledged,
hypothecated or otherwise disposed of except in compliance with the Act
and applicable state securities laws. The Shareholders understand that
it may not be possible for the Shareholders to liquidate an investment
in the Century Shares on an emergency basis. The Shareholders
acknowledge that a restrictive legend similar to the following shall be
placed on the reverse side of each certificate representing the Century
Shares issued pursuant to this Agreement:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or under any state law and, except pursuant to an
effective registration statement under the Act and other laws,
may not be offered, sold, transferred, or otherwise disposed
of without an opinion of counsel, satisfactory to the Company,
that such disposition may be made without such registration."
4.2 Warranty by 3i Group. 3i Group represents and warrants that it has
good, valid and marketable title to the TRIAX Shares set forth next to its name
on Schedule 1.1 attached hereto. Upon consummation of the transactions
incidental to the Closing, Century will acquire from 3i Group good and
marketable title to such TRIAX Shares, free and clear of all covenants,
conditions, restrictions, voting trust arrangements, liens, charges,
encumbrances, options and adverse claims or rights whatsoever.
17
5. Representations and Warranties of Century and Centennial.
Century and Centennial jointly and severally represent and warrant to
the Warranting Shareholders, upon which representations and warranties the
Warranting Shareholders rely, and which representations and warranties shall
survive the Closing for a period of one year as follows:
5.1 Organization and Related Matters. Century is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full corporate power to enter into this Agreement and to
consummate the transactions contemplated hereby. Schedule 5.1 is a correct and
complete chart showing Century's ownership of any business, joint venture,
partnership or other organization immediately prior to its acquisition of the
TRIAX Shares. Century has made available complete and correct copies of its
Certificate of Incorporation and Bylaws to the Shareholders.
5.2 No Breach of Statute or Contract. Neither the execution, delivery
and performance of this Agreement and the consummation by Century, nor
compliance with the terms and provisions of this Agreement by Century, will
conflict with or result in a breach of any of the terms, conditions or
provisions of the Articles of Association or Bylaws of Century, or any agreement
to which Century is a party or by which it is bound.
5.3 Authorization of Agreement. The execution, delivery and performance
of this Agreement by Century have been duly and validly authorized and approved
by the Board of Directors of Century and no other proceedings on the part of
Century are necessary to authorize the execution, delivery and performance of
this Agreement by Century including the issuance by Century of the Century
Shares and no consent of any government body or other third party is required in
connection therewith. The execution, delivery and performance of this Agreement
constitute valid, legally binding and enforceable obligations of Century in
accordance with the Agreement's terms, subject as to enforceability to general
equitable principles and to bankruptcy, insolvency, reor ganization, moratorium
or similar laws of general application affecting the rights and remedies of
creditors. All the Century Shares issued pursuant to this Agreement will be
validly issued, fully paid and nonassessable, save as a consequence of the
Escrow Agreement.
5.4 No Violation. The execution and delivery of this Agreement and the
consummation by Century of the transactions contemplated by this Agreement and
the performance of its obligations hereunder will not result in any (i) breach
of, or constitute a default under, the Articles of Organization or Bylaws of
Century, or the charter documents of Century, or any instrument, obligation,
contract or agreement to which it is a party or by which it is bound; or (ii)
violate any existing statute, judgment, decree, order or award of any court,
administrative agency or governmental body.
5.5 Capitalization. Schedule 5.5(a) sets forth the total number of
authorized and outstanding shares of capital stock of Century as of the Closing
and immediately prior to the issuance of the Century Shares. Schedule 5.5(b)
sets forth a list of stockholders of Century. Other than as set forth on
Schedule 5.5(a), there are no outstanding options, warrants or other rights to
acquire
18
capital stock of Century. All of the outstanding shares of capital stock of
Century immediately prior to the Closing have been validly issued and are fully
paid and nonassessable.
5.6 Officers. Schedule 5.6 lists all officers and directors of Century
as of the Closing Date.
5.7 Shareholders' Agreements. There are no binding agreements among the
shareholders of Century in effect as of the date of this Agreement relating to
the outstanding shares of capital stock of Century or its subsidiary. A complete
and correct copy of the merger agreement relating to the acquisition of DCI by
an affiliate of Century has been made available to the Shareholders.
5.8 Litigation. Century is not a party to, or the subject of, any
action, suit, litigation, administrative proceeding or governmental or
quasi-governmental investigation material to the transactions contemplated
hereunder, nor, to the best of Century's knowledge, is any such action, suit,
litigation, proceeding or investigation threatened.
5.9 No Prior Business. Century has not traded or carried on any
business other than the acquisition of Design Circuits, Inc. ("DCI") and TRIAX.
Except for the cash portion of the Purchase Price, Century owns no assets and
has no liabilities other than those related to its interest in DCI.
5.10 Proposed Acquisition of Centennial Thailand. Century has entered
into an understanding whereby it will acquire a 51% fully paid interest in
Centennial Technologies (Thailand) Limited for a total of 2,702,703 shares of
its common stock. There are no other binding agreements currently in effect to
sell or purchase any interest in any other business, joint venture, partnership
or other organization.
5.11 No Material Adverse Change. The unaudited balance sheet
information of DCI set forth in Exhibit 5.11 fairly presents the assets and
liabilities of DCI as of that date. There has been no material adverse change in
the business or financial condition of DCI since June 30, 1996.
5.12 SEC Filings. The Form 10-K filed by Centennial with the U.S.
Securities and Exchange Commission for the fiscal year ended June 30, 1996
fairly describes the business of Centennial as of that date and does not contain
any material misstatement of a material fact or fail to state a material fact
necessary to make the statements contained therein not misleading.
5.13 No Actual Knowledge of Breach. Neither Centennial nor Century nor
any of its directors or officers has any actual knowledge of a breach of the
representations and warranties of TRIAX or the Warranting Shareholders under
this Agreement. For purposes of this Section, "actual knowledge" shall mean such
individual is actually aware and cognizant that such a breach exists as of the
Closing.
6. Conditions Precedent to the Obligations of Century.
The obligations of Century to purchase the TRIAX Shares at the Closing
are subject to the
19
fulfillment by TRIAX and the Shareholders (other than 3i Group), or waiver by
Century, of the following conditions at the Closing:
6.1 Opinion of Counsel to TRIAX and the Shareholders; Other Documents.
Century shall have received from ▇▇▇▇▇▇ ▇▇▇▇, counsel to TRIAX and the
Shareholders (other than 3i Group), an opinion dated the Closing Date as to the
matters set forth in Exhibit 6.1 in form and substance satisfactory to Century,
and such other documents as Century may request (a) to evidence the accuracy of
any representations and warranties of the TRIAX and the Shareholders (other than
3i Group), (b) to evidence performance by TRIAX or the Shareholders (other than
3i Group) of or with any covenant or obligation required to be performed or
complied with, (c) to evidence the satisfaction of any condition of this
Agreement, or (d) to otherwise facilitate the consummation or performance of any
of the transactions contemplated herein.
6.2 Opinion of Counsel to Century. TRIAX shall have received an opinion
of counsel in the form of Exhibit 6.2 from ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ relating
to the due organization and capitalization of Century.
6.3 Employment Agreements; Non-Competition Agreements. ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and
delivered to Century employment agreements satisfactory to Century.
6.4 Termination of Certain Agreements. TRIAX shall produce evidence
that each of the agreements listed on Schedule 6.4 attached hereto shall have
been terminated.
6.5 Repayment of Indebtedness. Prior to Closing, TRIAX shall repay any
and all indebtedness to 3i Group which shall be set forth on Schedule 6.5,
including accrued interest and all early repayment compensation of any nature.
6.6 Waivers by Shareholders.
(a) At and subject to the Closing, each of the Shareholders
(other than 3i Group) shall execute and deliver a waiver and release of any and
all claims against TRIAX and the Acquired Companies in the form of Exhibit 6.6,
excluding claims under any obligation pursuant to this Agreement.
(b) By signing this Agreement, each of the Shareholders hereby
fully and irrevocably waives now and forever any and all accrued and unfulfilled
rights and any and all future right pursuant to Sections 8 through 11 of the
Revised Articles of Association of TRIAX.
7. Disclosure Letter. A disclosure letter (the "Disclosure Letter")
will be delivered from Triax and the Warranting Shareholders to Century
concurrently with the execution of this Agreement. In the event of any
inconsistency between the statements in the body of this Agreement and those in
the Disclosure Letter, the statements in the body of the Disclosure Letter will
control.
20
8. Covenants of TRIAX and the Warranting Shareholders.
8.1 Lock-Up Letters. In the event Century conducts an initial public
offering of its securities, each Holder (as defined in Section 11(a)) shall
agree to any "Lock-Up Agreement" that the other holders of shares of Century who
are required to sign Lock-Up Agreements execute in connection with such
offering, provided, however, that no Holder shall be required to sign a LockUp
Agreement more restrictive that the Lock-Up Agreement signed by any other holder
of shares of common stock of Century, including Centennial but excluding the
other shareholders of Century immediately prior to the Closing as shown in
Schedule 5.5(b). In addition, if Centennial shall not be required to sign a
Lock-Up Agreement, no Holders shall be required to sign a Lock-Up Agreement.
8.2 Non-Disclosure of Information. The Shareholders other than 3i Group
shall not divulge to any person or use for any purpose, except as required in
the course of their employment with the Acquired Companies, Century or any
affiliated company any of the trade secrets or confidential information or any
confidential financial or trading information relating to Century, the
affiliates of Century or the Acquired Companies. This restriction shall continue
to apply after the Closing.
8.3 Non-Solicitation. For a period of 24 months following the Closing,
the Shareholders other than 3i Group shall not without the previous written
consent of Century in connection with the carrying on of any business in which
the Shareholder (other than 3i Group) was engaged during his employment with any
Acquired Company or any subsidiary on his own behalf or on behalf of any person,
firm or company (other than Century or any of its affiliates or the Acquired
Companies), directly or indirectly:
(a) seek to procure orders from or do business with any firm
or company who has within the 12 months preceding the Closing been a customer of
an Acquired Company;
(b) solicit or endeavour to entice away from Century, the
Acquired Companies, any subsidiary or any person who or which was a customer,
client or employee of an Acquired Company within the 12 months preceding the
Closing; or
(c) prevent or seek to prevent any person who is or was a
supplier to an Acquired Company or any subsidiary from supplying goods or
services to an Acquired Company or subsidiary.
8.4 Non-Competition. The Warranting Shareholders hereby covenant that
they will not in the U.K. and within one year after ceasing to be beneficially
interested in any Century Shares without such consent as is specified in the
immediately preceding clause hereof either alone or jointly with or as manager
or agent for any person, firm or company directly or indirectly carry on or be
engaged in any business competitive with that business of an Acquired Company or
of any subsidiary.
21
9. Indemnification.
9.1 Subjects Indemnified Against by the Warranting Shareholders. The
Warranting Shareholders, severally and not jointly, agree to defend, indemnify
and hold harmless Century from and against or as the case may be, pay to Century
an amount equal to, any and all damages, losses and expenses suffered by Century
and/or each of the Acquired Companies ("Damages"), resulting from (i) any breach
of warranty or agreement or non-fulfillment of any obligation on the part of
TRIAX or the Warranting Shareholders under Sections 3.7 (including those under
Schedule 3.7(c)) and 4.1(a) of this Agreement (the "Indemnified Sections")
(subject, for clarity, to the limitations under Section 3.29), (ii) any
misrepresentation in the Indemnified Sections or in any document in the
Disclosure Letter to the extent relating to an Indemnified Section or the
failure to state any fact necessary to be stated in order to make the statements
made in the Indemnified Sections or the Disclosure Letter not misleading, and
(iii) all demands, assessments, judgments, settlements, reasonable costs (other
than the internal cost relating to the diversion of management time) and legal
and other expenses arising from or in connection with any action, suit,
proceeding or claim by any third party resulting in damage or loss to any of the
Acquired Companies or to Century or any officer or director of Century (in the
absence of misfeasance relating to the breach of warranty or agreement,
non-fulfillment of obligation or misrepresentation covered by this Section), as
a consequence of any such misrepresentation, breach of warranty or
nonfulfillment of obligation in relation to an Indemnified Section. The
Warranting Shareholders, severally and not jointly, also agree to defend,
indemnify and hold harmless Century from and against or as the case may be, pay
to Century an amount equal to, any amounts the Acquired Companies are required
to pay for VAT taxes, and any related penalties and interest, as described in
the third paragraph of the Disclosure Letter under Specific Disclosures to
Schedule 3.7(c), paragraph 14.
9.2 Conditions to Indemnification. The obligations and liabilities of
the Warranting Shareholders hereunder with respect to the indemnities pursuant
to this Section 9, resulting from any claim or other assertion of liability by
third parties, shall be subject to the following terms and conditions:
(a) The party seeking indemnification (the "Indemnified
Party") or TRIAX must give the other party or parties, as the case may be (the
"Indemnifying Party"), notice in writing as soon as practicable or, in any
event, within fourteen (14) days of (i) any claim or potential claim, (ii) the
commencement of any action or proceeding, or (iii) the occurrence of any other
event giving rise or reasonably likely to give rise to indemnification rights
under this Section 9, and, in each case, the basis therefor, provided, however,
that failure to give such notice within such fourteen (14) day period shall not
affect the liability of the Indemnifying Party under this Agreement unless the
failure to give such notice within such time period materially adversely affects
the Indemnified Party's ability to defend itself against the claim giving rise
to Indemnified Party's claim for indemnification or to cure the default giving
rise to such claim. The Indemnified Party shall procure that the party against
which the claim is asserted or action or proceeding is commenced shall (subject
to Century being indemnified against all reasonable third party costs and legal
and other expenses which are reasonably incurred by such party) take such action
as the Indemnifying Party may reasonably request to defend, avoid, dispute,
resist, appeal, compromise or settle such claim, action or
22
proceeding. In making any such request, the Warranting Shareholders shall at all
times act jointly and Century may in that regard act upon the instructions in
writing of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(b) If the Indemnifying Party fails to request Century to
procure the relevant party to defend such claim, action or proceeding within a
reasonable time after notice of a claim hereunder, the Indemnified Party shall
be entitled to undertake the defense, compromise or settlement of such claim,
action or proceeding at the reasonable expense of and (to the extent provided by
this Section 9) for the account and risk of the Indemnifying Party subject to
the right of the Indemnifying Party to cooperate in the defense of such claim,
action or proceeding at any time prior to the settlement, compromise or final
determination thereof.
9.3 Payment for Indemnification. The Indemnifying Party shall pay to
the Indemnified Party any amount due under this Section 9 three business days
before the underlying liability in question becomes due and payable to a third
party or, if later, within fifteen (15) days after the establishment thereof in
cleared funds. Any amount not paid when due under this Section 9 shall bear
interest from the date the same became due and payable thereof until the date
paid at the rate of four percent (4%) above the base rate from time to time of
the Royal Bank of Scotland.
9.4 Survival of Indemnification. The right to indemnification pursuant
to this Section 9 shall survive for a period of six (6) years following the
Closing with respect to indemnifications for damages resulting from a breach or
breaches under Section 3.7 (including those described in Schedule 3.7(c) and for
a period of one (1) year following closing for indemnifications for Damages
resulting from a breach or breaches under Section 4.1(a). The liability of TRIAX
or the Shareholders will not be affected by any investigation conducted with
respect to, or any knowledge acquired (or capable of being acquired) at any
time, whether before or after the execution and delivery of this Agreement or
the Closing Date.
9.5 Intent of Parties. The parties hereto intend for the
indemnification provisions of this Section 9 to be construed as a full
indemnification in accordance with its terms, notwithstanding the use of any
"substantial" or "material" standard contained elsewhere in this Agreement. Any
remedies of Century shall be cumulative and not exclusive. Specifically, but not
by way of limitation, the parties make no attempt to limit any claims based on
common law fraud or other similar remedies.
10. Limitation of Liabilities.
10.1 Basket. The Warranting Shareholders and ▇▇. ▇▇▇ shall have no
liability with respect to the matters described in Sections 3 (other than 3.23),
4 (other than 4.1(a)) or Section 9.1, and Century and Centennial shall have no
liability with respect to the matters described in Section 5, until the total of
all Damages with respect to such matters equals or exceeds $100,000 and then for
the aggregate amount of amount of such Damages. However, this Section 10.1 shall
not apply to any breach of the representations and warranties of which any of
the Shareholders or Century had actual knowledge (as such term is defined in
Section 5.13) of at any time prior to the Closing, or any intentional breach by
any of the Warranting Shareholders or Century of any covenant or obligation
under this Agreement. In addition, this Section 10.1 shall not apply to any
amounts the Acquired Companies are required to pay for VAT taxes, and any
related penalties and interest, as described
23
in the third paragraph of the Disclosure Letter under Specific Disclosures to
Schedule 3.7(c), paragraph 14.
10.2 Limitation to Amounts. The liability under the terms of this
Agreement of each Warranting Shareholder and, with respect to Section 4, ▇▇. ▇▇▇
and 3i Group, shall be no greater than the amount of consideration he receives
for the TRIAX Shares under this Agreement. For purposes of this Section 10.2,
the value of the Century Shares shall be $2.00 per share. In the event a
Warranting Shareholder is responsible for a claim made by Century in accordance
with the terms of this Agreement, such Warranting Shareholder may, after payment
of the cash portion of the Purchase Price received by him, tender the Century
Shares received by him pursuant to this Agreement and valued as set forth in
this Section 10.2 in lieu of a further cash payment.
10.3 Pro Rata Liability. In the event of a claim for Damages made by
Century under Sections 3, 4 (exclusive of 4.1(a)) and 9 (exclusive of Damages
arising out of a breach of Section 4.1(a)) of this Agreement), Century shall
only be entitled to collect from each Warranting Shareholder a pro rata amount
of the Damages resulting from such claim measured by dividing the Purchase Price
received by that Warranting Shareholder by the total Purchase Price received by
all of the Warranting Shareholders (and valuing the Century Shares at $2.00 per
share) and multiplying the result by the amount of the Damages.
10.4 Limitations of Century and Centennial Liabilities. The aggregate
liability of Century and Centennial to each of the Warranting Shareholders under
the terms of this Agreement shall be no greater than the amount of the Purchase
Price received by such Warranting Shareholder, valuing the Century Shares at
$2.00 per share.
11. Incidental Registration Rights.
(a) If at any time following a firm commitment initial public
offering of Century's securities, Century shall determine to file a
Registration Statement in connection with the sales of its securities
by any holder of such securities (other than by the shareholders of
Century, except Centennial, determined immediately prior to the
Closing, as shown in Schedule 5.5(b) (the "Investors"), whether or not
such Registration Statement will include newly-issued securities of
Century, Century will give written notice of its determination to all
the Warranting Shareholders that hold Century Shares (the "Holders").
Upon the receipt by Century of a written request of a Holder given
within twenty (20) days after the giving of any such notice by Century,
Century will use its best efforts to cause all such Century Shares, the
Holders of which have so requested registration thereof, to be included
in such Registration Statement, subject to the limitations set forth
below. The Holders shall agree to any Lock-Up Agreement that other
holders of shares of Common Stock of Century agree to in connection
with the offering; provided that no Holder shall be required to sign a
Lock-Up Agreement more restrictive than the Lock-Up Agreement required
to be signed by any other holder of shares of Century. If Centennial is
not required to sign a Lock-Up Agreement, no Holder shall be required
to do so. If the Registration Statement is to cover a distribution that
is underwritten, the Company shall use its best efforts to cause the
Century Shares requested for inclusion pursuant to this Section 11 to
be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. If, in the
24
good faith judgment of the managing underwriter of such public
offering, the inclusion of all or some of the Century Shares requested
for inclusion pursuant to this Section 11 and any other securities to
be registered pursuant to such Registration Statement would interfere
with the successful marketing of the shares to be offered, then the
number of Century Shares and other securities to be included in the
offering shall be reduced to the extent required by the managing
underwriter; provided that any such reduction shall be applied pro-rata
among all selling security-holders (including but not limited to the
Holders), based upon the number of shares of Century Shares and other
securities owned by such selling security-holders and sought to be
registered pursuant to such Registration Statement.
(b) Century shall pay all costs, fees and expenses in
connection with all Registration Statements filed pursuant to this
Agreement, including Century's legal and accounting fees, printing
expenses, reasonable blue sky fees and expenses, but excluding fees and
expenses of Holder(s)' counsel and any underwriting or selling
commissions.
(c) Century's obligation under this Agreement shall be
conditioned upon a timely receipt by Century in writing of information
as it may reasonably require from each of the Holders, or any
underwriter for any of them, in connection with the preparation of a
Registration Statement filed pursuant to this Agreement, including any
post-effective amendment to such Registration Statement, and the sale
of the Shares by the Holders, it being understood that such information
shall relate to such Holder and such Holder's ownership of Century
Shares and not to any other information relating to Century or
customarily provided by the issuer in connection with such offering.
(d) Century will indemnify each Holder of Century Shares
included in the registration statement to the extent customarily
provided in offerings registered under the Securities Act of 1933.
However, such indemnification shall not extend to any information
provided in writing by any such Holder relating to his ownership of
Century Shares.
12. General.
12.1 Survival of Representations, Warranties and Covenants; Cumulative
Remedies. Except as set forth below, the representations and warranties of the
Shareholders and TRIAX contained herein or in any Schedule or certificate
delivered hereunder shall survive the Closing Date for a period of one (1) year
and shall remain in full force and effect during such period and shall be
unaffected by any investigation made by Century hereunder. All covenants and
agreements contained herein which are to be performed or fulfilled after the
Closing Date shall survive and remain in full force and effect. Century agrees
to promptly notify the Warranting Shareholders upon Century's knowledge of a
claim, although the failure to provide such notification shall not affect the
liability of the Warranting Shareholders under this Agreement. The remedies
provided under this Agreement for the benefit of Century shall be cumulative
such that no single remedy shall be exclusive. The Warranting Shareholders shall
have no liability with respect to any contingent liability, provided, however,
that if Century informs the Warranting Shareholders of a contingent liability
within 10 days following the one year anniversary of this Agreement, the
liability of the Warranting Shareholders shall continue until the contingency is
resolved.
25
12.2 Press Releases. Unless approved in advance by Century, the
Acquired Companies and the Shareholders shall not issue any press release or
written statement for general circulation relating to the transactions
contemplated hereby, except as required by law or by any regulatory authority to
which that party is subject. Century will not issue any press release that
mentions 3i Group without its prior consent.
12.3 Payment of Expenses. Whether or not the transactions contemplated
hereby are consummated, Century shall pay its own expenses, and each of the
Shareholders shall pay his/its own expenses and the Shareholders shall pay
TRIAX's expenses, in connection with the negotiation, authorization,
preparation, execution and performance of this Agreement, including, without
limitation, all fees and expenses of investment banking firms, agents,
representatives, legal and other counsel and accountants.
12.4 Governing Law. It is the intent of the parties that this Agreement
shall be governed exclusively in all respects, whether as to validity,
construction, capacity, performance or otherwise, by the internal laws of the
Commonwealth of Massachusetts of the United States of America, excluding any
conflict of laws rules, and in which it has a situs, and not by the laws of any
other place. Except as set forth below, TRIAX and each of the Shareholders
agrees and consents to the exclusive jurisdiction of the courts of the
Commonwealth of Massachusetts, and any federal court located therein, and in no
other place, and to the appropriateness of the venue of such courts, in
connection with any dispute which may arise pursuant to this Agreement or which
is related to the transactions contemplated hereby. If any provision of this
Agreement shall be held invalid by a court with jurisdiction over the parties to
this Agreement, then and in that event such provision shall be deleted from the
Agreement, which shall then be construed to give effect to the remaining
provisions thereof. In the course of any litigation or arbitration regarding
this Agreement, the Agreement shall be continuously executed except for the part
which is under, or which is directly or substantially affected by, the
litigation or arbitration. TRIAX and each of the Shareholders agrees that awards
entered in a United States court shall be enforceable in any foreign court
without further action on the part of Century. Notwithstanding the foregoing,
TRIAX and each of the Shareholders agree that only Century shall also be
entitled to take proceedings in connection with this Agreement in the courts of
England and Wales or in the courts of any other country in which the
Shareholders or any of them have assets.
12.5 Notices. Any payments, notices or other communications required or
permitted hereunder shall be given in writing and deemed to have been properly
given if and when delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
if to Century: Century Industries, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇'▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
26
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to TRIAX: TRIAX Technology Group, Ltd.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇. ▇▇▇▇▇▇ Road
▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇' ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
and if to a
Shareholder or
Shareholders: To each shareholder's address as
shown on Schedule I
with a copy to: ▇▇▇▇ ▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇'▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
or such other address as shall be furnished in writing by any party, and any
such payment, notice or communication shall be deemed to have been made or given
three business days after the date so mailed (except that a notice of change of
address shall not be deemed to have been given until received by the addressee)
or on the date of actual receipt, whichever first occurs.
12.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors,
assigns, heirs, executors, administrators and legal representatives, provided,
however, that no party to this Agreement shall assign any of the Shareholders'
rights or delegate any of its obligations hereunder to any party without the
prior written consent of the other parties, except that Century may assign the
Agreement to Centennial or to a majority owned subsidiary of Centennial or
Century or to a purchaser of all or substantially all of its assets or business.
12.7 Headings; Construction. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement. All words used in this Agreement will
be construed to be of such gender or number as the circumstances require.
References to statutory provisions shall be construed as references to those
provisions as amended or reenacted or as their application is modified by other
provisions from time to time and shall include references to any provisions of
which they are reenactments (whether with or without modification). Amendments
or modifications to statutory provisions that become effective following the
Closing Date shall not be applicable to the extent their effect is to increase
27
the liability or obligation of a party unless such amendment or modification had
been approved by the applicable government body prior to the Closing.
12.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall be considered one and the same
agreement.
12.9 Waiver. The failure of any party to this Agreement at any time or
times to require performance of any provision hereof shall in no manner affect
such party's right at a later time to enforce the same. No waiver by any party
of any condition, or of the breach of any term, covenant, representation or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or the breach of any other term, covenant, representation or warranty
of this Agreement.
12.10 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the transactions contemplated herein,
and supersedes all prior agreements and understandings, whether written or oral,
among the parties hereto with respect to the subject matter of this Agreement.
12.11 Additional Actions. Century, TRIAX and the Shareholders (other
than 3i Group) agree to execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as may be necessary
or desirable in order to consummate or implement expeditiously the transactions
contemplated by this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
28
IN WITNESS WHEREOF, this Agreement has been signed by a duly authorized
officer of Centennial, Century and TRIAX, and each of the Shareholders as of the
day and year first above written.
SHAREHOLDERS TRIAX TECHNOLOGY GROUP, LTD.
3i Group plc
By:________________________________
_________________________
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Authorized Signatory
CENTURY INDUSTRIES, INC.
_________________________
▇.▇. ▇▇▇
By:________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
_________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________ CENTENNIAL TECHNOLOGIES, INC.
▇▇▇ ▇▇▇▇▇▇
_________________________ By:________________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Chief Executive Officer
_________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇
29