SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (hereinafter referred to as this "Agreement")
is entered into as of this 6th day of June, 1997, by and between OPAL
TECHNOLOGIES, INC., a Nevada corporation (hereinafter referred to as
"OPAL"),TRIPLE STAR HOLDINGS LIMITED (hereinafter referred to as "TRIPLE"), a
BVI corporation, OPAL AGRICULTURE DEVELOPMENT LIMITED(hereinafter "OAD"), a BVI
corporation and BESTALONG GROUP, INC. (hereinafter "SHAREHOLDER"), a BVI
corporation upon the following premises:
Premises
WHEREAS, OPAL is a publicly held corporation organized under the laws of
the State of Nevada and is seeking the acquisition of an operating business;
WHEREAS, TRIPLE and OAD are operating businesses engaged in the investment,
development production and marketing for the industry of agricultural
fertilizers;
WHEREAS, the SHAREHOLDER is seeking a publicly held vehicle for the
ownership of TRIPLE and OAD to enhance its ability to raise capital for these
entities;
WHEREAS, pursuant to negotiations between management of the constituent
companies; the SHAREHOLDER desires to transfer its share ownership of TRIPLE and
OAD to OPAL in exchange for 1) $2,100,000 in cash, 2) 100,000 shares of Series A
preferred stock, $.001 par value of OPAL and, 3) 8,452,768 shares of common
stock, $.001 par value of OPAL.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF TRIPLE, OAD AND THE SHAREHOLDER
As an inducement to, and to obtain the reliance of OPAL, except as set
forth on the TRIPLE and OAD Schedules (as hereinafter defined) and except for
information which is confidential or would constitute a trade secret, TRIPLE,
OAD and the SHAREHOLDER represent and warrant as follows:
Section 1.01 Organization. (a) TRIPLE is a corporation duly organized,
validly existing, and in good standing under the laws of the BVI and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the TRIPLE
Schedules are complete and correct copies of the organizational documents of
TRIPLE and each of its subsidiaries as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of TRIPLE's
Memorandum and Articles of Association or other organizational documents. TRIPLE
has taken all actions required by law, its organization documents, or otherwise
to authorize the execution and delivery of this Agreement. TRIPLE has full
power, authority, and legal right and has taken all action required by law, its
Articles of Incorporation, and otherwise to consummate the transactions herein
contemplated.
(b) OAD is a corporation duly organized, validly existing, and in good
standing under the laws of BVI and has the corporate power and is duly
authorized, qualified, franchised, and licensed under all apf public authorities
to own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the OAD
Schedules are complete and correct copies of the organizational documents of OAD
and each of its subsidiaries as in effect on the date hereof. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of OAD's Memorandum and
Articles of Association or other organizational documents. OAD has taken all
actions required by law, its organization documents, or otherwise to authorize
the execution and delivery of this Agreement. OAD has full power, authority, and
legal right and has taken all action required by law, its Articles of
Incorporation, and otherwise to consummate the transactions herein contemplated.
Section 1.02 Capitalization. a) The authorized capitalization of TRIPLE
consists of 50,000 shares of common stock, $1.00 par value, of which one share
is currently issued and outstanding. All issued and outstanding shares are
legally issued, fully paid, and non-assessable and not issued in violation of
the preemptive or other rights of any person.
(b) The authorized capitalization of OAD consists of 50,000 shares of
common stock, $1.00 par value, of which 50,000 shares are currently issued and
outstanding. All issued and outstanding shares are legally issued, fully paid,
and non-assessable and not issued in violation of the preemptive or other rights
of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. a) TRIPLE does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in the TRIPLE Schedules.
(b) OAD does not have any predecessor corporation(s) or subsidiaries, and
does not own, beneficially or of record, any shares of any other corporation,
except as disclosed in the OAD Schedules.
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Section 1.04 Financial Statements. a) TRIPLE's Statements
(1) Included in the TRIPLE Schedules are the audited balance sheets of
TRIPLE as of December 31, 1996 and December 31, 1995, and the related
audited statements of operations, stockholders' equity and cash flows for
the two fiscal years ended December 31, 1996 and December 31, 1995,
together with the notes to such statements and the opinion of Xxxxxx
Xxxxxxxx & Co. independent certified public accountants, with respect
thereto.
(2) The audited financial statements have been prepared in accordance
with generally accepted accounting principles. The TRIPLE audited balance
sheets present a true and fair view as of the dates of such balance sheets
of the financial condition of TRIPLE. The assets and liabilities reflected
therein are properly reported and present fairly the financial condition of
the assets and liabilities of TRIPLE in accordance with generally accepted
accounting principles.
(3) To the best of TRIPLE's knowledge, TRIPLE has accrued all
liabilities with respect to the payment of any federal, state, county,
local or other taxes (including any deficiencies, interest or penalties),
except for taxes accrued but not yet known to be due and payable.
(4) To the best of TRIPLE's knowledge, TRIPLE has filed all state,
federal or local income and/or franchise tax returns required to be filed
by it from inception to the date hereof. Each of such income tax returns
reflects the taxes due for the period covered thereby, except for amounts
which, in the aggregate, are immaterial.
(5) The books and records, financial and accounting documents, of
TRIPLE are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(6) TRIPLE's assets and liabilities are reflected on its financial
statements are complete and properly record all of its material assets and
liabilities except as set forth in the TRIPLE Schedules the financial
statements of TRIPLE or the notes thereto.
(b) OAD's Statements
(1) Included in the OAD Schedules are the audited balance sheets of
OAD as of December 31, 1996 and December 31, 1995, and the related audited
statements of operations, stockholders' equity and cash flows for the two
fiscal years ended December 31, 1996 and December 31, 1995, together with
the notes to such statements and the opinion of Xxxxxx Xxxxxxxx & Co.,
independent certified public accountants, with respect thereto.
(2) The audited financial statements have been prepared in accordance
with generally accepted accounting principles. The OAD audited balance
sheets present a true and fair view as of the dates of such balance sheets
of the financial condition of OAD.
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The assets and liabilities reflected therein are properly reported and
present fairly the financial condition of the assets and liabilities of OAD
in accordance with generally accepted accounting principles.
(3) To the best of OAD's knowledge, OAD has accrued all liabilities
with respect to the payment of any federal, state, county, local or other
taxes (including any deficiencies, interest or penalties), except for taxes
accrued but not yet known to be due and payable.
(4) To the best of OAD's knowledge, OAD has filed all state, federal
or local income and/or franchise tax returns required to be filed by it
from inception to the date hereof. Each of such income tax returns reflects
the taxes due for the period covered thereby, except for amounts which, in
the aggregate, are immaterial.
(5) The books and records, financial and accounting documents of OAD
are in all material respects complete and correct and have been maintained
in accordance with good business and accounting practices.
(6) OAD's assets and liabilities as reflected on its financial
statements are complete and properly record all of its material assets and
liabilities except as set forth in the OAD Schedules, the financial
statements of OAD or the notes thereto.
Section 1.05 Information. ((a) The information concerning TRIPLE set forth
in this Agreement and in the TRIPLE Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
TRIPLE has fully disclosed in writing to OPAL (through this Agreement or the
TRIPLE Schedules) all information relating to matters involving TRIPLE or its
assets or its present or past operations or activities which (i) have led or may
lead to a competitive disadvantage on the part of TRIPLE or (ii) either alone or
in aggregation with other information covered by this Section, otherwise have
led or may lead to a material adverse effect on the transactions contemplated
herein or on TRIPLE, its assets, or its operations or activities as presently
conducted or as contemplated to be conducted after the Closing Date, including,
but not limited to, information relating to governmental, employee,
environmental, litigation and securities matters and transactions with
affiliates.
(b) The information concerning OAD set forth in this Agreement and in the
OAD Schedules is complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading. In addition, OAD has fully d) all information
relating to matters involving OAD or its assets or its present or past
operations or activities which (i) have led or may lead to a competitive
disadvantage on the part ormation covered by this Section, otherwise have led or
may lead to a material adverse effect on the transactions contemplated herein or
on OAD its assets, or its operations or activities as presently conducted or as
contemplated to be conducted after the Closing Date, including, but not limited
to, information relating to governmental, employee, environmental, litigation
and securities matters and transactions with affiliates.
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Section 1.06 Options or Warrants. (a) Except as set forth in the TRIPLE
Schedules, there are no existing options, warrants, calls, or commitments of any
character relating to the authorized and unissued TRIPLE common stock, except
options, warrants, calls or commitments, if any, to which TRIPLE is not a party
and by which it is not bound.
(b) Except as set forth in the OAD Schedules, there are no existing
options, warrants, calls, or commitments of any character relating to the
authorized and unissued OAD common stock, except options, warrants, calls or
commitments, if any, to which OAD is not a party and by which it is not bound.
Section 1.07 Absence of Certain Changes or Events. (a) Except as set forth
in this Agreement or the TRIPLE Schedules, since December 31, 1996:
(1) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of TRIPLE or (ii)
any damage, destruction, or loss to TRIPLE (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of TRIPLE;
(2) TRIPLE has not (i) amended its Memorandum and Articles of
Association; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind whatsoever
to stockholders or purchased or redeemed, or agreed to purchase or redeem,
any of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of TRIPLE; (iv) made any material change in its
method of management, operation or accounting; (v) entered into any other
material transaction other than in the ordinary course of its business;
(vi) made any accrual or arrangement for payment of bonuses or special
compensation of any kind or any severance or termination pay to any present
or former officer or employee; (vii) made any material increase in any
profit sharing, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement made to, for, or with its officers,
directors, or employees;
(3) Other than in the ordinary course of business, TRIPLE has not (i)
borrowed or agreed to borrow any funds or incurred, or become subject to,
any material obligation or liability (absolute or contingent) except as
disclosed herein and except liabilities incurred in the ordinary course of
business or inter-company loans; (ii) paid or agreed to pay any material
obligations or liability (absolute or contingent) other than liabilities
reflected in or shown on the most recent TRIPLE balance sheet, and
liabilities incurred since that date in the ordinary course of business and
professional and other fees and expenses in connection with the preparation
of this Agreement and the consummation of the transactions contemplated
hereby; (iii) sold or transferred, or agreed to sell or transfer, any of
its assets, properties, or rights (except assets, properties, or rights not
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used or useful in its business which, in the aggregate have a value of less
than $1,000), or canceled, or agreed to cancel, any debts or claims (except
debts or claims which in the aggregate are of a value of less than $1,000);
(iv) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or
termination is material, considering the business of TRIPLE; or (v) issued,
delivered, or agreed to issue or deliver any stock, bonds or other
corporate securities including debentures (whether authorized and unissued
or held as treasury stock); and
(4) to the best knowledge of TRIPLE, TRIPLE has not become subject to
any law or regulation which materially and adversely affects the business,
operations, properties, assets, or condition of TRIPLE.
(b) Except as set forth in this Agreement or the OAD Schedules, since
December 31, 1996:
(1) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of OAD or (ii) any
damage, destruction, or loss to OAD (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties,
assets, or condition of OAD;
(2) OAD has not (i) amended its Memorandum and Articles of
Association; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind whatsoever
to stockholders or purchased or redeemed, or agreed to purchase or redeem,
any of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of OAD (iv) made any material change in its method
of management, operation or accounting; (v) entered into any other material
transaction other than in the ordinary course of its business; (vi) made
any accrual or arrangement for payment of bonuses or special compensation
of any kind or any severance or termination pay to any present or former
officer or employee; (vii) made any material increase in any profit
sharing, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors, or
employees;
(3) Other than in the ordinary course of business, OAD has not (i)
borrowed or agreed to borrow any funds or incurred, or become subject to,
any material obligation or liability (absolute or contingent) except as
disclosed herein and except liabilities incurred in the ordinary course of
business or inter-company loans; (ii) paid or agreed to pay any material
obligations or liability (absolute or contingent) other than liabilities
reflected in or shown on the most recent OAD balance sheet, and liabilities
incurred since that date in the ordinary course of business and
professional and other fees and expenses in connection with the preparation
of this Agreement and the consummation of the transactions contemplated
hereby; (iii) sold or transferred, or agreed to sell or transfer, any of
its assets, properties, or rights (except assets, properties, or rights not
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used or useful in its business which, in the aggregate have a value of less
than $1,000), or canceled, or agreed to cancel, any debts or claims (except
debts or claims which in the aggregate are of a value of less than $1,000);
(iv) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or
termination is material, considering the business of OAD or (v) issued,
delivered, or agreed to issue or deliver any stock, bonds or other
corporate securities including debentures (whether authorized and unissued
or held as treasury stock); and
(4) to the best knowledge of OAD, OAD has not become subject to any
law or regulation which materially and adversely affects the business,
operations, properties, assets, or condition of OAD.
Section 1.08 Title and Related Matters. (a) TRIPLE has good title to all of
its properties, inventory, interests in properties, and assets, real and
personal, which are reflected in the most recent TRIPLE audited balance sheet or
acquired after that date (except properties, inventory, interests in properties,
and assets sold or otherwise disposed of since such date in the ordinary course
of business) free and clear of all liens, pledges, charges, or encumbrances
except (a) statutory liens or claims not yet delinquent; (b) such imperfections
of title and easements as do not and will not materially detract from or
interfere with the present or proposed use of the properties subject thereto or
affected thereby or otherwise materially impair present business operations on
such properties; and (c) as described in the TRIPLE Schedules. Except as set
forth in the TRIPLE Schedules, TRIPLE owns, free and clear of any liens, claims,
encumbrances, royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all products it is currently manufacturing, including
the underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information utilized in
connection with TRIPLE's business. Except as set forth in the TRIPLE Schedules,
no third party has any right to, and TRIPLE has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of TRIPLE or any material portion of
its properties, assets, or rights.
(b) OAD has good title to all of its properties, inventory, interests in
properties, and assets, real and personal, which are reflected in the most
recent OAD audited balance sheet or acquired after that date (except properties,
inventory, interests in properties, and assets sold or otherwise disposed of
since such date in the ordinary course of business) free and clear of all liens,
pledges, charges, or encumbrances except (a) statutory liens or claims not yet
delinquent; ((b) such imperfections of title and easements as do not and will
not materially detract from or interfere with the present or proposed use of the
properties subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; and (c) as described in the OAD
Schedules. Except as set forth in the OAD Schedules, OAD interests, or other
restrictions or limitations of any nature whatsoever, any and all products it is
currently manufacturing, including the underlying technology and data, and all
procedures, techniques, marketing plans, business plans, methods of management,
or other information utilized in connection with OAD's business. Except as set
forth in the OAD Schedules, no third party has any right to, and OAD has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
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propriety techniques, trademarks, service marks, trade names, or copyrights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse effect on the
business, operations, financial condition, income, or business prospects of OAD
or any material portion of its properties, assets, or rights.
Section 1.09 Litigation and Proceedings. (a) Except as set forth in the
TRIPLE Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of TRIPLE after reasonable investigation,
threatened by or against TRIPLE or affecting TRIPLE or its properties, at law or
in equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. TRIPLE does not have
any knowledge of any material default on its part with respect to any judgment,
order, injunction, decree, award, rule, or regulation of any court, arbitrator,
or governmental agency or instrumentality or of any circumstances which, after
reasonable investigation would result in the discovery of such a default.
(b) Except as set forth in the OAD Schedules, there are no actions, suits,
proceedings, or investigations pending or, to the knowledge of OAD after
reasonable investigation, threatened by or against OAD or affecting OAD or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind.
OAD does not have any knowledge of any material default on its part with respect
to any judgment, order, injunction, decree, award, rule, or regulation of any
court, arbitrator, or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation would result in the
discovery of such a default.
Section 1.10 Contracts.
(a) TRIPLE Contracts
(1) Except as included or described in the TRIPLE Schedules, there are
no "material" contracts, agreements, franchises, license agreements, debt
instruments or other commitments to which TRIPLE is a party or by which it
or any of its assets, products, technology, or properties are bound other
than those incurred in the ordinary course of business (as used in this
Agreement, a "material" contract, agreement, franchise, license agreement,
debt instrument or commitment is one which (i) will remain in effect for
more than six (6) months after the date of this Agreement or (ii) involves
aggregate obligations of at least ten thousand dollars ($10,000));
(2) The contracts, agreements, franchises, license agreements, and
other commitments to which TRIPLE is a party or by which its properties are
bound and which are material to the operations of TRIPLE taken as a whole
are valid and enforceable by TRIPLE in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(3) TRIPLE is not a party to or bound by, and the properties of TRIPLE
are not subject to any contract, agreement, other commitment or instrument;
any charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects, the
8
business operations, properties, assets, or condition of TRIPLE; and (4)
Except as included or described in the TRIPLE Schedules or reflected in the
most recent TRIPLE balance sheet, or other than in the ordinary course of
business, TRIPLE is not a party to any written (i) contract for the
employment of any officer or employee which is not terminable on 90 days,
or less notice; (ii) profit sharing, stock option, severance pay, pension
benefit or retirement plan, (iii) agreement, contract, or indenture
relating to the borrowing of money, (iv) guaranty of any obligation, other
than one on which TRIPLE is a primary obligor or incurred in the normal
course of business, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations which,
in the aggregate do not exceed more than one year or providing for payments
in excess of $10,000 in the aggregate; (v) collective bargaining agreement;
or (vi) agreement with any present or former officer or director of TRIPLE.
(b) OAD Contracts
(1) Except as included or described in the OAD Schedules, there are no
"material" contracts, agreements, franchises, license agreements, debt
instruments or other commitments to which OAD is a party or by which it or
any of its assets, products, technology, or properties are bound other than
those incurred in the ordinary course of business (as used in this
Agreement, a "material" contract, agreement, franchise, license agreement,
debt instrument or commitment is one which (i) will remain in effect for
more than six (6) months after the date of this Agreement or (ii) involves
aggregate obligations of at least ten thousand dollars ($10,000));
(2) The contracts, agreements, franchises, license agreements, and
other commitments to which OAD is a party or by which its properties are
bound and which are material to the operations of OAD taken as a whole are
valid and enforceable by OAD in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(3) OAD is not a party to or bound by, and the properties of OAD are
not subject to any contract, agreement, other commitment or instrument; any
charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects, the
business operations, properties, assets, or condition of OAD; and
(4) Except as included or described in the OAD Schedules or reflected
in the most recent OAD balance sheet, or other than in the ordinary course
of business, OAD is not a party to any written (i) contract for the
employment of any officer or employee which is not terminable on 90 days,
or less notice; (ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv) guaranty of
any obligation, other than one on which OAD is a primary obligor or
incurred in the normal course of business, for the borrowing of money or
otherwise, excluding endorsements made for collection and other guaranties
of obligations which, in the aggregate do not exceed more than one year or
providing for payments in excess of $10,000 in the aggregate; (v)
collective bargaining agreement; or (vi) agreement with any present or
former officer or director of OAD.
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Section 1.11 Material Contract Defaults. (a) TRIPLE is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of TRIPLE and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which TRIPLE has not taken adequate steps to prevent
such a default from occurring.
(b) OAD is not in default in any material respect under the terms of any
outstanding contract, agreement, lease, or other commitment which is material to
the business, operations, properties, assets or condition of OAD and there is no
event of default in any material respect under any such contract, agreement,
lease, or other commitment in respect of which OAD has not taken adequate steps
to prevent such a default from occurring.
Section 1.12 No Conflict With Other Instruments. (a) The executhis
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which TRIPLE is a party or to which any of its
properties or operations are subject.
(b) The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the breach of any
term or provision of, constitute an event of default under, or terminate,
accelerate or modify the terms of any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which OAD is a
party or to which any of its properties or operations are subject.
Section 1.13 Governmental Authorizations. (a) Except as set forth in the
TRIPLE Schedules, TRIPLE has the licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof.
(b) Except as set forth in the OAD Schedules, OAD has the licenses,
franchises, permits, and other governmental authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted on the date hereof.
Section 1.14 Compliance With Laws and Regulations. (a) Except as set forth
in the TRIPLE Schedules, to the best of their knowledge TRIPLE has complied with
the applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or condition of TRIPLE or except to the extent that noncompliance would
not result in the occurrence of any material liability for TRIPLE.
(b) Except as set forth in the OAD Schedules, to the best of their
knowledge OAD has complied with the applicable statutes and regulations of any
federal, state, or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially adversely affect the business
operations properties assets or condition of TRIPLE or except to the extent that
noncompliance would not result in the occurrence of any material liability for
OAD.
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Section 1.15 Insurance. (a) TRIPLE All of the properties of TRIPLE are
insured as required in the country of their location.
(b) OAD All of the properties of OAD are insured as required in the country
of their location.
Section 1.16 Approval of Agreement. (a) TRIPLE The board of directors of
TRIPLE has authorized the execution and delivery of this Agreement by TRIPLE and
has approved this Agreement and the transactions contemplated hereby, and will
recommend to the SHAREHOLDER that the purchase and sale described herein be
accepted by it.
(b) OAD The board of directors of OAD has authorized the execution and
delivery of this Agreement by OAD and has approved this Agreement and the
transactions contemplated hereby, and will recommend to the SHAREHOLDER that the
purchase and sale described herein be accepted by it.
Section 1.17 Material Transactions or Affiliations. (a) TRIPLE Set
forth in the TRIPLE Schedules is a description of every contract, agreement, or
arrangement between TRIPLE and any predecessor and any person who was at the
time of such contract, agreement, or arrangement an officer, director, or person
owning of record, or known by TRIPLE to own beneficially, 5% or more of the
issued and outstanding common stock of TRIPLE and which is to be performed in
whole or in part after the date hereof or which was entered into not more than
three years prior to the date hereof. Except as disclosed in the TRIPLE
Schedules or otherwise disTRIPLE, any known interest, direct or indirect, in any
transaction with TRIPLE which was material to the business of TRIPLE and was not
in the ordinary course of business. There are no written commitments by TRIPLE
to lend any funds, or to borrow any money from, or enter into any other
transaction with, any such affiliated person.
(b) OAD Set forth in the OAD Schedules is a description of every contract,
agreement, or arrangement between OAD and any predecessor and any person who was
at the time of such contract, agreement, or arrangement an officer, director, or
person owning of record, or known by OAD to own beneficially, 5% or more of the
issued and outstanding common stock of OAD and which is to be performed in whole
or in part after the date hereof or which was entered into not more than three
years prior to the date hereof. Except as disclosed in the OAD Schedules or
otherwise disclosed herein, no officer, director, or 5% shareholder of OAD has,
or has had since inception of OAD any known interest, direct or indirect, in any
transaction with TRIPLE which was material to the business of OAD and was not in
the ordinary course of business. There are no written commitments by OAD to lend
any funds, or to borrow any money from, or enter into any other transaction
with, any such affiliated person.
11
Section 1.18 Labor Relations. (a) TRIPLE has not had work stoppage
resulting from labor problems.
(b) OAD has not had work stoppage resulting from labor problems.
Section 1.19 Schedules. (a) TRIPLE has delivered to OPAL the following
schedules, which are collectively referred to as the "TRIPLE Schedules" and
which consist of separate schedules dated as of the date of execution of this
Agreement, all certified by the chief executive officer of TRIPLE as complete,
true, and correct as of the date of this Agreement in all material respects:
(1) Schedule 1.01(a) through Schedule 1.18(a) setting forth any
exceptions, information and copies of documents required to be disclosed in
the TRIPLE Schedules by Sections 1.01(a) through 1.18(a).
(2) Schedule 1.19(a)(2) containing a list indicating the name and
address of each shareholder of TRIPLE together with the number of shares
owned by it;
(3) Schedule 1.19(a)(3) containing a description of all real property
owned by TRIPLE, together with a description of every mortgage, deed of
trust, pledge, lien, agreement, encumbrance, claim, or equity interest of
any nature whatsoever in such real property;
(4) Schedule 1.19(a)(4) including copies of the licenses, permits, and
other governmental authorizations (or requests or applications therefor)
pursuant to which TRIPLE carries on or proposes to carry on its business
(except those which, in the aggregate, are immaterial to the present or
proposed business of TRIPLE);
(5) Schedule 1.19((a)(5) listing the accounts receivable and notes and
other obligations receivable of TRIPLE as of December 31, 1996, or
thereafter other than in the ordinary course of business of TRIPLE,
indicating the debtor and amount, and classifying the accounts to show in
reasonable detail the length of time, if any, overdue, and stating the
nature and amount of any refunds, set offs, reimbursements, discounts, or
other adjustments, which are in the aggregate material and due to or
claimed by such debtor; and
(6) Schedule 1.19(a)(6) listing the accounts payable and notes and
other obligations payable of TRIPLE as of December 31, 1996, or that arose
thereafter other than in the ordinary course of the business of TRIPLE,
indicating the creditor and amount, classifying the accounts to show in
reasonable detail the length of time, if any, overdue, and stating the
nature and amount of any refunds, set offs, reimbursements, discounts, or
other adjustments, which in the aggregate are material and due to or
claimed by TRIPLE respecting such obligations.
TRIPLE shall cause the TRIPLE Schedules and the instruments and the data
delivered to OPAL hereunder to be promptly updated after the date hereof up to
and including the Closing Date.
12
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by TRIPLE. TRIPLE shall
have until July 10, 1997 to provide such schedules. If TRIPLE cannot or fails to
do so, or if OPAL acting reasonably finds any such schedules or updates provided
after the date hereof to be unacceptable, OPAL may terminate this Agreement by
giving written notice to TRIPLE within five (5) days after the schedules or
updates were due to be produced or were provided. For purposes of the foregoing,
OPAL may consider a disclosure in the TRIPLE Schedules to be "unacceptable" only
if that item would have a material adverse impact on the financial statements
listed in Section 1.04(a), taken as a whole.
(b) OAD has delivered to OPAL the following schedules, which are
collectively referred to as the "OAD Schedules" and which consist of separate
schedules dated as of the date of execution of this Agreement, all certified by
the chief executive officer of OAD as complete, true, and correct as of the date
of this Agreement in all material respects:
(1) Schedule 1.01(b) through Schedule 1.18(b) setting forth any
exceptions, information and copies of documents required to be disclosed in
the OAD Schedules by Sections 1.01(b) through 1.18(b).
(2) Schedule 1.19(b)(2) containing a list indicating the name and
address of each shareholder of OAD together with the number of shares owned
by him, her or it;
(3) Schedule 1.19(b)(3) containing a description of all real property
owned by OAD together with a description of every mortgage, deed of trust,
pledge, lien, agreement, encumbrance, claim, or equity interest of any
nature whatsoever in such real property;
(4) a Schedule 1.19(b)(4) including copies of the licenses, permits,
and other governmental authorizations (or requests or applications
therefor) pursuant to which OAD carries on or proposes to carry on its
business (except those which, in the aggregate, are immaterial to the
present or proposed business of OAD);
(5) a Schedule 1.19(b)(5) listing the accounts receivable and notes
and other obligations receivable of OAD as of December 31, 1996, or
thereafter other than in the ordinary course of business of OAD indicating
the debtor and amount, and classifying the accounts to show in reasonable
detail the length of time, if any, overdue, and stating the nature and
amount of any refunds, set offs, reimbursements, discounts, or other
adjustments, which are in the aggregate material and due to or claimed by
such debtor; and
(6) a Schedule 1.19(b)(6) listing the accounts payable and notes and
other obligations payable of OAD as of December 31, 1996, or that arose
thereafter other than in the ordinary course of the business of OAD
indicating the creditor and amount, classifying the accounts to show in
reasonable detail the length of time, if any, overdue, and stating the
nature and amount of any refunds, set offs, reimbursements, discounts, or
other adjustments, which in the aggregate are material and due to or
claimed by OAD respecting such obligations.
13
OAD shall cause the OAD Schedules and the instruments and the data
delivered to OPAL hereunder to be promptly updated after the date hereof up to
and including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by OAD. OAD shall have
until July 10, 1997 to provide such schedules. If OAD cannot or fails to do so,
or if Opal acting reasonably finds any such schedules or updates provided after
the date hereof to be unacceptable, OPAL may terminate this Agreement by giving
written notice to OAD within five (5) days after the schedules or updates were
due to be produced or were provided. For purposes of the foregoing, OPAL may
consider a disclosure in the OAD Schedules to be "unacceptable" only if that
item would have a material adverse impact on the financial statements listed in
Section 1.04(b), taken as a whole.
Section 1.20 Reserved.
Section 1.21 Reserved.
Section 1.22 Valid Obligation. (a) TRIPLE This Agreement and all agreements
and other documents executed by TRIPLE and the SHAREHOLDER in connection
herewith constitute the valid and binding obligation of TRIPLE and the
SHAREHOLDER, enforceable in accordance with its or their terms, except as may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and subject to the qualification
that the availability of equitable remedies is subject to the discretion of the
court before which any proceeding therefor may be brought.
(b) OAD This Agreement and all agreements and other documents executed by
OAD in connection herewith constitute the valid and binding obligation of OAD,
enforceable in accordance with its or their terms, except as may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and subject to the qualification
which any proceeding therefor may be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF OPAL
As an inducement to, and to obtain the reliance of TRIPLE and OAD and the
SHAREHOLDER, except as set forth in the OPAL Schedules (as hereinafter defined),
OPAL represents and warrants as follows:
Section 2.01 Organization. OPAL is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets, to carry on its business in
all material respects as it is now being conducted, and except where failure to
be so qualified would not have a material adverse effect on its business, there
14
is no jurisdiction in which it is not qualified in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the OPAL Schedules are complete and
correct copies of the Articles of Incorporation and By-Laws of OPAL as in effect
on the date hereof. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, violate any
provision of OPAL's certificate of incorporation or bylaws. OPAL has taken all
action required by law, their certificate of incorporation, bylaws or otherwise
to authorize the execution and delivery of this Agreement, and OPAL has full
power, authority, and legal right and has taken all action required by law,
their Articles of Incorporation, By-Laws, or otherwise to consummate the
transactions herein contemplated.
Section 2.02 Capitalization. OPAL's authorized capitalization consists of
49,000,000 shares of common stock, par value $.001 of which 939,196 shares are
issued and outstanding and 1,000,000 shares of Preferred Stock, par value $.001,
of which no shares are issued and outstanding. All issued and outstanding shares
are, and all shares issuable by OPAL hereunder will be, legally issued, fully
paid, and non-assessable and not issued in violation of the preemptive or other
rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. OPAL does not have
any predecessor corporation(s) or subsidiaries, and does not own, beneficially
or of record, any shares of any other corporation, except as disclosed in the
OPAL Schedules. For purposes hereinafter, the term "OPAL" also includes those
subsidiaries, if any, set forth in the OPAL Schedules.
Section 2.04 Securities Filings; Financial Statements.
(a) Since December, 1994, OPAL has timely filed all forms, reports and
documents required to be filed with the Securities and Exchange Commission,
and has heretofore delivered to TRIPLE and OAD, in the form filed with the
Commission, (i) all quarterly and annual reports on Forms 10-QSB and 10-KSB
filed since December 31, 1994, (ii) all other reports filed by OPAL with
the Securities and Exchange Commission since December 31, 1995
(collectively, the "SEC Reports") and (iii) all comment letters from the
Securities and Exchange Commission with respect to the SEC Reports. The SEC
Reports (i) were prepared in accordance with the requirements of the
Securities Exchange Act of 1934 or the Securities Act of 1933, as
appropriate, and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Included in the OPAL Schedules are (i) the unaudited balance
sheets of OPAL and the related statements of operations and cash flows as
of and for the three months ended March 31, 1997 and (ii) the audited
balance sheets of OPAL as of December 31, 1996 and December 31, 1995, and
the related audited statements of operations, stockholders' equity and cash
flows for the two fiscal years ended December 31, 1996 and December 31,
1995, together with the notes to such statements and the opinion of X.X.
Xxxxx & Co. P.A., independent certified public accountants, with respect
thereto, all as set forth in the SEC Reports.
15
(c) All such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved. The OPAL balance sheets present fairly as
of their respective dates the financial condition of OPAL. As of the date
of such balance sheets, except as and to the extent reflected or reserved
against therein, OPAL had no liabilities or obligations (absolute or
contingent) which should be reflected in the balance sheets or the notes
thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein are properly reported and
present fairly the financial condition of the assets of OPAL, in accordance
with generally accepted accounting principles. The statements of
operations, stockholders' equity and cash flows reflect fairly the
information required to be set forth therein by generally accepted
accounting principles.
(d) OPAL has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any deficiencies,
interest or penalties).
(e) OPAL has timely filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the date
hereof. Each of such income tax returns reflects the taxes due for the
period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(f) The books and records, financial and otherwise, of OPAL are in all
material aspects complete and correct and have been maintained in
accordance with good business and accounting practices.
(g) All of OPAL's assets are reflected on its financial statements,
and OPAL has no material liabilities, direct or indirect, matured or
unmatured, contingent or otherwise.
Section 2.05 Information. The information concerning OPAL set forth in this
Agreement and the OPAL Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. In addition, OPAL has
fully disclosed in writing to TRIPLE and OAD (through this Agreement or the OPAL
Schedules) all information relating to matters involving OPAL or its assets or
its present or past operations or activities which (i) indicated or may
indicate, in the aggregate, the existence of a greater than $50,000 liability or
diminution in value, (ii) have led or may lead to a competitive disadvantage on
the part of OPAL or (iii) either alone or in aggregation with other information
covered by this Section, otherwise have led or may lead to a material adverse
effect on the transactions contemplated herein or on OPAL, its assets, or its
operations or activities as presently conducted or as contemplated to be
conducted after the Closing Date, including, but not limited to, information
relating to governmental, employee, environmental, litigation and securities
matters and transactions with affiliates.
16
Section 2.06 Options or Warrants. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
stock of OPAL (the "Existing Rights").
Section 2.07 Absence of Certain Changes or Events. Since the date of the
most recent OPAL balance sheet:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets or condition of OPAL or (ii) any
damage, destruction or loss to OPAL (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties,
assets or condition of OPAL;
(b) OPAL has not (i) amended its certificate of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of OPAL; (iv) made any material change in its
method of management, operation, or accounting; (v) entered into any
transactions or agreements other than in the ordinary course of business;
(vi) made any accrual or arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination pay to any present
or former officer or employee; (vii) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or
any of its salaried employees whose monthly compensation exceed $1,000; or
(viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement, made to, for or with its officers,
directors, or employees;
(c) OPAL has not (i) granted or agreed to grant any options, warrants,
or other rights for its stock, bonds, or other corporate securities calling
for the issuance thereof; (ii) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) (ii) paid or agreed to pay any material
obligations or liabilities (absolute or contingent) (iii) sold or
transferred, or agreed to sell or transfer, any of its assets, properties,
or rights (except assets, properties, or rights not used or useful in its
business which, in the aggregate have a value of less than $1000), or
canceled, or agreed to cancel, any debts or claims (except debts or claims
which in the aggregate are of a value less than $1000); (iv) made or
permitted any amendment or termination of any contract, agreement, or
license to which it is a party if such amendment or termination is
material, considering the business of OPAL or (v) issued, delivered or
agreed to issue or deliver, any stock, bonds, or other corporate securities
including debentures (whether authorized and unissued or held as treasury
stock), except in connection with this Agreement; and
(d) to the best knowledge of OPAL, it has not become subject to any
law or regulation which materially and adversely affects, or in the future,
may adversely affect, the business, operations, properties, assets or
condition of OPAL.
17
Section 2.08 Title and Related Matters. OPAL has good and marketable title
to all of its properties, inventory, interest in properties, and assets, real
and personal, which are reflected in the most recent OPAL balance sheet or
acquired after that date (except properties, inventory, interest in properties,
and assets sold or otherwise disposed of since such date in the ordinary course
of business), free and clear of all liens, pledges, charges, or encumbrances
except (a) statutory liens or claims not yet delinquent; (b) such imperfections
of title and easements as do not and will not materially detract from or
interfere with the present or proposed use of the properties subject thereto or
affected thereby or otherwise materially impair present business operations on
such properties; and (c) as described in the OPAL Schedules. Except as set forth
in the OPAL Schedules, OPAL owns, free and clear of any liens, claims,
encumbrances, royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all products it is currently manufacturing, including
the underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information utilized in
connection with OPAL's business. Except as set forth in the OPAL Schedules, no
third party has any right to, and OPAL has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of OPAL or any material portion of its
properties, assets, or rights.
Section 2.09 Litigation and Proceedings. Except as set forth in the OPAL
Schedules, there are no actions, suits, proceedings or investigations pending
or, to the knowledge OPAL after reasonable investigation, threatened by or
against OPAL or affecting OPAL or its properties, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. OPAL has no knowledge of any default on
its part with respect to any judgement, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator, or governmental agency or
instrumentality or any circumstance which after reasonable investigation would
result in the discovery of such default.
Section 2.10 Contracts.
(a) OPAL is not a party to, and its assets, products, technology and
properties are not bound by, any material contract, franchise, license
agreement, agreement, debt instrument or other commitments whether such
agreement is in writing or oral, except as disclosed in the SEC Reports or
the OPAL Schedules.
(b) All contracts, agreements, franchises, license agreements, and
other commitments to which OPAL is a party or by which its properties are
bound and which are material to the operations of OPAL taken as a whole are
valid and enforceable by OPAL in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(c) OPAL is not a party to or bound by, and the properties of OPAL are
not subject to any contract, agreement, other commitment or instrument; any
charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects, the
business operations, properties, assets, or condition of OPAL; and
18
(d) OPAL is not a party to any oral or written (i) contract for the
employment of any officer or employee which is not terminable on 30 days,
or less notice; (ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv) guaranty of
any obligation, (v) collective bargaining agreement; or (vi) agreement with
any present or former officer or director of OPAL.
Section 2.11 Material Contract Defaults. OPAL is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations, properties,
assets or condition of OPAL and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which OPAL has not taken adequate steps to prevent such a default
from occurring.
Section 2.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which OPAL
is a party or to which any of its assets or operations are subject.
Section 2.13 Governmental Authorizations. OPAL has all licenses,
franchises, permits, and other governmental authorizations necessary to conduct
its business as conducted on the date hereof. Except for compliance with federal
and state securities or corporation laws, as hereinafter provided, no
authorization, approval, consent or order of, of registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by OPAL of this Agreement and the coLaws and
Regulations. To the best of its knowledge, OPAL has complied with all applicable
statutes and regulations of any federal, state, or other applicable governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets or
condition of OPAL or except to the extent that noncompliance would not result in
the occurrence of any material liability. This compliance includes, but is not
limited to, the filing of all reports to date with federal and state securities
authorities.
Section 2.15 Insurance. All of the properties of OPAL are fully insured for
their full replacement cost.
Section 2.16 Approval of Agreement. The board of directors of OPAL has
authorized the execution and delivery of this Agreement by OPAL and has approved
this Agreement and the transactions contemplated hereby.
19
Section 2.17 Continuity of Business Enterprises. OPAL has no commitment or
present intention to liquidate either TRIPLE or OAD or sell or otherwise dispose
of a material portion of TRIPLE or OAD's business or assets following the
consummation of the transactions contemplated hereby.
Section 2.18 Material Transactions or Affiliations. Except as disclosed
herein and in the OPAL Schedules, there exists no contract, agreement or
arrangement between OPAL and any predecessor and any person who was at the time
of such contract, agreement or arrangement outstanding common stock of OPAL and
which is to be performed in whole or in part after the date hereof or was
entered into not more than three years prior to the date hereof. Neither any
officer, director, nor 5% shareholder of OPAL has, or has had since inception of
OPAL, any known interest, direct or indirect, in any such transaction with OPAL
which was material to the business of OPAL. OPAL has no commitment, whether
written or oral, to lend any funds to, borrow any money from, or enter into any
other transaction with, any such affiliated person.
Section 2.19 Labor Relations. OPAL has not had work stoppage resulting
from labor problems. To the knowledge of OPAL, no union or other collective
bargaining organization is organizing or attempting to organize any employee of
OPAL.
Section 2.20 OPAL Schedules. OPAL has delivered to both TRIPLE and OAD the
following schedules, which are collectively referred to as the "OPAL Schedules"
and which consist of separate schedules, which are dated the date of this
Agreement, all certified by the chief executive officer of OPAL to be complete,
true, and accurate in all material respects as of the date of this Agreement:
(a) Schedule 2.01 through Schedule 2.17 setting forth any exceptions,
information and copies of documents required to be disclosed in the OPAL
Schedules by Sections 2.01 through 2.17.
(b) Schedule 2.20(b) containing a description of all real property
owned by OPAL, together with a description of every mortgage, deed of
trust, pledge, lien, agreement, encumbrance, claim, or equity interest of
any nature whatsoever in such real property;
(c) Schedule 2.20(c) including copies of all licenses, permits, and
other governmental authorizations (or requests or applications therefor)
pursuant to which OPAL carries on or proposes to carry on its business
(except those which, in the aggregate, are immaterial to the present or
proposed business of OPAL);
(d) Schedule 2.20(d) listing the accounts receivable and notes and
other obligations receivable of OPAL as of March 31, 1997, or thereafter
other than in the ordinary course of business of OPAL, indicating the
debtor and amount, and classifying the accounts to show in reasonable
detail the length of time, if any, overdue, and stating the nature and
amount of any refunds, set offs, reimbursements, discounts, or other
adjustments, which are in the aggregate material and due to or claimed by
such debtor; and;
20
(e) Schedule 2.20(e) listing the accounts payable and notes and other
obligations payable of OPAL as of March 31, 1997, or that arose thereafter
other than in the ordinary course of the business of OPAL, indicating the
creditor and amount, classifying the accounts to show in reasonable detail
the length of time, if any, overdue, and stating the nature and amount of
any refunds, set offs, reimbursements, discounts, or other adjustments,
which in the aggregate are material and due to or claimed by OPAL
respecting such obligations.
OPAL shall cause the OPAL Schedules and the instruments and data delivered
to TRIPLE and OAD hereunder to be promptly updated after the date hereof up to
and including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by OPAL. OPAL shall have
until July 10, 1997 to provide such schedules. If OPAL cannot or fails to do so,
or if either TRIPLE or OAD acting reasonably find any such schedules or updates
provided after the date hereof to be unacceptable according to the criteria set
forth below, either TRIPLE or OAD, may terminate this Agreement by giving
written notice to OPAL within five (5) days after the schedules or updates were
due to be produced or were provided. For purposes of the foregoing, either
TRIPLE or OAD may consider a disclosure in the OPAL Schedules to be
"unacceptable" only if that item would have a material adverse impact on the
financial statements listed in Section 2.04(b), taken as a whole.
Section 2.21 Reserved.
Section 2.22 Reserved.
Section 2.23 Valid Obligation. This Agreement and all agreements and other
documents executed by OPAL in connection herewith constitute the valid and
binding obligation of OPAL, enforceable in accordance with its or their terms,
except as may be limited by bankruptcy, insolvency, moratorium or other similar
laws affecti of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought.
ARTICLE III
PURCHASE AND SALE
Section 3.01 Purchase and Sale. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
the SHAREHOLDER shall assign, transfer and deliver to OPAL, free of all liens,
pledges, encumbrances, charges, restrictions or known claims of any kind,
nature, or description, one share of TRIPLE and, 50,000 shares of OAD common
stock (the "Purchased Shares") set forth in Schedule 3.01(a) & (b) attached
hereto, in the aggregate constituting all of the issued and outstanding shares
of common stock of both TRIPLE and OAD immediately following the Closing. In
exchange for the transfer of the Purchased Shares by the SHAREHOLDER, OPAL shall
pay and/or issue to the SHAREHOLDER, at Closing, an aggregate of (1) 2,100,000
of cash by means of the cancellation of a $2,100,000 promissory note payable to
21
OPAL by the SHAREHOLDER its assignment or transaction producing a like result,
(2) 100,000 shares of OPAL Series A Preferred Stock, $.001 par value, which is
the aggregate shall have a vote equal to thirty percent (30%) of the total vote
on all corporate matters, and (3) 8,452,768 common shares of OPAL, $.001 par
value.
It is hereby acknowledged and agreed that both the Purchased Shares to be
transferred by the SHAREHOLDER and the OPAL Shares constituting a portion of the
Purchase Price shall be "restricted stock" as that term is defined under Rule
144 of the Securities Act of 1933. Both the SHAREHOLDER and OPAL represent and
agree that the Purchased Shares and the OPAL Shares being acquired by each are
being acquired for investment purposes without intent to resell such shares and
that the subsequent sale or transfer of such shares may only be made in
accordance with registration or a valid exemption from registration pursuant to
U.S. securities laws, to the extent such laws govern any such sale or transfer.
Further, it is understood and agreed that all certificates evidencing the OPAL
Shares shall bear the foll-transfer orders with the respective transfer agents
for such shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF EITHER AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
Section 3.02 Anti-Dilution. The number of Purchased Shares and OPAL Shares
issuable upon pursuant to Section 3.01 shall be appropriately adjusted to take
into account any stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the common stock of TRIPLE, OAD or OPAL
which may occur between the date of the execution of this Agreement and the
Closing Date.
Section 3.03 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than , 1997,
-----------------
subject to the right of OPAL, TRIPLE or OAD to extend such Closing Date by up to
an additional sixty (60) days. Such Closing shall take place at a mutually
agreeable time and place.
Section 3.04 Closing Events. At the Closing, OPAL, TRIPLE and OAD shall
execute, acknowledge, and deliver (or shall ensure to be executed, acknowledged,
and delivered) any and all certificates, opinions, financial statements,
schedules, agreements, resolutions, rulings or other instruments required by
this Agreement to be so delivered at or prior to the Closing, together with such
other items as may be reasonably requested by the parties hereto and their
respective legal counsel in order to effectuate or evidence the transactions
contemplated hereby.
22
Section 3.05 Termination.
(a) This Agreement may be terminated by the board of directors of
either OPAL, TRIPLE or OAD at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to
restrain, prohibit, or invalidate the transactions contemplated by
this Agreement and which, in the judgement of such board of directors,
made in good faith and based upon the advice of its legal counsel,
makes it inadvisable to proceed with the purchase and sale
contemplated hereby; or
(ii) any of the transactions contemplated hereby are disapproved
by any regulatory authority whose approval is required to consummate
such transactions (which does not include the Securities and Exchange
Commission) or in the judgement of such board of directors, made in
good faith and based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will be
obtained only on a condition or conditions which would be unduly
burdensome, making it inadvisable to proceed with the purchase and
sale.
(b) This Agreement may be terminated by the board of directors of OPAL
at any time prior to the Closing Date if:
(i) other than in the close of business, there shall have been
any change after the date of the latest audited balance sheet of
either TRIPLE or OAD in the assets, properties, business, or financial
condition of either TRIPLE or OAD, which could have a materially
prolonged or permanent adverse effect on the financial statements of
TRIPLE or OAD listed in Section 1.04(a) and (b) taken as a whole,
except any changes disclosed in either TRIPLE or OAD Schedules;
(ii) the board of directors of OPAL determines in good faith and
after notice that one or more of OPAL's conditions to Closing has not
occurred, and after notice has not been cured through no fault of
OPAL.
(iii) either TRIPLE or OAD shall fail to comply in material
respect with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of either
TRIPLE or OAD contained herein shall be inaccurate in any material
respect, where such noncompliance or inaccuracy has not been cured
with ten (10) days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (b) of Section 3.05,
this Agreement shall be of no further force or effect, and no obligation, right
or liability shall arise hereunder, except that both TRIPLE and OAD shall bear
its own costs as well as the reasonable costs of OPAL in connection with the
negotiation, preparation, and execution of this Agreement.
23
(c) This Agreement may be terminated by the board of directors of
either TRIPLE or OAD at any time prior to the Closing Date if:
(i) there shall have been any change after the date of the latest
balance sheet of OPAL in the assets, properties, business or financial
condition of OPAL, which could have a material adverse effect on the
financial statements of OPAL listed in Section 2.04 taken as a whole,
except any changes disclosed in the OPAL Schedules;
(ii) if the board of directors of either TRIPLE or OAD determine
in good faith that one or more of either TRIPLE or OAD's conditions to
Closing has not occurred, through no fault of either TRIPLE or OAD.
(iii) either TRIPLE or OAD takes the termination action specified
in Section 2.20(a) or (b) as a result of OPAL Schedules or updates
thereto which OPAL finds unacceptable;
(iv) on or before May 15, 1997, either TRIPLE or OAD notifies
OPAL that it or their investigation pursuant to Section 4.01 below has
uncovered information which it finds unacceptable by the same criteria
set forth in Section 2.20(a) or (b);
(v) OPAL shall fail to comply in any material respect with any of
its covenants or agreements contained in this Agreement or if any of
the representations or warranties of OPAL contained herein shall be
inaccurate in any material respect, where such noncompliance or
inaccuracy has not been cured within ten (10) days after written
notice hereof.
If this Agreement is terminated pursuant to this paragraph (c) of Section
3.05, this Agreement shall be of no further force or effect, and no obligation,
right or liability shall arise hereunder, except that OPAL shall bear their own
costs as well as the reasonable costs of both TRIPLE and OAD in connection with
the negotiation, preparation, and execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. OPAL, TRIPLE and OAD will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of OPAL, TRIPLE and OAD, as the case
may be, in order that each may have a full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other, and each
will furnish the other with such additional financial and operating data and
other information as to the business and properties of OPAL, TRIPLE or OAD, as
the case may be, as the other shall from time to time reasonably request.
Without limiting the foregoing, as soon as practicable after the end of each
24
fiscal quarter (and in any event through the last fiscal quarter prior to the
Closing Date), each party shall provide the other with quarterly internally
prepared and unaudited financial statements.
Section 4.02 Delivery of Books and Records. At the Closing, TRIPLE and OAD
shall deliver to OPAL the corporate documents necessary for OPAL to fulfill its
U.S. reporting obligations.
Section 4.03 Third Party Consents and Certificates. OPAL, TRIPLE and OAD
agree to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
Section 4.04 Reserved.
Section 4.05 Officers and Directors. On or before Closing, OPAL shall cause
to be delivered such resignations of all of the officers and directors of OPAL
and shall request and shall cooperate with TRIPLE and OAD with respect to the
appointment of new officers and directors for OPAL as the Shareholder shall
request.
Section 4.06 Reserved.
Section 4.07 Exclusive Dealing Rights. Until 5:00 p.m. CDT May 15,1997, in
recognization of the substantial time and effort which OPAL has spent and will
continue to spend in investigating TRIPLE and OAD and its business and in
addressing the matters related to the transactions contemplated herein, each of
which may preempt or representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except where
required by fiduciary obligations under applicable law as advised by counsel,
participate in any negotiations with or provide any information to or otherwise
cooperate in any other way with, or facilitate or encourage any effort or
attempt by, any corporation, partnership, person or other entity or group (other
than OPAL and its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of capital
stock, (including without limitation, any public or private offering of the
common stock of either TRIPLE or OAD) of similar transactions involving either
TRIPLE or OAD (all such transactions being referred to as "TRIPLE/OAD
Acquisition Transactions"). If either TRIPLE or OAD receives any proposal with
respect to a TRIPLE/OAD Acquisition Transaction, it will immediately communicate
to OPAL the fact that it has received such proposal and the principal terms
thereof.
Section 4.08 Actions prior to Closing.
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the OPAL, TRIPLE and OAD Schedules or as permitted or
contemplated by the Agreement, OPAL (subject to paragraph (d) below) TRIPLE and
OAD respectively, will each:
(i) carry on its business in substantially the same manner as it
has heretofore;
25
(ii) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither OPAL, TRIPLE or OAD will:
(i) make any changes in their articles or certificate of
incorporation or bylaws;
(ii) take any action described in Section 1.07(a) in the case of
TRIPLE, 1.07 (b) in the case of OAD, or in Section 2.07, in the case
of OPAL (all except as permitted therein or as disclosed in the
applicable party's schedules);
(iii) enter into or amend any contract, agreement, or other
instrument of any of the types described in such party's schedules,
except that a party may enter into or amend any contract, agreement,
or other instrument in the ordinary course of business involving the
sale of goods or services; or
(iv) sell any assets or discontinue any operations, sell any
shares of capital stock (other than the sale of securities underlying
existing warrants or options of OPAL) or conduct any similar
transactions other than in the ordinary course of business (other than
transactions contemplated herein or in the OPAL, TRIPLE or OAD
Schedules).
Section 4.09 Sales Under Rule 144 or 145, If Applicable.
(a) OPAL will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including timely filing of all periodic reports required under
the provisions of the Exchange Act and the rules and regulations promulgated
thereunder.
26
(b) Upon being informed in writing by any such person holding restricted
stock of OPAL that such person intends to sell any shares under Rule 144, Rule
145 or Regulation S promulgated under the Securities Act (including any rule
adopted in substitution or replacement thereof), OPAL will certify in writing to
such person that it has filed all of the reports required to be filed by it
under the Exchange Act to enable such person to sell such person's restricted
stock under Rule 144, 145 or Regulation S, as may be applicable in the
circumstances, or will inform such person in writing that it has not filed any
such report or reports.
(c) If any certificate representing any such restricted stock is presented
to OPAL's transfer agent for registration of transfer in connection with any
sale theretofore made under Rule 144, 145 or Regulation S, provided such
certificate is duly endorsed for transfer by the appropriate person(s) in each
case with reasonable assurances that such endorsements are genuine and
effective, and is accompanied by an opinion of counsel satisfactory to OPAL and
its counsel that the stock transfer has complied with the requirements or Rule
144, 145 or Regulation S, as the case may be, OPAL will promptly instruct its
transfer agent to register such shares and to issue one or more new certificates
representing such shares to the transferee and, if appropriate under the
provisions of Rule 144, 145 or Regulation S, as the case may be, free of any
stop transfer order or restrictive legend. The provisions of this Section 4.09
shall survive the Closing and the consummation of the transactions contemplated
by this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF OPAL
The obligations of OPAL under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants. The
representations and warranties made by TRIPLE, OAD and the SHAREHOLDER in this
Agreement were true when made and shall be true at the Closing Date with the
same force and effect as if such representations and warranties were made at and
as of the Closing Date (except for changes therein permitted by this Agreement).
Additionally, TRIPLE, OAD and the SHAREHOLDER shall have performed and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by TRIPLE, OAD and the SHAREHOLDER.
OPAL shall have been furnished with certificates, signed by duly authorized
executive officers of TRIPLE, OAD and the SHAREHOLDER and dated the Closing
Date, to the foregoing effect.
Section 5.02 Officer's Certificate. OPAL shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
each respective company to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of TRIPLE and OAD
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the TRIPLE and OAD Schedules, by or against TRIPLE or
OAD, which might result in any material adverse change in any of the assets,
properties, business, or operations of TRIPLE.
27
Section 5.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business,
or operations of either TRIPLE or OAD nor shall any event have occurred which,
with the lapse of time or the giving of notice, is determined to be unacceptable
in accordance with Section 1.19(a) or (b).
Section 5.04 Good Standing. OPAL shall have received a certificate of good
standing from the applicable issuing authority in the BVI dated as of the date
within ten days prior to the Closing Date certifying that both TRIPLE and OAD
are in good standing as corporations in the BVI and the BVI respectively.
Section 5.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of OPAL and TRIPLE and OAD after the Closing Date on the basis as
presently operated shall have been obtained.
Section 5.07 Other Items. OPAL shall have received such further opinions,
documents, certificates or instruments relating to the transactions contemplated
hereby as OPAL may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SHAREHOLDER
The obligations of TRIPLE, OAD and the SHAREHOLDER under this Agreement are
subject to the satisfaction, at or before the Closing Date, of the following
conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants. The
representations and warranties made by TRIPLE, OAD and the SHAREHOLDER in this
Agreement were true when made and shall be true at the Closing Date with the
same force and effect as if such representations and warranties were made at and
as of the Closing Date (except for changes therein permitted by this Agreement).
Additionally, TRIPLE, OAD and the SHAREHOLDER shall have performed and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by TRIPLE, OAD and the SHAREHOLDER.
Section 6.02 Officer's Certificate. Both TRIPLE and OAD shall have been
furnished with certificates dated the Closing Date and signed by duly authorized
28
executive officers of OPAL, to the effect that no litigation, proceeding,
investigation or inquiry is pending, or to the best knowledge of OPAL
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the OPAL Schedules, by or against OPAL, which might
result in any material adverse change in any of the assets, properties or
operations of OPAL.
Section 6.03 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any change in the financial condition, business or
operations of OPAL nor shall any event have occurred which, with the lapse of
time or the giving of notice is determined to be unacceptable using the criteria
set forth in Section 2.20.
Section 6.04 Good Standing. TRIPLE and OAD shall have received a
certificate of good standing from the Secretary of State of the State of Nevada
or other appropriate office, dated as of a date within ten daysction 6.05 No
Governmental Prohibition. No order, statute, rule, regulation, executive order,
injunction, stay, decree, judgment or restraining order shall have been enacted,
entered, promulgated or enforced by any court or governmental or regulatory
authority or instrumentality which prohibits the consummation of the
transactions contemplated hereby.
Section 6.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of OPAL, TRIPLE and OAD after the Closing Date on the basis as
presently operated shall have been obtained.
Section 6.07 Other Items. Both TRIPLE and OAD shall have received further
opinions, documents, certificates, or instruments relating to the transactions
contemplated hereby as either TRIPLE or OAD may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. OPAL, TRIPLE, and OAD agree that, except as set out
on Schedule 7.01 attached hereto, there were no finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. OPAL, TRIPLE and OAD agree to
indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.02 Alternate Dispute Resolution. The parties agree and
contract that any and all claims, disputes, or controversies arising out of or
in any way relating to this Agreement, any provision hereof, any contract
related hereto, any benefits hereunder, or the claimed breach of termination of
29
any provision of any of same, whether based on the Constitution, statutes,
Code(s) or at common law of the United States or of any State, including the
arbitability of any claim, dispute or controversy, shall be exclusively resolved
by the parties first trying to settle the dispute in mediation under the
Mediation Rules administered by and conducted by the Neutrals of the national
Association for Dispute resolution, Inc., failing which, settlement of the
dispute shall be by binding arbitration conducted under the Arbitration Rules
of, and before an Arbitration tribunal of the National Association for Dispute
resolution, Inc. The arbitrator(s) shall have full and complete discretion and
authority to do substantial justice for the parties to the dispute. In the event
that the National Association for Dispute resolution, Inc. is not available or
is no longer in business, the arbitration provided hereunder shall be conducted
by the American Arbitration Association under their rules and procedures.
Section 7.03 Governing Law. This agreement shall be governed by, enforced,
and construed under and in accordance with the laws of the United States of
America and, with respect to the matters of state law, with the laws of the
State of Texas, without giving effect to principles of conflicts of law
thereunder.
Section 7.04 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to OPAL, to: Opal Technologies, Inc.
0000 Xxxxx 000 Xxxx
Xxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxxxx
If to TRIPLE or OAD: Bestalong Group, Inc.
Xxxxx 0000, Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attn: Xxxx Xxxx
With copy to Vanderkam
and Xxxxxxx: Vanderkam & Xxxxxxx
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.05 Attorney's Fees. In the event that either party institutes any
30
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the prevailing party shall be reimbursed by the
losing party for all costs, including reasonable attorney's fees, incurred in
connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 7.06 Confidentiality. Each party hereto agrees with the other that,
unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
workpapers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
7.07 Public Announcements and Filings. Unless required by applicable law or
regulatory authority, none of the parties will issue any report, statement or
press release to the general public, to the trade, to the general trade or trade
press, or to any third party (other than its advisors and representatives in
connection with the transactions contemplated hereby) or file any document,
relating to this Agreement and the transactions contemplated hereby, except as
may be mutually agreed by the parties. Copies of any such filings, public
announcements or disclosures, including any announcements or disclosures
mandated by law or regulatory authorities, shall be delivered to each party at
least one (1) business day prior to the release thereof.
Section 7.08 Third Party Beneficiaries. This contract is strictly between
OPAL, TRIPLE, OAD and the SHAREHOLDER, and, except as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.09 Expenses. Subject to Sections 3.05 and 7.04 above, whether or
not the purchase and sale is consummated, OPAL, TRIPLE and OAD will bear their
own respective expenses, including legal, accounting and professional fees,
incurred in connection with the purchase and sale or any of the other
transactions contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.12 Amendment or Waiver. aw, or in equity, and may be enforced
concurrently herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or any other
31
default then, theretofore, or thereafter occurring or existing. At any time
prior to the Closing Date, this Agreement may by amended by a writing signed by
all parties hereto, with respect to any of the terms contained herein, and any
term or condition of this Agreement may be waived or the time for performance
may be extended by a writing signed by the party or parties for whose benefit
the provision is intended.
Section 7.13 Legal Representation. Each party hereto, including the
SHAREHOLDER which is signing this Agreement, hereby acknowledges that he or it
has been provided an opportunity to consult with legal counsel of his or its
choice to seek counsel with respect to the transactions contemplated herein and
that each such party has secured such advice as he or it deems necessary to
understand the terms of this Agreement.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, as of the
date first-above written.
32
ATTEST: OPAL TECHNOLOGIES, INC.
-------------------------------- By:
Secretary or Assistant Secretary ---------------------------------
President
ATTEST: TRIPLE STAR HOLDING LTD.
/s/ illegible By: /s/ illegible
-------------------------------- ---------------------------------
illegible illegible
Secretary or Assistant Secretary Chairman
ATTEST: OPAL AGRICULTURE DEVELOPMENT LTD.
/s/ illegible By: /s/ illegible
-------------------------------- ---------------------------------
illegible illegible
Secretary or Assistant Secretary Chairman
The undersigned shareholder of both TRIPLE and OAD hereby agrees to
participate in the purchase and sale of the Purchased Shares on the terms set
forth above and to otherwise facilitate the purchase and sale contemplated
herein. Each of the undersigned hereby represents and affirms that he has read
each of the representations and warranties of both TRIPLE and OAD set out in
Article I hereof and that, to the best of his knowledge, all of such
representations and warranties are true and correct.
BESTALONG GROUP INC.
By: /s/ illegible
--------------------------------------
Chairman
33
