AGREEMENT AND PLAN OF MERGER BY AND AMONG ADVENTURE HOLDINGS, S.A. THE SHAREHOLDERS OF ADVENTURE HOLDINGS, S.A. and TRINITY PARTNERS ACQUISITION COMPANY INC. Dated as of March 24, 2005
AGREEMENT
AND PLAN OF MERGER
BY
AND AMONG
ADVENTURE
HOLDINGS, S.A.
THE
SHAREHOLDERS OF ADVENTURE HOLDINGS, S.A.
and
TRINITY
PARTNERS ACQUISITION COMPANY INC.
Dated
as of March 24, 2005
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is
made and entered into as of March 24, 2005, by and among Adventure Holdings,
S.A., a corporation organized under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands (“Adventure”), V
Capital S.A., a corporation organized under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands, (“V
Capital”), G
Bros S.A., a corporation organized under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands, (“G
Bros”),
▇▇▇▇▇▇ ▇. Gourdomichalis (“G.
Gourdomichalis”),
Stathis D. Gourdomichalis (“S.
Gourdomichalis”) and
Ion ▇. ▇▇▇▇▇▇▇▇▇▇ (“Varouxakis” and
together with V Capital, G Bros, G. Gourdomichalis, S. Gourdomichalis and
Varouxakis, and together with the permitted successors and assigns under Section
6.13 below, each an “Adventure
Shareholder” and
collectively, the “Adventure
Shareholders”) and
Trinity Partners Acquisition Company Inc., a corporation organized under the
laws of the State of Delaware (“Trinity”).
WITNESSETH:
WHEREAS,
the boards of directors of each of Trinity and Adventure believe it is in the
best interests of each company and their respective stockholders that Adventure
acquire Trinity through the merger of Trinity with and into Adventure (the
“Merger”) and,
in furtherance thereof, have approved the Merger;
WHEREAS,
pursuant to the Merger, among other things, each of the issued and outstanding
shares of Trinity Capital Stock (as defined below) shall be converted into the
right to receive shares of Adventure, par value $0.001 per share (the
“Adventure
Shares”);
WHEREAS,
the parties intend that the Merger shall constitute a plan of reorganization
pursuant to Section 368 of the Code (as defined below);
WHEREAS,
Trinity, on the one hand, and Adventure and the Adventure Shareholders, on the
other hand, desire to make certain representations, warranties, covenants and
other agreements in connection with the Merger.
NOW,
THEREFORE, in
consideration of the foregoing premises and the representations, warranties,
covenants and agreements contained herein, and for other good and valuable
consideration, the parties hereto, intending to be legally bound hereby, agree
as follows:
Article
I.
DEFINITIONS
| 1.1 |
Definitions. |
Except as
otherwise specified herein, the following terms, when used in this Agreement,
have the respective meanings set forth below:
“Action” means
any claim, action, suit, arbitration, inquiry, proceeding or investigation by or
before any Governmental Authority.
“Affiliate” means,
with respect to any Person, any other Person directly or indirectly Controlling,
Controlled by or under common Control with such other Person.
“Business
Day” means
any day that is not a Saturday, a Sunday or other day on which banks are
required or authorized by Law to be closed in the City of New York.
“Code” means
the United States Internal Revenue Code of 1986.
“Control” means,
as to any Person, the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise. The terms “Controlled” and
“Controlling” shall
have a correlative meaning.
“Dollar” or
“$” means
the United States Dollar.
“ERISA” means
the United States Employee Retirement Income Security Act of 1974, and the rules
and regulations promulgated thereunder.
“Exchange
Act” shall
mean the United States Securities Exchange Act of 1934.
“Exchange
Ratio” means
1.0.
“GAAP” means
United States generally accepted accounting principles as in effect, from time
to time, consistently applied.
“Governmental
Authority” means
any United States (federal, state or local) or foreign government, governmental,
regulatory or administrative authority, agency or commission or any court,
tribunal, or judicial or arbitral body.
“Knowledge
of Adventure” or “Knowledge” with
respect to Adventure means the knowledge of any of the following: (i) any of the
Adventure Shareholders and (ii) any officer or director of Adventure.
“Knowledge
of Trinity” or “Knowledge” with
respect to Trinity means the knowledge of any officer or director of
Trinity.
“Law” means
any United States (federal, state or local) or foreign statute, law, ordinance,
regulation, rule, code, order, judgment, injunction or decree.
“Lien” means,
with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind, whether voluntarily incurred or
arising by operation of Law or otherwise, in respect of such property or
asset.
“Material
Adverse Effect” means
with respect to Adventure or Trinity, as applicable, a material adverse effect
on the business, operations, properties, assets, condition (financial or
otherwise) or results of operations of it and its subsidiaries taken as a whole,
or on its ability to consummate the transactions contemplated hereby except (i)
any effect arising from this Agreement or the transactions contemplated hereby,
(ii) any effect applicable generally to the industries in which Adventure and
the Subsidiaries operate and (iii) general economic or financial
effects.
“Order” means
any order, writ, judgment, injunction, decree, stipulation, determination or
award entered by or with any Governmental Authority.
“Per
Share Merger Consideration” means
for each share of Trinity Capital Stock, the right to receive consideration
equal to one (1) fully paid and nonassessable Adventure Share.
“Person” means
any natural person, general or limited partnership, corporation, limited
liability company, firm, association, trust or other legal entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
“SEC” means
the United States Securities and Exchange Commission.
“Securities
Act” shall
mean the Securities Act of 1933.
“Subsidiaries” means
Adventure Two, S.A. and Adventure Three S.A., each of which is a "Subsidiary"
and both of which are Subsidiaries of Adventure.
“Tax” or
“Taxes” means
all United States (federal, state or local) or foreign income, excise, gross
receipts, ad valorem, sales, use, employment, franchise, profits, gains,
property, transfer, use, payroll, intangibles or other taxes, fees, stamp taxes,
duties, charges, levies or assessments of any kind whatsoever (whether payable
directly or by withholding), together with any interest and any penalties,
additions to tax or additional amounts imposed by any Tax authority with respect
thereto.
“Tax
Returns” means
all returns and reports (including elections, declarations, disclosures,
schedules, estimates and information returns) required to be supplied to a Tax
authority relating to Taxes.
“Trademarks” means
all of those trade names, trademarks, service marks, jingles, slogans, logos,
trademark and service ▇▇▇▇ registrations and trademark and service ▇▇▇▇
applications owned, used, held for use, licensed by or leased by Adventure or
the Subsidiaries and the goodwill appurtenant thereto.
“Trinity
Capital Stock” means
collectively, the Trinity Common Stock and the Trinity Class B Common
Stock.
| 1.2 |
Other
Defined Terms. |
Except as
otherwise specified herein, the following terms have the respective meanings as
defined in the Sections set forth
below:
|
Term |
Section | |
|
Adventure |
Preamble | |
|
Adventure
Acquisition Transaction |
5.2(a) | |
|
Adventure
Exchange Securities |
6.6 | |
|
Adventure
Financial Statements |
3.13 | |
|
Adventure
Intellectual Property |
3.15(a) | |
|
Adventure
Options |
3.3 | |
|
Adventure
Registration Statement |
6.2 | |
|
Adventure
Shareholders |
Preamble | |
|
Adventure
Shares |
Recitals | |
|
Adventure
Software |
3.15(b)(iii) | |
|
Agreement |
Preamble | |
|
BCA |
2.1 | |
|
Certificates |
2.6 | |
|
Closing
and Closing Date |
2.2 | |
|
Contracts |
3.5(b) | |
|
DGCL |
2.1 | |
|
Dissenting
Shares |
2.7 | |
|
Effective
Time |
2.2 | |
|
Employment
Agreements |
6.12 | |
|
Enforceability
Exception |
3.4(a) | |
|
Environmental
Laws |
3.8(c) | |
|
Exchange
Act Listing |
6.5 | |
|
Exchange
Agent |
2.9(a) | |
|
Final
Statements |
3.13 | |
|
Free
Destiny |
3.9(b)(1) | |
|
Free
Envoy |
3.9(b)(2) | |
|
G
Bros |
Preamble | |
|
G.
Gourdomichalis |
Preamble | |
|
Indemnified
Party |
9.3(a) | |
|
Indemnifying
Party |
9.3(a) |
|
Licensed
Software |
3.15(b)(ii) | |
|
Lock-Up
Agreements |
7.2(j) | |
|
Loss |
9.2(a) | |
|
Merger |
Recitals | |
|
Merger
Certificate |
2.2 | |
|
Notice
of Claim |
9.3(a) | |
|
Owned
Software |
3.15(b)(i) | |
|
PFIC |
3.21 | |
|
Proxy
Statement |
6.2 | |
|
S.
Gourdomichalis |
Preamble | |
|
Stock
Exchange Listing |
6.5 | |
|
Surviving
Corporation |
2.1 | |
|
Trinity |
Preamble | |
|
Trinity
Acquisition Transaction |
5.2(b) | |
|
Trinity
Class B Common Stock |
4.2 | |
|
Trinity
Class W Warrants |
4.2 | |
|
Trinity
Class Z Warrants |
4.2 | |
|
Trinity
Common Stock |
4.2 | |
|
Trinity
Contracts |
4.5 | |
|
Trinity
Directors |
6.4 | |
|
Trinity
Option |
4.2 | |
|
Trinity
Financial Statements |
4.13 | |
|
Trinity
Permits |
4.9 | |
|
Trinity
Principals |
7.2(j) | |
|
Trinity
Special Meeting |
3.10 | |
|
Trinity
Stockholders' Approval |
6.4 | |
|
Trinity's
SEC Reports |
4.14 | |
|
Trinity
Warrants |
4.2 | |
|
Varouxakis |
Preamble | |
|
V
Capital |
Preamble | |
|
Vessels |
3.9(b)(2) |
| 1.3 |
Rules
of Construction. |
Unless
the context otherwise requires:
(i) a term
has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(iii) “or” is
not exclusive;
(iv) “including”
means including without limitation;
(v) words in
the singular include the plural and words in the plural include the singular;
and
(vi) any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented (as
provided in such agreements) and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
Article
II.
THE
MERGER
2.1 The
Merger.
Upon the
terms and conditions set forth in this Agreement, and in accordance with the
applicable provisions of the ▇▇▇▇▇▇▇▇ Islands Business Corporation Act (the
“BCA”) and
the Delaware General Corporation Law (the
“DGCL”),
Trinity shall be merged with and into Adventure at the Effective Time. At the
Effective Time, the separate corporate existence of Trinity shall cease, and
Adventure shall
continue as the surviving corporation. The surviving corporation in the Merger
is sometimes referred to as the “Surviving
Corporation.”
2.2 Closing;
Effective Time.
The
closing of the Merger (the “Closing”) shall
take place at 10:00 a.m. Eastern Standard Time at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the first
Business Day following the date on which the last of the conditions set forth in
Article VII hereof is fulfilled or waived, or at such other time and place as
Trinity and Adventure shall agree (the date on which the closing occurs being
the “Closing
Date”). On
the Closing Date, the parties shall cause the Merger to be consummated
by filing a Certificate of Merger or like instrument (the “Merger
Certificate”) with
the Registrar of Corporations of the Republic of the ▇▇▇▇▇▇▇▇ Islands, in
accordance with the applicable provisions of the BCA (the time of acceptance by
the Registrar of Corporations of such filing being referred to herein as the
“Effective
Time”) and
with the Secretary of State of the State of Delaware, in accordance with the
applicable provisions of the DGCL.
2.3 Effect
of the Merger.
At the
Effective Time, the effect of the Merger shall be as provided in the applicable
provisions of the BCA and the DGCL. Without limiting the generality of the
foregoing, at the Effective Time, all the property, rights, privileges, powers
and franchises of Trinity shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Trinity shall become the debts, liabilities and
duties of the Surviving Corporation.
2.4 Articles
of Incorporation; By-laws.
Prior to
the filing of the Adventure Registration Statement, Adventure shall amend its
Articles of Incorporation and By-laws on terms reasonably satisfactory to
Trinity. At the Effective Time, these amended Articles of Incorporation and
By-laws shall be the Articles of Incorporation and By-laws of the Surviving
Corporation.
2.5 Directors
and Officers.
The
directors of the Surviving Corporation immediately after the Effective Time
shall be the directors set forth in Section 2.5 of the attached Adventure
Disclosure Schedule, plus such other directors as are appointed by Adventure
after the date hereof, each to hold the office of director of the Surviving
Corporation in accordance with the provisions of the applicable laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands and the Articles
of Incorporation and By-laws of the Surviving Corporation (as amended pursuant
to Section 2.4 above) until their successors are duly
qualified and elected. The
officers of the Surviving Corporation immediately after the Effective Time shall
be such officers as are appointed by Adventure after the date hereof, each to
hold office in accordance with the provisions of the By-laws of the Surviving
Corporation (as amended pursuant to Section 2.4 above).
2.6 Conversion
of Trinity Capital Stock.
Subject
to Sections 2.7 and 2.9(e), each share of Trinity Capital Stock issued and
outstanding immediately prior to the Effective Time shall be converted into the
right to receive, at the election of the holder thereof, the Per Share Merger
Consideration. At the Effective Time, all such shares of Trinity Capital Stock
converted as set forth above shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each holder of a
certificate or certificates that immediately prior to the Effective Time
represented any such shares of Trinity Capital Stock (the “Certificates”) shall
cease to have any rights with respect thereto, except the right to receive the
Per Share Merger Consideration and certain dividends or other distributions in
accordance with Section 2.9(c) upon the surrender of such Certificate, in
accordance with Section 2.9(b). Each Trinity Warrant and Trinity Option issued
and outstanding immediately prior to the Effective Time shall be converted into
and become warrants and options in Adventure and shall be convertible into
Adventure Shares as described in Section 6.6 of this Agreement. Exhibit 2.6
lists, as of the Effective Time, the number of Adventure Shares which shall be
issued to the Adventure Shareholders and any Trinity security holder pursuant to
this Section 2.6 and Section 6.6 hereof, assuming that all outstanding Trinity
Capital Stock and Adventure Exchange Securities (as defined in Section 6.6) are
exchanged for, or converted to, Adventure Shares as contemplated by this
Agreement.
2.7 Appraisal
Rights.
To the
extent required under the DGCL, notwithstanding any other provisions of this
Agreement to the contrary, shares of Trinity Capital Stock that are outstanding
immediately prior to the Closing and which are held by Trinity stockholders who
shall not have voted in favor of the Merger or consented thereto in writing
and who shall
have demanded properly, in writing, appraisal for such shares in accordance with
the applicable
provisions of the DGCL (collectively, the “Dissenting
Shares”) shall
not be converted into or represent the right to receive the Per Share Merger
Consideration. Such Trinity stockholders shall be entitled to receive payment of
the appraised value of such shares of Trinity Capital Stock held by them in
accordance with the applicable provisions of the DGCL, except that
all Dissenting
Shares held by Trinity stockholders who failed to perfect or who have
effectively withdrawn or lost their rights to appraisal of such shares of
Trinity Capital Stock under the applicable provisions
of the DGCL shall thereupon be deemed to have converted into and to become
exchangeable, as of the expiration of the statutory notice period following the
Closing, of the right to receive, without any interest thereon, the Per Share
Merger Consideration, upon surrender,
in the manner provided in Section 2.6 above, of the Certificate or Certificates
that formerly evidenced such shares of Trinity Capital Stock. Any payments
required to be made to the holders of any Dissenting Shares shall be funded by
Adventure.
2.8 Anti-Dilution
Provisions.
In the
event Adventure changes (or establishes a record date for changing) the number
of Adventure Shares issued and outstanding prior to the Effective Time as a
result of a stock split, stock dividend, recapitalization, subdivision,
reclassification, combination, exchange of shares or similar transaction with
respect to the outstanding Adventure Shares and the record date therefor shall
be prior to the Effective Time, the Exchange Ratio and the Per Share Merger
Consideration shall be proportionately adjusted to reflect such stock split,
stock dividend, recapitalization, subdivision, reclassification, combination,
exchange of shares or similar transaction.
2.9 Surrender
of Certificates.
(a) Exchange
Agent. As of
the Effective Time, Adventure shall deposit with such bank or trust company as
may be designated by Adventure and reasonably acceptable to Trinity (the
“Exchange
Agent”), for
the benefit of the holders of shares of Trinity Capital Stock, for exchange in
accordance with this Section 2.9, through the Exchange Agent, the Adventure
Shares issuable pursuant to Section 2.6 in exchange for outstanding shares of
Trinity Capital Stock. At the time of such deposit, Adventure shall irrevocably
instruct the Exchange Agent to deliver the Adventure Shares to Trinity’s
stockholders after the Effective Time in accordance with the procedures set
forth in this Section 2.9, subject to Sections 2.9(f) and (g).
(b) Exchange
Procedures. As soon
as reasonably practicable after the Effective Time, the Exchange Agent shall
mail to each holder of record of a Certificate whose shares were converted into
the right to receive the applicable Per Share Merger Consideration pursuant to
Section 2.6, a letter of transmittal (in form and substance satisfactory to
Adventure and Trinity), with instructions for use in surrendering the
Certificates in exchange for the applicable Per Share Merger Consideration with
respect thereto. Upon surrender of a Certificate for cancellation to the
Exchange Agent, together with such letter of transmittal, duly completed and
validly executed, and such other documents as may reasonably be required by the
Exchange Agent, the holder of such Certificate shall be entitled to receive in
exchange therefor that number of whole Adventure Shares in accordance with
Section 2.9(e), together with certain dividends or other distributions in
accordance with Section 2.9(c), and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of Trinity
Capital Stock that is not registered in the transfer records of Trinity, a
certificate evidencing the proper number of Adventure Shares may be issued in
exchange therefor to a person other than the person in whose name the
Certificate so surrendered is registered if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the person requesting
such issuance shall pay any transfer or other taxes required by reason of the
issuance of Adventure Shares to a person other than the registered holder of
such Certificate or establish to the satisfaction of Adventure that such tax has
been paid or is not applicable. Until surrendered as contemplated by this
Section 2.9(b), each Certificate shall be deemed at any time after the Effective
Time to represent only the right to receive upon such surrender the Per Share
Merger Consideration that the holder thereof has the right to receive pursuant
to the provisions of Section 2.6, plus certain dividends or other distributions
in accordance with Section 2.9(c).
(c) Distributions
with Respect to Unexchanged Shares. No
dividends or other distributions declared or made with respect to Adventure
Shares with a record date after the Effective Time shall be paid to the holder
of any unsurrendered Certificate with respect to Adventure Shares represented
thereby, if any, and all such dividends and other distributions shall be paid by
Adventure to the Exchange Agent, until the surrender of such Certificate in
accordance with this Article II. Subject to the effect of applicable escheat or
similar laws, following surrender of any such Certificate there shall be paid to
the holder of whole Adventure Shares issued in exchange therefor, without
interest, (i) at the time of such surrender, the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid with
respect to such whole Adventure Shares and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date after the
Effective Time but prior to such surrender and with a payment date subsequent to
such surrender payable with respect to such whole Adventure Shares.
(d) No
Further Ownership Rights in Trinity Capital Stock. All
certificates evidencing Adventure Shares issued (including any dividends or
other distributions paid pursuant to Section 2.9(c)) shall be deemed to have
been issued and paid in full satisfaction of all rights pertaining to the shares
of Trinity Capital Stock formerly represented by such Certificates. At the close
of business on the day on which the Effective Time occurs, the stock transfer
books of Trinity shall be closed, and there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation of the shares
of Trinity Capital Stock that were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation or the Exchange Agent for transfer or any other reason,
they shall be canceled and exchanged as provided in this Article II.
(e) Fractional
Shares. No
fractional shares of Adventure common stock shall be issued in the Merger. The
aggregate Per Share Merger Consideration to be issued to the holder of a
Certificate previously evidencing Trinity Capital Stock shall be rounded up to
the nearest whole share of Adventure common stock.
(f) Termination
of Exchange of Adventure Shares. Any
portion of the Adventure Shares (and any dividends or distributions thereon)
that remain undistributed to the holders of the Certificates for six months
after the Effective Time shall be delivered to Adventure, upon demand, and any
holders of the Certificates who have not theretofore complied with this Article
II shall thereafter look only to Adventure for, and, subject to Section 2.9(g),
Adventure shall remain liable for payment of their claim for the Per Share
Merger Consideration, certain dividends and other distributions in accordance
with Section 2.9(c).
(g) No
Liability.
Notwithstanding anything to the contrary in this Section 2.9, none of the
Exchange Agent, the Surviving Corporation or any party to this Agreement shall
be liable to a holder of Adventure Shares or Trinity Capital Stock for any
amount properly paid to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(h) Lost,
Stolen or Destroyed Company Certificate. In the
event any Certificates shall have been lost, stolen or destroyed, the Exchange
Agent shall issue in exchange for such lost, stolen or destroyed Certificate,
upon the making of an affidavit and indemnity of that fact by the holder thereof
in a form that is reasonably acceptable to the Exchange Agent, the number of
Adventure Shares as required pursuant to Section 2.6; provided,
however, that
Adventure may, in its reasonably commercial discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed Certificates to deliver a bond in such sum as it may reasonably direct
against any claim that may be made against Adventure or the Exchange Agent with
respect to the Certificates alleged to have been lost, stolen or
destroyed.
2.10 Dissenting
Shares After Payment of Fair Value.
Dissenting
Shares, if any, after payments of fair value in respect thereto have been made
to dissenting Trinity stockholders pursuant to the DGCL, shall be
cancelled.
2.11 Tax
and Accounting Consequences.
It is
intended by the parties hereto that the Merger shall constitute a reorganization
within the meaning of Section 368 of the Code. Each
party has consulted with, and is relying upon, its tax advisors and accountants
with respect to the tax and accounting consequences of the Merger.
Article
III.
REPRESENTATIONS
AND WARRANTIES
OF
ADVENTURE AND THE ADVENTURE SHAREHOLDERS
Adventure
and the Adventure Shareholders hereby jointly and severally represent and
warrant to Trinity as follows (subject in each case to such exceptions as are
set forth or cross-referenced in the attached Adventure Disclosure Schedule in
the labeled section corresponding to the Section of the representation or
warranty to which such exceptions relate):
3.1 Organization
and Qualification.
(a) Adventure
has been duly organized and is validly existing as a corporation in good
standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands, with power and
authority (corporate and other) to own its properties and conduct its business
as currently conducted. Adventure has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each jurisdiction set forth in the Adventure Disclosure Schedule and to
Adventure’s Knowledge, such jurisdictions are the only ones in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than those jurisdictions where the failure to be so
qualified or in good standing would not have a Material Adverse Effect on
Adventure and the Subsidiaries.
(b) Each of
the Subsidiaries has been duly organized and is validly existing as a
corporation under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands, with power
and authority (corporate and other) to own its properties and conduct its
business as currently conducted. Each Subsidiary has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each jurisdiction set forth in the Adventure Disclosure
Schedule and, to the Knowledge of Adventure, such jurisdictions are the only
ones in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified or
in good standing would not have a Material Adverse Effect on Adventure and the
Subsidiaries. All the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, and except as
described in Section 3.1(b) of the Adventure Disclosure Schedule, are fully-paid
and non-assessable, and are owned by Adventure, free and clear of all
Liens.
(c) The
copies of the respective Articles of Incorporation and By-laws of Adventure and
each of the Subsidiaries, as amended to date and delivered to Trinity, are true
and complete copies of these documents as now in effect. The minute books of
Adventure and the Subsidiaries are accurate in all material respects.
| 3.2 |
Subsidiaries. |
Other
than the Subsidiaries, Adventure does not hold any equity interest in any other
Person. Except as described in Section 3.1(b) of the Adventure Disclosure
Schedule, Adventure owns all of the issued and outstanding shares of stock of
the Subsidiaries, free and clear of any Liens.
| 3.3 |
Capitalization. |
(a) As of
immediately prior to the Closing, the authorized capital stock of Adventure
shall consist solely of 40,000,000 common shares, $0.001 par value, and
5,000,000 preferred shares, $0.001 par value, of which 4,500,000 common shares
and no preferred shares will be issued and outstanding. All such common shares
shall be owned solely by the Adventure Shareholders, will be duly authorized,
validly issued and outstanding, fully paid and non-assessable and, will not have
been issued in violation of the preemptive rights of any Person. All of the
shares of V Capital and G Bros. are owned solely by G. Gourdomichalis, S.
Gourdomichalis and Varouxakis, are duly authorized, validly issued and
outstanding, fully paid and non-assessable and, were not issued in violation of
the preemptive rights of any Person.
(b) The
Adventure Shares to be issued upon effectiveness of the Merger and upon exercise
of the Adventure Exchange Securities, when issued in accordance with the terms
of this Agreement, shall be duly authorized, validly issued, fully paid and
non-assessable and free of all Liens.
(c) There are
also 950,000 shares of Adventure which are reserved for issuance upon exercise
of the Adventure options and/or warrants that are outstanding on the date hereof
as set forth in Section 3.3 of the Adventure Disclosure Schedule (the
“Adventure
Options”).
(d) The
authorized capital stock of Adventure Two S.A. as of the date hereof consists
solely of 500 bearer shares of common stock, no par value, all of which shares
are issued and outstanding. All of such shares of common stock that are issued
and outstanding are owned by Adventure, are duly authorized, validly issued and
outstanding, fully paid and non-assessable and were not issued in violation of
the preemptive rights of any Person.
(e) The
authorized capital stock of Adventure Three S.A. as of the date hereof consists
solely of 500 bearer shares of common stock, no par value, all of which shares
are issued and outstanding. All of such shares of common stock that are issued
and outstanding are owned by Adventure, are duly authorized, validly issued and
outstanding, fully paid and non-assessable and were not issued in violation of
the preemptive rights of any Person.
| 3.4 |
Authority;
Non-Contravention; Approvals. |
(a) Adventure
has full corporate power and authority, and the Adventure Shareholders have full
power and authority, to enter into this Agreement and to consummate the
transactions contemplated hereby. Adventure’s execution and delivery of this
Agreement, and its consummation of the transactions contemplated hereby, have
been duly authorized by its board of directors and no other corporate
proceedings on its part are necessary to authorize its execution and delivery of
this Agreement and its consummation of the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Adventure and
the Adventure Stockholders, and constitutes its and their valid and binding
agreement, enforceable against them in accordance with its terms, except that
such enforcement may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to enforcement of
creditors’ rights generally and (ii) general equitable principles ((i) and (ii)
the “Enforceability
Exception”).
(b) All
material consents, approvals, authorizations, orders, licenses, registrations,
clearances and qualifications of or with any Governmental Authority having
jurisdiction over Adventure or the Subsidiaries or any of their properties
required for the execution and delivery by Adventure and the Adventure
Stockholders of this Agreement to be duly and validly authorized have been
obtained or made and are in full force and effect.
(c) Neither
Adventure nor any of the Subsidiaries (i) is in violation of its respective
Articles of Incorporation or By-laws or (ii) is, or with the giving of notice or
lapse of time or both would be, in violation of or in default under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Adventure or any of the Subsidiaries is a party or by which
it or any of them or any of their respective properties is bound, except for
violations and defaults of the kind referred to in clause (ii) which
individually or in the aggregate are not material to Adventure and the
Subsidiaries taken as a whole. The performance by Adventure and the Adventure
Stockholders of their obligations under this Agreement and the consummation of
the transactions contemplated herein will not conflict with its Articles of
Incorporation or By-laws or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Adventure or any of the
Subsidiaries is a party or by which Adventure or any of the Subsidiaries is
bound or to which any of the property or assets of Adventure or any of the
Subsidiaries is subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-laws of Adventure, as
amended, or any of the Subsidiaries or any applicable Law or any Order, rule or
regulation of any Governmental Authority having jurisdiction over Adventure, any
of the Subsidiaries or any of their respective properties. No consent, approval,
authorization, order, license, registration or qualification of or with any such
Governmental Authority is required for the consummation by Adventure or the
Adventure Shareholders of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications (i) as have been obtained, or (ii) which individually or in
the aggregate are not material to Adventure and the Subsidiaries taken as a
whole.
| 3.5 |
Contracts;
No Default. |
(a) Section
3.5(a) of the Adventure Disclosure Schedule contains a true and complete list of
all contracts, agreements, commitments and other instruments (whether oral or
written) to which Adventure or any of the Subsidiaries is a party that (i)
involve a receipt or an expenditure by Adventure or any of the Subsidiaries or
require the performance of services or delivery of goods to, by, through, on
behalf of or for the benefit of Adventure or any of the Subsidiaries, which in
each case, relates to a contract, agreement, commitment or instrument that
either (A) requires payments or receipts in excess of $50,000 per year or (B) is
not terminable by Adventure or any of the Subsidiaries on notice of thirty (30)
days or less without penalty or Adventure or any of the Subsidiaries being
liable for damages of $50,000 or more, or (ii) involve an obligation for the
performance of services or delivery of goods by Adventure or any of the
Subsidiaries that cannot, or in reasonable probability will not, be performed
within one year from the date hereof.
(b) All of
the contracts, agreements, commitments and other instruments described in
Section 3.5(a) of the Adventure Disclosure Schedule (individually, a
“Contract” and
collectively, the “Contracts”) are
valid and binding upon Adventure or the Subsidiaries, as applicable, and to the
Knowledge of Adventure, the other parties thereto, and are in full force and
effect and enforceable in accordance with their terms, subject to the
Enforceability Exception, and neither Adventure nor the Subsidiaries, nor to the
Knowledge of Adventure, any other party to any Contract, has materially breached
any provision of, nor has any event occurred which, with the lapse of time or
action by a third party, could result in a material default under, the terms
thereof. None of the Adventure Shareholders has received any payment in
violation of law from any contracting party in connection with or as an
inducement for causing Adventure or any of the Subsidiaries to enter into any
Contract.
| 3.6 |
Litigation. |
Except as
set forth in Section 3.6 of the Adventure Disclosure Schedule, there are no
outstanding Orders, and no legal or governmental investigations, actions, suits
or proceedings pending or, to the Knowledge of Adventure and the Adventure
Shareholders, threatened against or affecting Adventure or any of the
Subsidiaries or any of their respective properties or to which Adventure or any
of the Subsidiaries is or may be a party or to which any property of Adventure
or any of the Subsidiaries is or may be the subject which, if determined
adversely to Adventure or any of the Subsidiaries could individually or in the
aggregate have or reasonably be expected to have, a Material Adverse Effect on
Adventure and the Subsidiaries taken as a whole, and, to the best of the
Knowledge of Adventure and the Adventure Shareholders, no such proceedings are
threatened or contemplated by any Governmental Authorities or threatened by
others.
| 3.7 |
Taxes.
|
(a) Adventure
and the Subsidiaries have duly filed with the appropriate Governmental
Authorities all material franchise, income and all other material Tax Returns
other than Tax Returns the failure to file of which would have no Material
Adverse Effect on Adventure or the Subsidiaries. All such Tax Returns were, when
filed, and are accurate and complete in all material respects and were prepared
in conformity with applicable Laws. Adventure and the Subsidiaries have paid or
will pay in full or have adequately reserved against all Taxes otherwise
assessed against it through the Closing Date. Neither Adventure nor any
Subsidiary is a party to any pending action or proceeding by any Governmental
Authority for the assessment of any Tax, and no claim for assessment or
collection of any Tax has been asserted in writing against Adventure of any of
the Subsidiaries that has not been paid. There are no Liens for Taxes upon the
assets of Adventure or any of the Subsidiaries (other than Liens for Taxes not
yet due and payable). There is no valid basis, to the Knowledge of Adventure,
for any assessment, deficiency, notice, 30-day letter or similar intention to
assess any Tax to be issued to Adventure or any of the Subsidiaries by any
Governmental Authority.
(b) No stamp
or other issuance or transfer taxes or duties and no capital gains, income,
withholding or other Taxes are payable by or on behalf of Trinity to the
▇▇▇▇▇▇▇▇ Islands or Greece or any political subdivision or Taxing Authority
thereof or therein in connection with the issuance of the Adventure Shares to
the Trinity stockholders, the issuance of the Adventure Exchange Securities or
the delivery by the Trinity stockholders of the Trinity Capital Stock or the
delivery of the Trinity Warrants and Trinity Options by the holders
thereof.
| 3.8 |
No
Violation of Law. |
(a) Neither
Adventure nor any Subsidiary is in violation of or has been given notice or been
charged with any violation of, any Law or Order (including, without limitation,
any applicable environmental law, ordinance or regulation) of any Governmental
Authority, except for violations which, in the aggregate, do not have, and would
not reasonably be expected to have, a Material Adverse Effect on Adventure.
Neither Adventure nor any Subsidiary has received any written notice that any
investigation or review with respect to it by any Governmental Authority is
pending or threatened, other than, in each case, those the outcome of which, as
far as reasonably can be foreseen, would not reasonably be expected to have a
Material Adverse Effect on Adventure.
(b) Each of
Adventure and the Subsidiaries owns, possesses or has obtained, all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all Governmental
Authorities, all self-regulatory organizations and all courts and other
tribunals, necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date hereof,
other than such licenses, permits, certificates, consents, orders, approvals,
other authorizations, declarations and filings which individually or in the
aggregate are not material to Adventure and the Subsidiaries taken as a whole,
and neither Adventure nor any such Subsidiary has received any actual notice of
any proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization, and each
of Adventure and the Subsidiaries is in compliance with all Laws relating to the
conduct of its business as conducted as of the date hereof other than any
failure to so comply that would not have a Material Adverse Effect on
Adventure.
(c) Adventure
and the Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, provincial, state and local Laws, including any applicable
regulations and standards adopted by the International Maritime Organization,
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, petroleum pollutants or contaminants
(“Environmental
Laws”),
(ii) have received all permits, licenses, other approvals, authorizations
and certificates of financial responsibility required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not, have
a Material Adverse Effect on Adventure.
(d) None of
the transactions contemplated herein will violate any Foreign Assets Control
Regulations of the United States contained in Title 31, Code of Federal
Regulations, Parts 500, 505, 515 and 535.
| 3.9 |
Properties. |
(a) Except as
provided herein, Adventure and the Subsidiaries have good and marketable title
to all of the assets and properties which they purport to own as reflected on
the most recent balance sheet comprising a portion of the Adventure Financial
Statements, or thereafter acquired (except assets and properties sold or
otherwise disposed of since the date of such balance sheet in the ordinary
course of business). Adventure and the Subsidiaries have a valid leasehold
interest in all properties of which it is the lessee and each such lease is
valid, binding and enforceable against it, and, to the Knowledge of Adventure,
the other parties thereto in accordance with its terms, subject to the
Enforceability Exception. Neither Adventure, the Subsidiaries nor, to
Adventure’s Knowledge, the other parties thereto are in default in the
performance of any material provision thereunder. Neither the whole nor any
material portion of the assets of Adventure or the Subsidiaries is subject to
any Order to be sold or is being condemned, expropriated or otherwise taken by
any public authority with or without payment of compensation therefor, nor, to
Adventure’s Knowledge, has any such condemnation, expropriation or taking been
proposed. None of the material assets of Adventure or the Subsidiaries is
subject to any restriction which would have a Material Adverse Effect on
Adventure.
(b) Except as
set forth in Section 3.9(b) of the Adventure Disclosure Schedule,
(1) Adventure
Two S.A. is the sole owner of the vessel known as the “Free Destiny” (the
"Free
Destiny"), free
and clear of all Liens. The Free Destiny, (i) is a diesel motor vessel having
25,321 deadweight tons, 16,282 gross tons, official number 2077 built in
Bulgaria, in 1982, (ii) has been documented in the name of Adventure Two
S.A. under the name “Free Destiny” pursuant to the laws of the Republic of The
▇▇▇▇▇▇▇▇ Islands, with its port of documentation at Majuro, ▇▇▇▇▇▇▇▇ Islands,
(iii) has been classified LRS + 100 A1 Bulkcarrier Class 3 in Lloyds
Register of Shipping and, as of the date hereof, is in class without
recommendation; and (iv) is covered by hull and machinery, war risk and
protection and indemnity insurance; and
(2) Adventure
Three S.A. is the sole owner of the vessel known as the “Free Envoy” (the
"Free
Envoy" and
collectively with the Free Destiny, the "Vessels"), free
and clear of all Liens. The Free Envoy, (i) is a diesel motor vessel having
26,318 deadweight tons, 15,715 gross tons, official number 2161 built in Japan,
in 1984, (ii) has been documented in the name of Adventure Three S.A. under
the name “Free Envoy” pursuant to the laws of the Republic of The ▇▇▇▇▇▇▇▇
Islands, with its port of documentation at Majuro, ▇▇▇▇▇▇▇▇ Islands,
(iii) has been classified KRSI Bulkcarrier ESP (HC) in the Korean Register
of Shipping and, as of the date hereof, is in class without recommendation; and
(iv) is covered by hull and machinery, war risk and protection and
indemnity insurance.
(c) The
material equipment, fixtures and other personal property of Adventure and the
Subsidiaries are in good operating condition and repair (ordinary wear and tear
excepted) for the conduct of its business as presently being conducted, except
where the failure to be in such condition or repair would not have a Material
Adverse Effect on Adventure.
| 3.10 |
Proxy
Statement. |
None of
the information to be supplied by Adventure or the Adventure Shareholders for
inclusion in the Proxy Statement, or in any amendments or supplements thereto,
to be distributed by to the stockholders of Trinity in connection with the
meeting of such stockholders (the “Trinity
Special Meeting”) to
vote upon this Agreement and the transactions contemplated hereby, will, at the
time of the mailing of the Proxy Statement and at the time of the Trinity
Special Meeting contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading.
| 3.11 |
Labor
Matters. |
Neither
Adventure nor any Subsidiary is a party to any union contract or other
collective bargaining agreement. Adventure and the Subsidiaries are in
compliance in all material respects with all applicable Laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and Adventure and the Subsidiaries are not engaged in any
unfair labor practice. There is no labor strike, slowdown or stoppage pending
(or, to the Knowledge of Adventure, any labor strike or stoppage threatened)
against or affecting Adventure or the Subsidiaries. No petition for
certification has been filed and is pending before any Governmental Authority
with respect to any employees of Adventure or the Subsidiaries who are not
currently organized.
| 3.12 |
Employees. |
To
Adventure’s knowledge, no key employee or group of employees has any plans to
terminate employment with Adventure or any of the Subsidiaries.
| 3.13 |
Financial
Statements. |
Adventure
has provided Trinity with a draft of the audited consolidated balance sheet as
of December 31, 2004 and related audited consolidated statements of income, cash
flows and stockholders’ equity of Adventure and the Subsidiaries for the period
April 23, 2004 (inception) through December 31, 2004 (collectively, the
“Adventure
Financial Statements”). The
Adventure Financial Statements present fairly, in all material respects, the
consolidated financial position and results of operations of Adventure and the
Subsidiaries as of the dates, period and year indicated, prepared in accordance
with GAAP, and to the Knowledge of Adventure, in accordance with Regulation S-X,
promulgated by the SEC, and, in particular, Rules 1-02 and 3-05 thereunder.
Without limiting the generality of the foregoing, (i) as of the date of the
consolidated balance sheet comprising a portion of the Adventure Financial
Statements, there was no material debt, liability or obligation of any nature
not reflected or reserved against in the Adventure Financial Statements or in
the notes thereto required to be so reflected or reserved in accordance with
GAAP, and (ii) there are no assets of Adventure or the Subsidiaries, the value
of which (in the reasonable judgment of Adventure) is materially overstated in
the Adventure Financial Statements. Except as disclosed therein or in Section
3.13 of the Adventure Disclosure Schedule or as incurred in the ordinary course
of business since December 31, 2004, Adventure has no known material contingent
liabilities (including liabilities for Taxes) other than as contemplated
hereunder or in connection herewith. Adventure is not a party to any contract or
agreement for the forward purchase or sale of any foreign currency and has not
invested in any “derivatives.” There will not be any material adverse change to
Adventure’s final audited consolidated balance sheet as of December 31, 2004 and
related audited consolidated statements of income, cash flows and stockholders’
equity of Adventure and the Subsidiaries for the period April 23, 2004
(inception) through December 31, 2004 (the “Final
Statements”).
Adventure shall provide Trinity with true, correct and complete copies of the
Final Statements as soon as they have been prepared.
3.14 Absence
of Certain Changes or Events.
Except as
set forth in Section 3.14 of the Adventure Disclosure Schedule or in connection
with this Agreement and the transactions contemplated hereby, since December 31,
2004 there has not been:
(a) any
material adverse change in the financial condition, operations, properties,
assets, liabilities or business of Adventure;
(b) any
material damage, destruction or loss of any material properties of Adventure and
the Subsidiaries, whether or not covered by insurance, which would have a
Material Adverse Effect on Adventure;
(c) any
material change in the manner in which the business of the Company has been
conducted, which would have a Material Adverse Effect on Adventure;
(d) any
material change in the treatment and protection of trade secrets or other
confidential information of Adventure and the Subsidiaries, which would have a
Material Adverse Effect on Adventure; and
(e) any
occurrence not included in paragraphs (a) through (d) of this Section 3.14 which
has resulted, or which Adventure has reason to believe, could reasonably be
expected to result, in a Material Adverse Effect on Adventure.
| 3.15 |
Intellectual
Property; Software. |
(a) Section
3.15(a) of the Adventure Disclosure Schedule sets forth a complete and correct
list in all material respects of all patents, Trademarks, copyright
registrations, and applications therefor, applicable to or used in the business
of Adventure and the Subsidiaries, together with a complete list of all licenses
granted by or to Adventure and the Subsidiaries with respect to any of the above
(collectively, “Adventure
Intellectual Property”). To
Adventure’s Knowledge, all Adventure Intellectual Property is owned by Adventure
or one of the Subsidiaries, free and clear of all Liens, except where the
failure to own or use such Adventure Intellectual Property would not have a
Material Adverse Effect on Adventure, or is used by Adventure or one of the
Subsidiaries pursuant to valid licenses. To Adventure’s Knowledge, neither
Adventure nor any of the Subsidiaries is currently in receipt of any notice of
any violation or infringement of, and neither Adventure nor any of the
Subsidiaries is knowingly violating or infringing in any material respect, the
rights of others in, or to any patent, unpatented invention, trademark,
tradename, service ▇▇▇▇, copyright, trade secret, know-how, design, process or
other intangible asset.
(b) (i) Except
as set forth on Schedule 3.15(b)(i) of the Adventure Disclosure Schedule,
Adventure or one of the Subsidiaries has title to all material computer software
owned by Adventure or one of the Subsidiaries (other than “off-the-shelf”
software not customized for its use (“Owned
Software”)) free
and clear of all Liens. Except as set forth in Section 3.15(b)(i) or
(ii) of the Adventure Disclosure Schedule, the Owned Software is not
dependent on any Licensed Software in order to operate fully in the manner in
which it is intended. The source code of any Owned Software has not been
published or knowingly disclosed to any other parties, except pursuant to
contracts requiring such other parties to keep the source code of any Owned
Software confidential.
(ii)
Section 3.15(b)(ii) of the Adventure Disclosure Schedule sets forth a list of
the agreements which require the payment of license fees, rents, royalties or
other charges by Adventure or the Subsidiaries with respect to all material
software (other than “off-the-shelf” software that has not been customized for
its use) under which Adventure or a Subsidiary is a licensee, lessee or
otherwise has obtained the right to use (the “Licensed
Software”).
Adventure or a Subsidiary, as applicable, has the right and license to use,
sublicense, modify and copy Licensed Software, free and clear of any limitations
or encumbrances, except as may be set forth in Section 3.15(b)(ii) of the
Adventure Disclosure Schedule or in the agreements referenced therein. Adventure
and the Subsidiaries are in material compliance with all provisions of each
license, lease or other similar agreement pursuant to which it has rights to use
the Licensed Software. Except as disclosed on Section 3.15(b)(ii) of the
Adventure Disclosure Schedule, none of the Licensed Software has been
incorporated into or made a part of any Owned Software or any other Licensed
Software. Neither Adventure nor any Subsidiary has published or knowingly
disclosed any Licensed Software to any other party except, in the case of
Licensed Software which it leases or markets to others, in accordance with and
as permitted by any license, lease or similar agreement relating to the Licensed
Software and except pursuant to contracts requiring such other parties to keep
the Licensed Software confidential. As of the date hereof, to the Adventure’s
knowledge, no party to whom Adventure or a Subsidiary has disclosed Licensed
Software has breached such obligation of confidentiality.
(iii) The
Owned Software and Licensed Software constitute all software used in the
business of Adventure (collectively, the “Adventure
Software”). To
the best of Adventure’s Knowledge, the transactions contemplated herein will not
cause a breach or default under any license, lease or similar agreement relating
to Adventure Software or impair the ability of Trinity and Adventure to use
Adventure Software subsequent to the Effective Time in the same manner as
Adventure Software is currently used by Adventure. Adventure is not knowingly
infringing in any material respect any intellectual property rights of any other
person or entity with respect to Adventure Software, and, except as set forth in
Section 3.15(b)(iii) of the Adventure Disclosure Schedule, to Adventure’s
Knowledge, no other person or entity is infringing any intellectual property
rights of Adventure with respect to the Adventure Software.
| 3.16 |
Business
Locations. |
Except as
set forth in Section 3.16 of the Adventure Disclosure Schedule, neither
Adventure nor the Subsidiaries own or lease real property in any state or
country. Neither Adventure nor any Subsidiary has any executive offices or
places of business except as otherwise set forth on the Adventure Disclosure
Schedule.
| 3.17 |
Compensation
of Directors, Officers and Employees. |
Section
3.17 of the Adventure Disclosure Schedule contains a true and complete list
showing (a) the names of all directors and officers of Adventure and (b) the
names of all salaried persons whose aggregate compensation for purposes of Tax
reporting from Adventure in the fiscal year ended December 31, 2004 was, or in
the year ending December 31, 2005 is expected to be $50,000 or more per
year.
| 3.18 |
Dividends
and Distributions. |
All
dividends and other distributions declared and payable on the shares of capital
stock of the Subsidiaries may under the current Laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands be paid in United States dollars and may be freely transferred
out of the ▇▇▇▇▇▇▇▇ Islands and all such dividends and other distributions are
not subject to withholding or other taxes under the current laws and regulations
of the Republic of the ▇▇▇▇▇▇▇▇ Islands and are otherwise free and clear of any
other Tax, withholding or deduction in, and without the necessity of obtaining
any consents, approvals, authorizations, orders, licenses, registrations,
clearances and qualifications of or with any Governmental Authority in, the
Republic of the ▇▇▇▇▇▇▇▇ Islands.
| 3.19 |
Related
Transactions. |
Except as
set forth in Section 3.19 of the Adventure Disclosure Schedule, no relationship,
direct or indirect, exists between or among Adventure or either of the
Subsidiaries on the one hand, and the directors, officers, shareholders,
customers or suppliers of Adventure or either of the Subsidiaries on the other
hand. Since the date of its incorporation, Adventure has not, directly or
indirectly, including through any Subsidiary, extended or maintained credit, or
arranged for the extension of credit, or renewed or amended any extension of
credit, in the form of a personal loan to or for any of its directors or
executive officers.
| 3.20 |
Investment
Company. |
Adventure
is not an “investment company’ or an entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company Act of
1940.
| 3.21 |
Passive
Foreign Investment Company. |
To
Adventure’s best Knowledge, it does not believe it is a Passive Foreign
Investment Company (“PFIC”) within
the meaning of Section 1296 of the Code, and does not believe it is likely to
become a PFIC.
| 3.22 |
Insurance. |
Adventure
and each of the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary and in accordance with standard industry practice in the businesses in
which they are engaged. Neither Adventure nor any such Subsidiary has received
any notice from any insurance company that any insurance policy has been
canceled or that such insurance company intends to cancel any such policy.
Neither Adventure nor any such Subsidiary has reason to believe that Adventure
and each Subsidiary will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business. As soon as practicable
following the execution of this Agreement, Adventure will supplement the
Adventure Disclosure Schedule setting forth each type of insurance maintained by
Adventure, and with respect to each such insurance, the name of the insurer, the
amount of coverage, the amount of premiums and the expiration date of each
insurance policy.
| 3.23 |
Funds. |
Neither
Adventure nor any of the Subsidiaries, nor any director, shareholder, officer,
agent, employee or other person associated with or acting on behalf of Adventure
or any of the Subsidiaries, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds, violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977;
or made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
| 3.24 |
Disclosure
Controls. |
Adventure
has established and maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15 under the Exchange Act), which (i) are designed to
ensure that material information relating to Adventure, including the
Subsidiaries, is made known to Adventure’s principal executive officer and its
principal financial officer by others within those entities, particularly during
the preparation of the Proxy Statement; (ii) have been evaluated for
effectiveness as of the date of this Agreement; and (iii) are effective in all
material respects to perform the functions for which they were
established.
| 3.25 |
Absence
of Material Weaknesses. |
Based on
the evaluation of its internal controls over financial reporting, Adventure is
not aware of (i) any significant deficiency or material weakness in the design
or operation of internal controls over financial reporting which are reasonably
likely to adversely affect Adventur’'s ability to record, process, summarize and
report financial information; or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
internal controls over financial reporting.
| 3.26 |
Books,
Records and Accounts. |
Adventure’s
books, records and accounts fairly and accurately reflect in all material
respects transactions and dispositions of assets by Adventure and the
Subsidiaries, and to the Knowledge of Adventure, the system of internal
accounting controls of Adventure is sufficient to assure that: (a) transactions
are executed in accordance with management’s authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP, and to maintain accountability for assets; (c) access to
assets is permitted only in accordance with management’s authorization; and (d)
the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
| 3.27 |
Brokers
and Finders. |
Except
for Poseidon Capital Corp., Adventure has not employed any investment banker,
broker, finder, consultant or intermediary in connection with the transactions
contemplated by this Agreement which would be entitled to any investment
banking, brokerage, finder’s or similar fee or commission in connection with
this Agreement or the transactions contemplated hereby.
| 3.28 |
Acquisition
of Shares in Adventure. |
Each
Adventure Shareholder is an “accredited investor,” within the meaning of Rule
501(a) of Regulation D, promulgated under the Securities Act. Each Adventure
Shareholder acquired his shares in Adventure in a transaction exempt from the
registration requirements of the Securities Act. Each Adventure Shareholder
acknowledges and agrees that for so long as is required by applicable United
States Law, a legend shall be placed on each certificate of shares, instrument
or document evidencing any of the shares owned by such Adventure Shareholder
substantially in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
Notwithstanding
anything to the contrary contained herein, the Adventure Shareholders and their
respective Affiliates may, collectively and, among them as they shall mutually
agree, pledge or hypothecate up to an aggregate of 750,000 of their shares in
Adventure to banks or other financial institutions to collateralize bona fide
personal borrowings.
| 3.29 |
No
Omissions or Untrue
Statements. |
No
representation or warranty made by Adventure or the Adventure Shareholders to
Trinity in this Agreement, the Adventure Disclosure Schedule or in any
certificate of an Adventure Shareholder or an Adventure officer required to be
delivered to Trinity pursuant to the terms of this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein in
light of the circumstances in which made not misleading as of the date hereof
and as of the Closing Date.
Article
IV.
REPRESENTATIONS AND WARRANTIES OF TRINITY
REPRESENTATIONS AND WARRANTIES OF TRINITY
Trinity
hereby represents and warrants to Adventure and the Adventure Shareholders as
follows (subject in each case to such exceptions as are set forth or
cross-referenced in the attached Trinity Disclosure Schedule in the labeled
section corresponding to the Section of the representation or warranty to which
such exceptions relate):
4.1 Organization
and Qualification.
Trinity
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware. Trinity has all requisite corporate power to
carry on its business as it is now being conducted and is duly qualified to do
business as a foreign corporation and is in good standing in all jurisdictions
set forth in Section 4.1 of the Trinity Disclosure Schedule, and to Trinity’s
Knowledge, such jurisdictions are the only ones in which the properties owned,
leased or operated by Trinity or the nature of the business conducted by Trinity
makes such qualification necessary, except where the failure to qualify
(individually or in the aggregate) will not have any Material Adverse Effect on
Trinity. The copies of the Certificate of Incorporation and By-laws of Trinity,
as amended to date and delivered to the Adventure Shareholders, are true and
complete copies of these documents as now in effect. The minute books of Trinity
are accurate in all material respects.
| 4.2 |
Capitalization. |
The
authorized capital stock of Trinity as of the date hereof consists of 20,000,000
shares of common stock, $0.0001 par value per share (the “Trinity
Common Stock”), of
which 287,600 shares are issued and outstanding; 2,000,000 shares of Class B
common stock, $0.0001 par value per share (the “Trinity
Class B Common Stock”), of
which 1,495,000 shares are issued and outstanding; and 5,000 shares of preferred
shares, $0.0001 par value, none of which are outstanding. In addition, Trinity
has reserved 280,000 shares of Trinity Common Stock and 130,000 shares of
Trinity Class B Common Stock for issuance pursuant to the exercise of an option
(the “Trinity
Option”) sold
to the representative of the underwriters in Trinity’s initial public offering.
Furthermore, there are authorized, issued and outstanding 1,828,750 Class W
Warrants (the “Trinity
Class W Warrants”) and
1,828,750 Class Z Common Stock Purchase Warrants (the “Trinity
Class Z Warrants” and,
collectively with the Trinity Class W Warrants, the “Trinity
Warrants”)
providing for the issuance, upon exercise, of a like number of shares of Trinity
Common Stock. The Trinity Class W Warrants and the Trinity Class Z Warrants are
each exercisable at $5.00 per share and are each callable for redemption by
Trinity upon the occurrence of certain events specified therein. All of the
outstanding securities of Trinity are duly authorized, validly issued, fully
paid and non-assessable, and were not issued in violation of the preemptive
rights of any Person. All of the outstanding securities of Trinity, including
the Trinity Common Stock, the Trinity Class B Common Stock and the Trinity
Warrants, were issued in compliance with all applicable securities laws. No
shares of capital stock are held in the treasury of Trinity. Other than as
stated in this Section 4.2, there are no outstanding subscriptions,
options, warrants, calls or rights of any kind issued or granted by, or binding
upon Trinity, to purchase or otherwise acquire any shares of capital stock of
Trinity or other securities of Trinity. Except as stated in this
Section 4.2, there are no outstanding securities convertible or
exchangeable, actually or contingently, into shares of Trinity Common Stock or
other securities of Trinity. At the Effective Time, Trinity shall have
approximately $7,350,000 but not less than $7,000,000 in cash or cash
equivalents after giving effect to (a) the payment or accrual on or prior to the
Effective Time of all expenses incurred by Trinity, including, but not limited
to, the fees and expenses of Trinity’s attorneys, accountants and investment
bankers (including HCFP/▇▇▇▇▇▇▇ Securities) LLC, and (b) any payments to be made
to dissenting Trinity stockholders, in connection with the transactions
contemplated by this Agreement.
| 4.3 |
Subsidiaries. |
Trinity
has no subsidiaries. Trinity does not hold any equity interest in any other
Person.
| 4.4 |
Authority;
Non-Contravention; Approvals. |
(a) Trinity
has full corporate power and authority to enter into this Agreement and, subject
to the Trinity Stockholders’ Approval, to consummate the transactions
contemplated hereby. Trinity’s execution and delivery of this Agreement, and its
consummation of the transactions contemplated hereby, have been duly authorized
by its board of directors and no other corporate proceedings on its part are
necessary to authorize its execution and delivery of this Agreement and its
consummation of the transactions contemplated hereby, except for the Trinity
Stockholders’ Approval which will be solicited in accordance with Section 6.2
hereof. This Agreement has been duly and validly executed and delivered by
Trinity, and constitutes its valid and binding agreement, enforceable against it
in accordance with its terms, except that such enforcement may be subject to the
Enforceability Exception.
(b) Trinity’s
execution and delivery of this Agreement does not, and its consummation of the
transactions contemplated hereby will not, violate, conflict with or result in a
breach of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result in
the termination of, or accelerate the performance required by, or result in a
right of termination or acceleration under, or result in the creation of any
Lien upon any of its properties or assets under any of the terms, conditions or
provisions of (i) its Certificate of Incorporation or By-laws, (ii) subject to
obtaining the Trinity Stockholders’ Approval, any Law or Order, injunction,
writ, permit or license of any Governmental Authority applicable to it or any of
its properties or assets, or (iii) any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which it is now a party or by
which it or any of its properties or assets may be bound, excluding from the
foregoing clauses (ii) and (iii), such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of liens, security interests,
charges or encumbrances that do not, in the aggregate, have a Material Adverse
Effect on Trinity.
(c) Except
for the filing and clearance of preliminary proxy materials with the SEC
pursuant to the Exchange Act, no declaration, filing or registration with, or
notice to, or authorization, consent or approval of, any governmental or
regulatory body or authority is necessary for Trinity’s execution and delivery
of this Agreement or its consummation of the transactions contemplated hereby,
other than such declarations, filings, registrations, notices, authorizations,
consents or approvals which, if not made or obtained, as the case may be, would
not, in the aggregate, have a Material Adverse Effect on Trinity.
| 4.5 |
Contracts
Listed; No Default. |
All
material contracts, agreements, licenses, leases, easements, permits, rights of
way, commitments and understandings, written or oral, connected with or relating
in any respect to the present or future operations of Trinity are, with the
exception of this Agreement and the transactions contemplated hereby, described
in Trinity’s SEC Reports and listed as exhibits thereto (the “Trinity
Contracts”). The
Trinity Contracts are valid and binding upon Trinity, and to Trinity’s
Knowledge, the other parties thereto, and are in full force and effect and
enforceable in accordance with their terms, subject to the Enforceability
Exception and neither Trinity, nor to Trinity’s Knowledge, any other party to
any Trinity Contract, has materially breached any provision of, nor has any
event occurred which, with the lapse of time or action by a third party, could
result in a material default under, the terms thereof. To the Knowledge of
Trinity, no stockholder of Trinity has received any payment in violation of law
from any contracting party in connection with or as an inducement for causing
Trinity to enter into any Trinity Contract.
4.6 Litigation.
There is
no (i) claim, action, suit or proceeding pending or, to Trinity’s Knowledge,
threatened against or directly relating to Trinity before any Governmental
Authority, or (ii) outstanding Order, or application, request or motion
therefor, of any Governmental Authority in a proceeding to which Trinity or any
of its assets was or is a party except, in the case of clauses (i) and (ii)
above, such as would not, individually or in the aggregate, either materially
impair or preclude Trinity’s ability to consummate the Merger or the other
transactions contemplated hereby or have a Material Adverse Effect on
Trinity.
4.7 Taxes.
Trinity
has duly filed with the appropriate Governmental Authorities all Tax Returns
required to be filed by it other than Tax Returns which the failure to file
would have no Material Adverse Effect on Trinity. All such Tax Returns were,
when filed, and are accurate and complete in all material respects and were
prepared in conformity with applicable laws and regulations. Trinity has paid or
will pay in full or has adequately reserved against all Taxes otherwise assessed
against it through the Closing Date. Trinity is not a party to any pending
action or proceeding by any Governmental Authority for the assessment of any
Tax, and no claim for assessment or collection of any Tax has been asserted
against Trinity that has not been paid. There are no Tax Liens upon the assets
of Trinity (other than Liens for Taxes not yet due and payable). There is no
valid basis, to Trinity’s Knowledge, for any assessment, deficiency, notice,
30-day letter or similar intention to assess any Tax to be issued to Trinity by
any Governmental Authority.
| 4.8 |
Employee
Plans. |
Trinity
has no employee benefit plans as defined in Section 3(3) of ERISA nor any
employment agreements.
4.9 No
Violation of Law.
Trinity
is not in violation of and has not been given notice or been charged with any
violation of, any Law, or Order, (including, without limitation, any applicable
environmental law, ordinance or regulation) of any Governmental Authority,
except for violations which, in the aggregate, do not have, and would not
reasonably be expected to have, a Material Adverse Effect on Trinity. Trinity
has not received any written notice that any investigation or review with
respect to it by any Governmental Authority is pending or threatened, other
than, in each case, those the outcome of which, as far as reasonably can be
foreseen, would not reasonably be expected to have a Material Adverse Effect on
Trinity. Trinity has all permits, licenses, franchises, variances, exemptions,
orders and other governmental authorizations, consents and approvals necessary
to conduct its business as presently conducted, except for those, the absence of
which, alone or in the aggregate, would not have a Material Adverse Effect on
Trinity (collectively, the “Trinity
Permits”).
Trinity (a) has duly and timely filed all reports and other information required
to be filed with any Governmental Authority in connection with the Trinity
Permits, and (b) is not in violation of the terms of any of the Trinity Permits,
except for such omissions or delays in filings, reports or violations which,
alone or in the aggregate, would not have a Material Adverse Effect on Trinity.
Section 4.9 of the Trinity Disclosure Schedule contains a list of the Trinity
Permits.
4.10 Properties.
Trinity
has good and marketable title to all of the assets and properties which it
purports to own as reflected on the most recent balance sheet comprising a
portion of the Trinity Financial Statements or thereafter acquired (except
assets and properties sold or otherwise disposed of since the date of such
balance sheet in the ordinary course of business). Trinity has a valid leasehold
interest in all properties of which it is the lessee and each such lease is
valid, binding and enforceable against Trinity, and, to the knowledge of
Trinity, the other parties thereto in accordance with its terms, subject to the
Enforceability Exception. Neither Trinity nor, to Trinity’s Knowledge, the other
parties thereto are in default in the performance of any material provision
thereunder. Neither the whole nor any material portion of the assets of Trinity
is subject to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any public authority with or without payment
of compensation therefor, nor, to the Knowledge of Trinity, has any such
condemnation, expropriation or taking been proposed. None of the material assets
of Trinity is subject to any restriction which would prevent continuation of the
use currently made thereof or materially adversely affect the value
thereof.
4.11 Proxy
Statement.
None of
the information to be supplied by Trinity for inclusion in the Proxy Statement
or in any amendments thereof or supplements thereto, at the time of the mailing
of the Proxy Statement and at the time of the Trinity Special Meeting contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
4.12 Business.
Trinity,
since its formation, has engaged in no business other than to seek to serve as a
vehicle for the acquisition of an operating business, and, except for this
Agreement, is not a party to any contract or agreement for the acquisition of an
operating business. Trinity has no employees.
4.13 Financial
Statements.
The
financial statements of Trinity (collectively, the “Trinity
Financial Statements”)
included in Trinity’s SEC Reports present fairly, in all material respects, the
financial position and results of operations of Trinity as of the respective
dates, years and periods indicated, prepared in accordance with GAAP, applied on
a consistent basis, and to the Knowledge of Trinity, in accordance with
Regulation S-X of the SEC and, in particular, Rules 1-02 and 3-05 thereunder
(subject, in the case of unaudited interim period financial statements, to
normal and recurring year-end adjustments which, individually or collectively,
are not material to Trinity). Without limiting the generality of the foregoing,
(i) there is no basis for any assertion against Trinity as of the date of the
most recent balance sheet comprising a portion of the Trinity Financial
Statements of any material debt, liability or obligation of any nature not fully
reflected or reserved against in the Trinity Financial Statements or in the
notes thereto required to be so reflected or reserved in accordance with GAAP;
and (ii) there are no assets of Trinity, the value of which (in the reasonable
judgment of Trinity) is materially overstated in the Trinity Financial
Statements. Except as disclosed therein or as incurred in the ordinary course of
business since December 31, 2004, Trinity has no known material contingent
liabilities (including liabilities for Taxes). Trinity is not a party to any
contract or agreement for the forward purchase or sale of any foreign currency
and has not invested in any “derivatives.”
4.14 Trinity’s
SEC Reports.
The
Trinity Common Stock has been registered under Section 12 of the Exchange Act on
Form 8-A. Since its inception, Trinity has filed all reports, registration
statements and other documents, together with any amendments thereto, required
to be filed under the Securities Act and the Exchange Act, including but not
limited to reports on Form 10-K and Form 10-Q, and Trinity will file all such
reports, registration statements and other documents required to be filed by it
from the date of this Agreement to the Closing Date (all such reports,
registration statements and documents, including its Form 8-A, filed or to be
filed with the SEC, including Trinity’s initial registration statement relating
to the Trinity Common Stock, and the Trinity Warrants, with the exception of the
Proxy Statement, are collectively referred to as “Trinity’s
SEC Reports”). As of
their respective dates, Trinity’s SEC Reports complied or will comply in all
material respects with all rules and regulations promulgated by the SEC and did
not or will 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 light of the circumstances under which they were made,
not misleading. Trinity has provided to the Adventure Shareholders a true and
complete copy of all of Trinity’s SEC Reports filed on or prior to the date
hereof, and will promptly provide to the Adventure Shareholders a true and
complete copy of any such reports filed after the date hereof and prior to the
Closing Date. Neither Trinity nor any of its respective directors or officers is
the subject of any investigation, inquiry or proceeding before the SEC or any
state securities commission or administrative agency.
4.15 OTC
Bulletin Board.
Each of
the Trinity Common Stock, Trinity Class B Common Stock, Trinity Class W Warrants
and Trinity Class Z Warrants are quoted on the OTC Bulletin Board under the
respective symbols “TPQCA”, “TPQCB”, TPQCW and “TPQCL,” and Trinity is in
compliance in all respects with all rules and regulations of the National
Association of Securities Dealers, Inc. applicable to Trinity and to the
inclusion for quotation of such securities on the OTC Bulletin
Board.
4.16 Absence
of Certain Changes or Events.
Since
December 31, 2004 there has not been:
(a) any
material adverse change in the financial condition, operations, properties,
assets, liabilities or business of Trinity;
(b) any
material damage, destruction or loss of any material properties of Trinity,
whether or not covered by insurance;
(c) any
change in the manner in which the business of Trinity has been
conducted;
(d) any
material change in the treatment and protection of trade secrets or other
confidential information of Trinity; and
(e) any
occurrence not included in paragraphs (a) through (d) of this Section which has
resulted, or which Trinity has reason to believe, could reasonably be expected
to result, in a Material Adverse Effect on Trinity.
4.17 Books,
Records and Accounts.
Trinity’s
books, records and accounts fairly and accurately reflect in all material
respects transactions and dispositions of assets by Trinity, and to the
Knowledge of Trinity, the system of internal accounting controls of Trinity is
sufficient to assure that: (a) transactions are executed in accordance with
management’s authorization; (b) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP, and to maintain
accountability for assets; (c) access to assets is permitted only in accordance
with management’s authorization; and (d) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
| 4.18 |
Disclosure
Controls. |
Trinity
has established and maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15 under the Exchange Act), which (i) are designed to
ensure that material information relating to Trinity is made known to Trinity’s
principal executive officer and its principal financial officer by others within
those entities, particularly during the preparation of the Proxy Statement; (ii)
have been evaluated for effectiveness as of the date of this Agreement; and
(iii) are effective in all material respects to perform the functions for which
they were established.
| 4.19 |
Absence
of Material Weaknesses. |
Based on
the evaluation of its internal controls over financial reporting, Trinity is not
aware of (i) any significant deficiency or material weakness in the design or
operation of internal controls over financial reporting which are reasonably
likely to adversely affect Trinit’'s ability to record, process, summarize and
report financial information; or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
internal controls over financial reporting.
4.20 Brokers
and Finders.
Except
for HCFP/▇▇▇▇▇▇▇ Securities LLC, Trinity has not employed any investment banker,
broker, finder, consultant or intermediary in connection with the transactions
contemplated by this Agreement which would be entitled to any investment
banking, brokerage, finder’s or similar fee or commission in connection with
this Agreement or the transactions contemplated hereby.
4.21 No
Omissions or Untrue Statements.
No
representation or warranty made by Trinity to Adventure or the Adventure
Shareholders in this Agreement, the Trinity Disclosure Schedule or in any
certificate of a Trinity officer required to be delivered to Adventure or the
Adventure Shareholders pursuant to the terms of this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein in
light of the circumstances in which made not misleading as of the date hereof
and as of the Closing Date.
Article
V.
CONDUCT
OF BUSINESS PENDING THE MERGER
5.1 Conduct
of Business Prior to Effective Time.
Each of
Trinity, the Adventure Shareholders and Adventure, as applicable, hereby
covenants and agrees as follows (and the Adventure Shareholders covenant and
agree to cause Adventure to comply with such covenants and agreements), from and
after the date of this Agreement and until the Effective Time, except as
specifically consented to in writing by the other party or as set forth in
Section 5.1 of the respective Disclosure Schedules:
(a) It shall
conduct its business in the ordinary and usual course of business and consistent
with past practice;
(b) It shall
not (i) split, combine or reclassify its outstanding capital stock or declare,
set aside or pay any dividend or distribution payable in cash, stock, property
or otherwise, (ii) spin-off any assets or businesses, (iii) engage in any
transaction for the purpose of effecting a recapitalization, or (iv) engage in
any transaction or series of related transactions which has a similar effect to
any of the foregoing;
(c) It shall
not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or
dispose of, any additional shares of, or any options, warrants or rights of any
kind to acquire any shares of its capital stock of any class or any debt or
equity securities convertible into or exchangeable for such capital stock or
amend or modify the terms and conditions of any of the foregoing, provided,
however, that it may issue shares upon exercise of outstanding options, warrants
or stock purchase rights;
(d) It shall
not (i) redeem, purchase, acquire or offer to purchase or acquire any shares of
its capital stock, other than as required by the governing terms of such
securities, (ii) take or fail to take any action which action or failure to take
action would cause it or its stockholders (except to the extent that any
stockholders receive cash in lieu of fractional shares) to recognize gain or
loss for Tax purposes as a result of the consummation of the Merger, (iii) make
any acquisition of any material assets (except in the ordinary course of
business) or businesses, (iv) sell any material assets (except in the ordinary
course of business) or businesses, or (v) enter into any contract, agreement,
commitment or arrangement to do any of the foregoing;
(e) It shall
use reasonable efforts to preserve intact its business organization and
goodwill, keep available the services of its present officers and key employees,
and preserve the goodwill and business relationships with suppliers,
distributors, customers, and others having business relationships with it, and
not engage in any action, directly or indirectly, with the intent to impact
adversely the transactions contemplated by this Agreement;
(f) It shall
confer on a regular basis with one or more representatives of the other to
report on material operational matters and the general status of ongoing
operations; and
(g) It shall
file with the SEC all forms, statements, reports and documents (including all
exhibits, amendments and supplements thereto) required to be filed by it
pursuant to the Exchange Act.
| 5.2 |
No
Solicitation. |
(a) Adventure
and the Adventure Shareholders agree that, prior to the Effective Time or the
termination or abandonment of this Agreement, that neither Adventure nor
Adventure’s Shareholders shall, and shall not give authorization or permission
to any of Adventure’s directors, officers, employees, agents or representatives
to, and each shall use all reasonable efforts to see that such persons do not,
directly or indirectly, solicit, initiate, facilitate or encourage (including by
way of furnishing or disclosing information) any merger, consolidation, other
business combination involving Adventure or any of the Subsidiaries, acquisition
of all or any substantial portion of the assets or capital stock of Adventure or
any of the Subsidiaries or inquiries or proposals concerning or which may
reasonably be expected to lead to any of the foregoing (an “Adventure
Acquisition Transaction”) or
negotiate, explore or otherwise knowingly communicate in any way with any third
party (other than Trinity or its Affiliates) with respect to any Adventure
Acquisition Transaction or enter into any agreement, arrangement or
understanding requiring Adventure or the Adventure Shareholders to abandon,
terminate or fail to consummate the Merger or any other transaction expressly
contemplated by this Agreement, or contemplated to be a material part thereof.
Adventure or the Adventure Shareholders shall advise Trinity in writing of any
bona fide
inquiries or proposals relating to any Adventure Acquisition Transaction within
one business day following receipt by Adventure or any of the Adventure
Shareholders of any such inquiry or proposal. Adventure or the Adventure
Shareholders shall also promptly advise any person seeking an Adventure
Acquisition Transaction that it is bound by the provisions of this Section
5.2(a).
(b) Trinity
agrees that, prior to the Effective Time or the termination or abandonment of
this Agreement, Trinity shall not give authorization or permission to any of its
directors, officers, employees, agents or representatives to, and each shall use
all reasonable efforts to see that such persons do not, directly or indirectly,
solicit, initiate, facilitate or encourage (including by way of furnishing or
disclosing information) any merger, consolidation, other business combination
involving Trinity, acquisition of all or any substantial portion of the assets
or capital stock of Trinity, or inquiries or proposals which may reasonably be
expected to lead to any of the foregoing (a “Trinity
Acquisition Transaction”) or
negotiate, explore or otherwise knowingly communicate in any way with any third
party (other than the Adventure Shareholders) with respect to any Trinity
Acquisition Transaction or enter into any agreement, arrangement or
understanding requiring it to abandon, terminate or fail to consummate the
Merger or any other transaction expressly contemplated by this Agreement, or
contemplated to be a material part thereof. Trinity shall advise the Adventure
Shareholders in writing of any bona fide
inquiries or proposals relating to a Trinity Acquisition Transaction, within one
business day following Trinity’s receipt of any such inquiry or proposal.
Trinity shall also promptly advise any person seeking a Trinity Acquisition
Transaction that it is bound by the provisions of this Section
5.2(b).
Article
VI.
ADDITIONAL
AGREEMENTS
6.1 Access
to Information.
Each of
Trinity and Adventure shall afford to the other and the other’s accountants,
counsel, financial advisors and other representatives reasonable access during
normal business hours throughout the period prior to the Effective Time to all
properties, books, contracts, commitments and records (including, but not
limited to, Tax Returns) of it and, during such period, shall furnish promptly
(a) a copy of each report, schedule and other document filed or received by it
during such period pursuant to the requirements of federal or state securities
laws or filed by it during such period with the SEC in connection with the
transactions contemplated by this Agreement or which may have a Material Adverse
Effect on it and (b) such other information concerning its business, properties
and personnel as the other shall reasonably request; provided, however, that no
investigation pursuant to this Section 6.1 shall affect any representation or
warranty made herein or the conditions to the obligations of the respective
parties to consummate the Merger. All non-public documents and information
furnished to Trinity, Adventure or the Adventure Shareholders, as the case may
be, in connection with the transactions contemplated by this Agreement shall be
deemed to have been received, and shall be held by the recipient, in confidence,
except that Trinity and the Adventure Shareholders, as applicable, may disclose
such information as may be required under applicable Law or as may be necessary
in connection with the preparation of the Proxy Statement. Each party shall
promptly advise the others, in writing, of any change or the occurrence of any
event after the date of this Agreement and prior to the Effective Time having,
or which, insofar as can reasonably be foreseen, in the future would reasonably
be expected to have, any Material Adverse Effect on Adventure or Trinity, as
applicable.
6.2 Adventure
Registration Statement.
(a) Adventure
covenants and agrees to file with the SEC as soon as shall be reasonably
practicable following the date of this Agreement (provided Trinity shall have
supplied Adventure with the Proxy Statement to be included therein), at its sole
cost and expense, a registration statement on Form F-1/F-4 or comparable form
(the “Adventure
Registration Statement”) which
shall include a joint proxy statement/prospectus (the “Proxy
Statement”)
relating to the solicitation of the Trinity Stockholders’ Approval of, and
covering the issuance of the Adventure Shares in, the Merger, the Adventure
Exchange Securities and the shares of Adventure common stock underlying the
Adventure Exchange Securities. Adventure shall use all reasonable best efforts
to have the Adventure Registration Statement declared effective by the SEC as
promptly as practicable thereafter. Adventure shall also take any action (other
than qualifying to do business in any jurisdiction in which it is not now so
qualified or to file a general consent to service of process) required to be
taken under any applicable state securities Laws in connection with the issuance
of Adventure Shares and the Adventure Exchange Securities in the Merger. No
filing of, or amendment or supplement to, or correspondence to the SEC or its
staff with respect to, the Adventure Registration Statement or the Proxy
Statement will be made by Adventure, without providing Trinity a reasonable
opportunity to review and comment thereon. Adventure will advise Trinity,
promptly after it receives notice thereof, of the time when the Adventure
Registration Statement has become effective or any supplement or amendment has
been filed to the Adventure Registration Statement or the Proxy Statement, the
issuance of any stop order, the suspension of the qualification of Adventure
Shares issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Adventure
Registration Statement, the Proxy Statement or comments thereon and responses
thereto or requests by the SEC for additional information. If at any time prior
to the Effective Time any information relating to Trinity or Adventure, or any
of their respective Affiliates, officers or directors, should be discovered by
Trinity or Adventure which should be set forth in an amendment or supplement to
any of the Adventure Registration Statement or the Proxy Statement, so that any
of such documents would not include any misstatement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, the party which
discovers such information shall promptly notify the other parties hereto and an
appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law, disseminated to
the stockholders of Trinity.
(b) Trinity
and Adventure shall promptly furnish to each other all information, and take
such other actions, as may reasonably be requested in connection with any action
by any of them in connection with the preparation and filing of the Adventure
Registration Statement and the Proxy Statement and shall cooperate with one
another and use their respective best efforts to facilitate the expeditious
consummation of the transactions contemplated by this Agreement.
6.3 SEC
Filings by Trinity.
Trinity
shall file with the SEC, as soon as reasonably practicable following the filing
of the Adventure Registration Statement, any document required to be filed by it
in connection with the Merger and the Trinity Stockholders’ Approval
contemplated by this Agreement, including, without limitation, any documents
required under the SEC’s Regulation 14A.
6.4 Stockholders’
Approval.
Trinity
shall use its reasonable best efforts to obtain Trinity Class B stockholder
approval and adoption (including having less than 20% of Trinity Class B
stockholders exercise their conversion rights) (collectively, the “Trinity
Stockholders’ Approval”) of
this Agreement and the transactions contemplated hereby, as soon as practicable
in accordance with applicable Delaware law and the Trinity Bylaws following the
date upon which the Adventure Registration Statement is declared effective by
the SEC. Trinity shall, through its board of directors, recommend to the holders
of Trinity Common Stock approval of this Agreement and the transactions
contemplated by this Agreement. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the “Trinity
Directors”), in
their capacities as members of the board of directors of Trinity but subject to
their fiduciary duty to the stockholders of Trinity, in connection with the
solicitation of proxies pursuant to the Proxy Statement, shall unanimously
recommend the approval and adoption of the Merger and this Agreement by the
stockholders of Trinity.
6.5 Stock
Exchange Listing/Exchange Act Listing.
Trinity
and Adventure shall each use its reasonable best efforts to file, at or before
the Effective Time, authorization for listing of the Adventure Shares and the
Adventure Exchange Securities on the NASDAQ SmallCap Market, The American Stock
Exchange Inc. or, if permissible, the NASDAQ National Market (the “Stock
Exchange Listing”). In
addition, Adventure shall, as soon as reasonably practicable, file a
registration statement under the Exchange Act and use its reasonable best
efforts to cause the SEC to declare such registration statement effective with
respect to the listing of the Adventure Shares issued in the Merger, the
Adventure Exchange Securities and the shares of Adventure common stock
underlying the Adventure Exchange Securities (the “Exchange
Act Listing”).
6.6 Trinity
Warrants and Trinity Options.
At the
Effective Time, Adventure shall assume each Trinity Warrant and Trinity Option
in accordance with the terms of the agreement under which it was issued and all
rights with respect to Trinity Capital Stock under each Trinity Warrant and
Trinity Option then outstanding shall be converted into and become warrants and
options in Adventure (the “Adventure
Exchange Securities”).
Accordingly, after the Effective Time, each holder of Adventure Exchange
Securities at the time of exercise sh all receive a number of Adventure Shares
(rounded up to the nearest whole share) equal to the number of shares of Trinity
Common Stock subject to such Trinity Warrant or Trinity Option immediately prior
to the Effective Time multiplied by the Exchange Ratio at an exercise price per
Adventure Share (rounded up to the nearest whole cent) equal to the exercise
price in effect prior to the Effective Time divided by the Exchange Ratio. The
Adventure Exchange Securities shall contain the same terms, conditions and
restrictions that were applicable to the Trinity Warrants and Trinity Options.
Prior to the Effective Time, Adventure shall take all necessary action to assume
as of the Effective Time all obligations undertaken by Adventure under this
Section 6.6, including the reservation, issuance and listing of a number of
Adventure Shares at least equal to the number of Adventure Shares subject to the
assumed Trinity Warrants and Trinity Options.
| 6.7 |
Agreement
to Cooperate. |
Subject
to the terms and conditions herein provided, each of the parties hereto shall
cooperate and use their respective best efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, including using its reasonable
efforts to obtain all necessary or appropriate waivers, consents and approvals
to effect all necessary registrations, filings and submissions and to lift any
injunction or other legal bar to the Merger (and, in such case, to proceed with
the Merger as expeditiously as possible), subject, however, to obtaining the
Trinity Stockholders’ Approval; and provided that nothing in this Section 6.7
shall affect any responsibility or obligation specifically allocated to any
party in this Agreement.
6.8 Public
Statements.
The
parties shall consult with each other prior to issuing any press release or any
written public statement with respect to this Agreement or the transactions
contemplated hereby. Trinity shall not issue any such press release or any other
public statement with respect to this Agreement or the transactions contemplated
hereby absent the prior written consent of the Adventure Shareholders (which
consent shall not be unreasonably withheld or delayed), except that such prior
written consent shall not be required if, in the reasonable judgment of Trinity
based upon the advice of counsel, seeking and obtaining prior written consent
would prevent the timely dissemination of such release or statement in violation
of the Exchange Act or other applicable Law or Order.
| 6.9 |
Corrections
to the Proxy Statement and the Adventure Registration
Statement. |
Prior to
the Closing Date, each of Adventure and the Adventure Shareholders and Trinity
shall correct promptly any information provided by it to be used specifically in
the Proxy Statement and the Adventure Registration Statement that shall have
become false or misleading in any material respect and shall take all steps
necessary to file with the SEC and have cleared by the SEC any amendment or
supplement to the Proxy Statement and the Adventure Registration Statement so as
to correct the same and to cause appropriate dissemination thereof to the
stockholders of Trinity, to the extent required by applicable Law.
6.10 Disclosure
Supplements.
From time
to time prior to the Closing Date, and in any event immediately prior to the
Closing Date, each of Trinity, Adventure and the Adventure Shareholders shall
promptly supplement or amend its Disclosure Schedule with respect to any matter
hereafter arising that, if existing, occurring or known at the date of this
Agreement, would have been required to be set forth or described in such
Disclosure Schedule or that is necessary to correct any information in such
Disclosure Schedule that is or has become inaccurate. Notwithstanding the
foregoing, if any such supplement or amendment discloses a Material Adverse
Effect, the conditions to the other party’s obligations to consummate the Merger
set forth in Article VII hereof shall be deemed not to have been
satisfied.
| 6.11 |
Post-Closing
Board Observation Rights. |
For a
period of one (1) year following the Closing Date, the Trinity Directors shall
have the right to send a representative to observe each meeting of the board of
directors of Adventure. Absent his illness or unavailability, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
shall be the designated representative for such purpose. During such period,
such representative shall be provided by Adventure with written notice of each
such meeting sufficiently in advance thereof to permit attendance thereat, and
an agenda and minute thereof. Adventure shall reimburse such representative for
his reasonable out-of-pocket expenses incurred in connection with his attendance
at each such meeting, including, but not limited to, the cost of transportation,
lodging and food.
6.12 Employment
Agreements.
Each of
G. Gourdomichalis, S. Gourdomichalis and Varouxakis shall enter into employment
agreements with Adventure on terms reasonably satisfactory to Trinity (the
“Employment
Agreements”).
6.13 Assignment
by Adventure Shareholders.
The
parties hereby agree that V Capital and G Bros may transfer and assign all but
not less than all of their shares in Adventure each to another company prior to
the filing of the Adventure Registration Statement, provided that with respect
to any such company (a) one or more of G. Gourdomichalis,
S. Gourdomichalis and Varouxakis are the sole registered and beneficial
shareholders of such company and (b) at least ten (10) days’ prior written
notice shall have been given to Trinity. In the case of any such permitted
transfer and assignment, the transferee or assignee shall execute a counterpart
signature page to this Agreement, shall be an Adventure Shareholder for all
purposes of this Agreement, shall be deemed to have made all of the
representations, warranties and covenants of an Adventure Shareholder hereunder
and shall have all the rights and obligations of an Adventure Shareholder under
this Agreement.
Article
VII.
CONDITIONS
7.1 Conditions
to Each Party’s Obligations to Effect the Merger.
The
respective obligation of each party to effect the Merger shall be subject to the
fulfillment at or prior to the Closing Date of the following
conditions:
(a) Trinity
shall have obtained the Trinity Stockholders’ Approval;
(b) The
Adventure Registration Statement shall have become effective under the
Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order;
(c) The
Adventure Shares issuable to Trinity’s stockholders, the Adventure Exchange
Securities and the stock issuable upon exercise thereof shall have been approved
for the Stock Exchange Listing and the Exchange Act Listing, subject to any
notice of issuance or similar requirement.
(d) No
preliminary or permanent injunction or other order or decree by any Governmental
Authority which prevents or materially burdens the consummation of the Merger
shall have been issued and remain in effect (each party agreeing to use its
reasonable efforts to have any such injunction, order or decree
lifted);
(e) No action
shall have been taken, and no statute, rule or regulation shall have been
enacted, by any Governmental Authority, which would prevent or materially burden
the consummation of the Merger;
(f) All
consents, orders and approvals legally required for the consummation of the
Merger and the transactions contemplated hereby shall have been obtained and be
in effect at the Effective Time without any material limitations or conditions.
7.2 Conditions
to Obligations of Adventure and the Adventure Shareholders to Effect the
Merger.
Unless
waived by the Adventure Shareholders, the obligation of the Adventure
Shareholders to effect the Merger shall also be subject to the fulfillment at or
prior to the Closing Date of the following additional conditions:
(a) Trinity
shall have performed in all material respects its agreements contained in this
Agreement required to be performed on or prior to the Closing Date and the
representations and warranties of Trinity contained in this Agreement shall be
true and correct in all material respects (except for those representations and
warranties which are themselves limited by a reference to materiality, which
shall be true and correct in all respects other than as modified) on and as of
(i) the date made and (ii) the Closing Date (in each case except in the case of
representations and warranties expressly made solely with reference to a
particular date which shall be true and correct in all material respects as of
such date); and Adventure and the Adventure Shareholders shall have received a
certificate of the president of Trinity to that effect;
(b) Adventure
shall have received an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to Trinity,
dated the Closing Date, in form and substance reasonably satisfactory to
Adventure, which shall include, among other things, an opinion that there will
not be any recognition of gain to Trinity or Trinity stockholders upon
consummation of the Merger;
(c) Adventure
shall have received a “comfort” letter from ▇.▇. ▇▇▇▇ LLP, independent public
accountants for Trinity, dated the date of the Proxy Statement and the Closing
Date (or such other date reasonably acceptable to Adventure) with respect to
certain financial statements of Trinity and other related financial information
included in the Proxy Statement in customary form;
(d) Since the
date of this Agreement there shall not have been any Material Adverse Effect
with respect to Trinity, the likelihood of which was not previously disclosed to
Adventure and the Adventure Shareholders by Trinity in the Trinity Disclosure
Schedule or contemplated by this Agreement and Trinity shall have engaged in no
business activity since the date of its incorporation other than conducting a
public offering of its securities and, thereafter, seeking to effect a merger or
similar business combination with an operating business;
(e) Adventure
shall have received a certificate from the corporate Secretary of Trinity,
together with a certified copy of the resolutions duly authorized by Trinity’s
board of directors authorizing the Merger and, if applicable, the transactions
contemplated by this Agreement;
(f) Adventure
shall have received a certificates of good standing for Trinity from the
Secretary of State of the State of Delaware dated as of a date that is within
five (5) days of the Closing Date;
(g) Trinity
shall have furnished to the Adventure Shareholders such additional certificates
and other customary closing documents as Adventure and the Adventure
Shareholders may have reasonably requested as to any of the conditions set forth
in this Section 7.2;
(h) At the
Effective Time, Trinity shall have approximately $7,350,000 but not less than
$7,000,000 in cash or cash equivalents after giving effect to (a) the payment or
accrual on or prior to the Effective Time of all expenses incurred by Trinity,
including, but not limited to, the fees and expenses of Trinity’s attorneys,
accountants and investment bankers (including HCFP/▇▇▇▇▇▇▇ Securities) LLC, and
(b) any payments to be made to dissenting Trinity stockholders, in connection
with the transactions contemplated by this Agreement;
(i) At
Closing, the Trinity capitalization shall be unchanged from that set forth in
Section 4.2 (other than to reflect issuances, if any, of Trinity Common Stock
upon exercises prior to the Effective Time of Trinity’s Class W Warrants and/or
Trinity Class Z Warrants);
(j) Adventure
and the Adventure Shareholders shall have received a letter agreement signed by
each officer and director of Trinity (collectively, the “Trinity
Principals”), in
form and substance satisfactory to Adventure, the Adventure Shareholders and
Trinity (“Lock-Up
Agreements”);
(k) Adventure
and the Adventure Shareholders shall have received written resignations from
each of Trinity’s directors and officers and which resignations, by their
respective terms, shall become effective immediately prior to the Effective
Time;
(l) Trinity
shall have conducted the operation of its business in material compliance with
all applicable Laws and all approvals required of Trinity under applicable law
to enable Trinity to perform its obligations under this Agreement shall have
been obtained; and
(m) All
corporate proceedings of Trinity in connection with the Merger and the other
transactions contemplated by this Agreement and all agreements, instruments,
certificates, and other documents delivered to the Adventure Shareholders by or
on behalf of Trinity pursuant to this Agreement shall be reasonably satisfactory
to Adventure and the Adventure Shareholders and their counsel.
7.3 Conditions
to Obligations of Trinity to Effect the Merger.
Unless
waived by Trinity, the obligations of Trinity to effect the Merger shall also be
subject to the fulfillment at or prior to the Closing Date of the additional
following conditions:
(a) Adventure
and the Adventure Shareholders shall have performed in all material respects
their agreements contained in this Agreement required to be performed on or
prior to the Closing Date and the representations and warranties of Adventure
and the Adventure Shareholders contained in this Agreement shall be true and
correct in all material respects (except for those representations and
warranties which are themselves limited by a reference to materiality, which
shall be true and correct in all respects, other than as modified) on and as of
(i) the date made and (ii) the Closing Date (in each case except in the case of
representations and warranties expressly made solely with reference to a
particular date which shall be true and correct in all material respects as of
such date); and Trinity shall have received a Certificate of each of the
Adventure Shareholders and of the president of Adventure to that
effect;
(b) Trinity
shall have received an opinion from Broad and ▇▇▇▇▇▇, dated the Closing Date, in
form and substance reasonably satisfactory to Trinity;
(c) Trinity
shall have received a “comfort” letter from PriceWaterhouseCoopers LLP,
independent certified public accountants for Adventure, dated the date of the
Proxy Statement and the Closing Date (or such other date reasonably acceptable
to Trinity) with respect to certain financial statements of Adventure and other
related financial information included in the Proxy Statement in customary
form;
(d) Trinity
shall have received:
(1) A
Certificate of Ownership and Encumbrance issued by the Office of the Maritime
Administrator, Republic of the ▇▇▇▇▇▇▇▇ Islands, dated not more than five (5)
Business Days prior to the Closing, confirming that Adventure Two S.A. is the
owner of the Free Destiny free and clear of any Lien other than as disclosed in
Section 3.9(b) of the Adventure Disclosure Schedule;
(2) A
Certificate of Ownership and Encumbrance issued by the Office of the Maritime
Administrator, Republic of the ▇▇▇▇▇▇▇▇ Islands, dated not more than five (5)
Business Days prior to the Closing, confirming that Adventure Three S.A. is the
owner of the Free Envoy free and clear of any Lien other than as disclosed in
Section 3.9(b) of the Adventure Disclosure Schedule;
(3) A
certificate by Lloyds dated not more than ten (10) Business Days prior to the
Closing, to the effect that the Free Destiny is in class without overdue
recommendation;
(4) A
certificate by the Korean Register of Shipping dated not more than ten (10)
Business Days prior to the Closing, to the effect that the Free Envoy is in
class without overdue recommendation; and
(5) Facsimile
advice, dated the Closing Date, from one or more protection and indemnity
insurance clubs for the effect that each of the Vessels is or are entered
therein, as applicable, as of that date.
(e) At
Closing, Adventure’s capitalization shall be unchanged from that as set forth in
Section 3.3;
(f) Trinity
shall have received a certificate of the corporate Secretary of Adventure
together with a certified copy of the resolutions duly authorized by the board
of directors and Adventure Shareholders authorizing the Merger and the
transactions contemplated by this Agreement;
(g) Trinity
shall have received a certificate of good standing for Adventure from the
Registrar of Corporations of the Republic of the ▇▇▇▇▇▇▇▇ Islands dated as of a
date that is within five (5) days of the Closing Date;
(h) Adventure
and the Adventure Shareholders shall have furnished to Trinity such additional
certificates and other customary closing documents as Trinity may have
reasonably requested as to any of the conditions set forth in this Section
7.3;
(i) Since the
date of this Agreement there shall not have been any Material Adverse Effect
with respect to Adventure, the likelihood of which was not previously disclosed
to Trinity by Adventure and the Adventure Shareholders;
(j) Trinity
shall have received Lock-Up Agreements from each Adventure
Shareholder;
(k) The
Employment Agreements shall have been executed;
(l) Adventure,
V Capital and G Bros (or their permitted transferees or assignees under Section
6.13 above), Adventure Two S.A and Adventure Three S.A. shall have each amended
their respective Articles of Incorporation and By-laws on terms reasonably
satisfactory to Trinity, including, but not limited to, removing any ability of
such company to issue bearer shares, and such documents shall be in full force
and effect;
(m) Adventure
shall be the sole registered and beneficial shareholder of Adventure Two S.A.
and Adventure Three S.A.;
(n) V Capital
and G Bros (or their permitted transferees or assignees under Section 6.13
above) shall be the sole registered and beneficial shareholders of
Adventure;
(o) One or
more of G. Gourdomichalis,
S. Gourdomichalis and Varouxakis shall be the sole registered and beneficial
shareholders of V Capital and G Bros (or their permitted transferees or
assignees under Section 6.13 above);
(p) All
corporate proceedings of Adventure and the Adventure Shareholders in connection
with the Merger and the other transactions contemplated by this Agreement and
all agreements, instruments, certificates and other documents delivered to
Trinity by or on behalf of Adventure and the Adventure Shareholders pursuant to
this Agreement shall be in substantially the form called for hereunder or
otherwise reasonably satisfactory to Trinity and its counsel.
Article
VIII.
TERMINATION,
AMENDMENT AND WAIVER
8.1 Termination.
This
Agreement may be terminated at any time prior to the Closing Date, whether
before or after approval by the stockholders of Trinity:
(a) by mutual
consent in writing of Trinity and the Adventure Shareholders;
(b) unilaterally
upon written notice by Trinity to the Adventure Shareholders upon the occurrence
of a Material Adverse Effect with respect to Adventure, the likelihood of which
was not previously disclosed to Trinity in writing by the Adventure Shareholders
prior to the date of this Agreement;
(c) unilaterally
upon written notice by the Adventure Shareholders to Trinity upon the occurrence
of a Material Adverse Effect with respect to Trinity, the likelihood of which
was not previously disclosed to the Adventure Shareholders in writing by Trinity
prior to the date of this Agreement;
(d) unilaterally
upon written notice by Trinity to the Adventure Shareholders in the event a
material breach of any material representation or warranty of Adventure or the
Adventure Shareholders contained in this Agreement (unless such breach shall
have been cured within ten (10) days after the giving of such notice by
Trinity), or the willful failure of Adventure or the Adventure Shareholders to
comply with or satisfy any material covenant or condition of Adventure or the
Adventure Shareholders contained in this Agreement;
(e) unilaterally
upon written notice by the Adventure Shareholders to Trinity in the event of a
material breach of any material representation or warranty of Trinity contained
in this Agreement (unless such breach shall have been cured by Trinity within
ten (10) days after the giving of such notice by the Adventure Shareholders), or
Trinity’s willful failure to comply with or satisfy any material covenant or
condition of Trinity contained in this Agreement, or if Trinity fails to obtain
the Trinity Stockholders’ Approval; or
(f) unilaterally
upon written notice by either Trinity or the Adventure Shareholders to the other
if the Merger is not consummated for any reason not specified or referred to in
the preceding provisions of this Section 8.1 by the close of business on July
31, 2005.
8.2 Effect
of Termination.
In the
event of termination of this Agreement by either Trinity or the Adventure
Shareholders, as provided in Section 8.1, this Agreement shall forthwith become
void and there shall be no further obligation on the part of either Adventure
and the Adventure Shareholders or Trinity (except as set forth in the
penultimate sentence of Section 6.1 (with respect to confidential and nonpublic
information) and Section 8.5, which shall survive such termination). Nothing in
this Section 8.2 shall relieve any party from liability for any breach of this
Agreement.
8.3 Amendment.
This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto and in compliance with applicable
law.
8.4 Waiver.
At any
time prior to the Effective Time, the parties hereto may (i) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant thereto and (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
8.5 Expenses.
Whether
or not the Merger is consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs and expenses, except as otherwise specifically
provided for herein.
Article
IX.
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
9.1 Survival
of Representations and Warranties.
The
respective representations, warranties, obligations, agreements and promises of
the parties contained in this Agreement and in any exhibit, schedule,
certificate or other document delivered pursuant to this Agreement, shall
survive for a period of one year following the Closing Date.
9.2 Indemnification
by Adventure and Adventure Shareholders.
(a) Adventure
and each Adventure Shareholder hereby agrees to indemnify and hold harmless
Trinity and the Trinity stockholders (in the aggregate, in proportion to each
such Trinity stockholder’s ownership of the capital stock of Adventure, on a
fully diluted basis) and each of their Affiliates and their respective
fiduciaries, directors, officers, controlling
persons, representatives and agents against and hold them harmless from any
loss, liability, claim, damage or expense (including reasonable legal fees and
expenses and costs of investigation) (a “Loss”)
arising, directly or indirectly, out of or in connection with (i) any breach of
any representation or warranty
of Adventure or the Adventure Shareholders contained in this Agreement, or (ii)
any breach of any covenant or agreement of Adventure or the Adventure
Shareholders contained
in this Agreement.
(b) Trinity
hereby agrees to indemnify and hold harmless Adventure and the Adventure
Shareholders (in the aggregate, in proportion to each such Adventure
Shareholder’s ownership of the capital stock of Adventure, on a fully diluted
basis) and each of their Affiliates and their respective fiduciaries, directors,
officers, controlling persons, representatives and agents against and hold them
harmless from any Loss arising, directly or indirectly, out of or in connection
with (i) any breach of any representation or warranty of Trinity contained in
this Agreement, or (ii) any breach of any covenant or agreement of Trinity
contained in this Agreement.
9.3 Third-Party
Claims.
(a) If any
party entitled to be indemnified hereunder (an “Indemnified
Party”)
receives notice of the assertion of any claim in respect of Losses, such
Indemnified Party shall give the party who may become obligated to provide
indemnification hereunder (the “Indemnifying
Party”)
written notice describing such claim or fact in reasonable detail (the
“Notice
of Claim”)
promptly (and in any event within ten (10) Business Days after receiving any
written notice from a third party). The failure by the Indemnified Party to
timely provide a Notice of Claim to the Indemnifying Party shall not relieve the
Indemnifying Party of any liability, except to the extent that the Indemnifying
Party is prejudiced by the Indemnified Party’s failure to provide timely notice
hereunder.
(b) In the
event any Indemnifying Party notifies the Indemnified Party within ten (10)
Business Days after the Indemnified Party has given notice of the matter that
the Indemnifying Party is assuming the defense thereof: (i) the Indemnifying
Party will defend the Indemnified Party against the matter with counsel of its
choice reasonably satisfactory to the Indemnified Party; (ii) the Indemnified
Party may retain separate co-counsel at its sole cost and expense (except that
the Indemnifying Party will be responsible for the fees and expenses of the
separate co-counsel to the extent the Indemnified Party reasonably concludes
that the counsel the Indemnifying Party has selected has a conflict of
interest); (iii) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the matter without the
written consent of the Indemnifying Party which consent shall not be
unreasonably withheld; and (iv) the Indemnifying Party will not consent to the
entry of any judgment with respect to the matter, or enter into any settlement
which does not include a provision whereby the plaintiff or claimant in the
matter releases the Indemnified Party from all liability with respect thereto,
and, in a settlement or compromise which does not involve only the payment of
money by the Indemnifying Party, without the prior written consent of the
Indemnified Party which consent shall not be unreasonably withheld.
(c) In the
event the Indemnifying Party does not notify the Indemnified Party within ten
(10) Business Days after the Indemnified Party has received a Notice of Claim
that the Indemnifying Party is assuming the defense thereof, then the
Indemnified Party shall have the right, subject to the provisions of this
Article IX, to undertake the defense, compromise or settlement of such claim for
the account of the Indemnifying Party. Unless and until the Indemnifying Party
assumes the defense of any claim, the Indemnifying Party shall advance to the
Indemnified Party any of its reasonable attorneys’ fees and other costs and
expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advance that, in the event it receives any such advance, such Indemnified Party
shall reimburse the Indemnifying Party for such fees, costs and expenses to the
extent that it shall be determined that it was not entitled to indemnification
under this Article IX.
(d) In the
event that the Indemnifying Party undertakes the defense of any claim, the
Indemnifying Party will keep the Indemnified Party advised as to all material
developments in connection with such claim, including, but not limited to,
promptly furnishing the Indemnified Party with copies of all material documents
filed or served in connection therewith.
Article
X.
GENERAL
PROVISIONS
10.1 Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally (effective upon delivery), sent by a
reputable overnight courier service for next business day delivery (effective
the next business day) or sent via facsimile (effective upon receipt of the
telecopy in complete, readable form) to the parties at the following addresses
(or at such other address for a party as shall be specified by like
notice):
(a) If to
Trinity to:
Trinity
Partners Acquisition Company, Inc.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
President
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
with a
copy to:
▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
(b) If to
Adventure Holdings S.A. or to the Adventure Shareholders, to:
▇/▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇
FAX:
▇▇▇-▇▇▇-▇▇▇▇▇▇
with a
copy to:
Broad and
▇▇▇▇▇▇
▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
FAX:
(▇▇▇) ▇▇▇-▇▇▇▇
10.2 Interpretation.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
10.3 Miscellaneous.
This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof (including without limitation that certain
letter of intent dated January 10, 2005 between Trinity, Adventure and the
Adventure Shareholders); (ii) shall not be assigned by contract, operation of
law or otherwise, and any attempt to do so shall be void, except that the rights
and obligations of the Adventure Shareholders hereunder shall be assigned to any
transferee or assignee permitted under Section 6.13 above; and (iii) shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of New York (without giving effect to the provisions thereof
relating to conflicts of law).
10.4 Submission
to Jurisdiction.
Each of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the non-exclusive jurisdiction of the Supreme Court of the
State of New York sitting in the Borough of Manhattan in The City of New York
and of the United States District Court for the Southern District of New York
sitting in the Borough of Manhattan in The City of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to any matter set forth in this Agreement, and each of the parties hereto hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such New York State or Federal court. Adventure and the
Adventure Shareholders hereby irrevocably waive, to the fullest extent that they
may legally do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. Adventure and the Adventure Shareholders irrevocably
consent to the service of any and all process in any action or proceeding by the
delivery of copies of such process to it at its notice address in Section 10.1.
Adventure and the Adventure Shareholders agree that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
10.5 Waiver
of Jury Trial.
THE
PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY (BUT NO OTHER JUDICIAL REMEDIES) IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
10.6 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement. In pleading or proving this Agreement, it shall not be necessary to
produce or account for more than one fully executed original.
10.7 Benefits
of Agreement.
Nothing
in this Agreement, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, and the stockholders of
Trinity, any benefit or any legal or equitable right, remedy or claim under this
Agreement, except that the holders of Trinity Capital Stock on the Closing Date
shall be third party beneficiaries of Article IX of this Agreement and (ii) the
Trinity Principals shall be third party beneficiaries of Section 6.3 and Article
IX of this Agreement.
10.8 Parties
in Interest.
This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Agreement, except as otherwise provided in Section 10.7 of
this Agreement.
10.9 Captions.
The
captions of sections and subsections of this Agreement are for reference only,
and shall not affect the interpretation or construction of this
Agreement.
IN
WITNESS WHEREOF,
Trinity, Adventure and the Adventure Shareholders have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
TRINITY
PARTNERS ACQUISITION
COMPANY, INC.
COMPANY, INC.
By:
__/s/
▇▇▇▇▇▇▇▇ Burstein___________
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
President
ADVENTURE
HOLDINGS, S.A.
By:
__/s/
▇▇▇▇▇▇ ▇. Gourdomichalis____
Name:
▇▇▇▇▇▇ ▇. Gourdomichalis
Title:
President
V
CAPITAL S.A.
By:
__/s/
Ion G. Varouxakis___________
Name: Ion
▇. ▇▇▇▇▇▇▇▇▇▇
Title:
President
G
BROS S.A.
By:
__/s/
▇▇▇▇▇▇ ▇. Gourdomichalis____
Name:
▇▇▇▇▇▇ ▇. Gourdomichalis
Title:
President
___/s/
▇▇▇▇▇▇ ▇. Gourdomichalis__________
▇▇▇▇▇▇ ▇.
Gourdomichalis
___/s/
Stathis D. Gourdomichalis___________
Stathis
D. Gourdomichalis
___/s/
Ion G. Varouxakis_________________
Ion ▇.
▇▇▇▇▇▇▇▇▇▇
Exhibit
2.6
Adventures
Shares Post Merger
|
Securities
Outstanding Before Merger |
Adventure
Shares Post Merger¹ |
|||
|
287,600
shares of Trinity Common Stock
|
287,600
|
|||
|
1,495,000
shares of Trinity Class B Common Stock
|
1,495,000
|
|||
|
280,000
Trinity Common Stock Options
|
280,000
|
|||
|
130,000
Trinity Class B Common Stock Options
|
130,000
|
|||
|
1,828,750
Trinity Class W Warrants
|
1,828,750
|
|||
|
1,828,750
Trinity Class Z Warrants
|
1,828,750
|
|||
|
4,500,000
Adventure common shares
|
4,500,000
|
|||
|
950,000
Adventure share options and/or warrants
|
950,000
|
|||
1 Assumes all outstanding securities in Trinity and Adventure are exchanged
for, or converted to, Adventure Shares.
Trinity
Disclosure Schedule
See
attached
SCHEDULE
4.1
ORGANIZATION
AND QUALIFICATION
Delaware
and New York
SCHEDULE
4.9
PERMITS
None
Adventure
and Adventure Shareholders’ Disclosure Schedule
See
attached
SCHEDULE
2.5
DIRECTORS
AND OFFICERS OF ADVENTURE
AS
OF THE EFFECTIVE TIME
Directors
| · |
Ion
Varouxakis |
| · |
▇▇▇▇▇▇
Gourdomichalis |
| · |
▇▇▇▇▇▇▇
Gourdomichalis |
SCHEDULE
3.1(a)
QUALIFIED
BUSINESS JURISDICTIONS
▇▇▇▇▇▇▇▇
Islands
SCHEDULE
3.1(b)
SUBSIDIARY
QUALIFIED JURISDICTIONS AND SHARES
▇▇▇▇▇▇▇▇
Islands.
Adventure
Two S.A.
Adventure
Two S.A. is the owner of the Free Destiny. As part of the security relating to
the financing for the Free Destiny, Adventure is a party to a Pledge Agreement,
pledging all of its shares of Adventure Two as security for the Note used to
purchase the Free Destiny.
SCHEDULE
3.3
ADVENTURE
OPTIONS
Immediately
prior to the Closing, there will be 950,000 options and/or warrants to purchase
shares of Adventure common stock issued to the current Adventure Shareholders in
connection with the proposed merger.
SCHEDULE
3.5(a)
MATERIAL
CONTRACTS
Adventure
Holdings S.A.
8/2/2004
Loan
G Bros
S.A. and V Capital S.A., the sole shareholders of Adventure, are the lenders of
a loan facility to Adventure dated August 2, 2004. The principal amount of the
loan facility is $1,579,447.03. The facility bears no interest and there are no
periodic payments required. The balance of the facility is due in full upon the
earlier of (1) the sale of the “Free Destiny,” or (2) December 31,
2006.
9/20/2004
Loan
G Bros
S.A. and V Capital S.A., the sole shareholders of Adventure, are the lenders of
a loan facility to Adventure dated September 20, 2004. The principal amount of
the loan facility is $2,554,737.25. The facility bears no interest and there are
no periodic payments required. The balance of the facility is due in full upon
the earlier of (1) the sale of the “Free Destiny,” or (2) December 31,
2006.
Adventure
Two S.A.
Adventure
Two has a management contract with Free Bulkers S.A., a company owned and
operated by Adventure’s directors. Pursuant to the Agreement, Free Bulkers is
responsible for all of the day-to-day management of Adventure Two, and the Free
Destiny.
| Ø |
Bank
Loan |
Adventure
Two is a party to a credit facility in the principal amount of $6 million as
described in Schedule 3.9(b).
| Ø |
Insurance |
See
Schedule 3.22.
| Ø |
Charter
Agreement |
Adventure
Two is a party to a time charter agreement with Express Sea Transport
Corporation. The agreement provides for the chartering of the “Free Destiny” for
between twelve and fifteen months commencing July, 2004. Pursuant to the
agreement, Adventure Two receives $10,530 per day for the charter.
Adventure
Three S.A.
Adventure
Three has a management contract with Free Bulkers S.A., a company owned and
operated by Adventure’s directors. Pursuant to the Agreement, Free Bulkers is
responsible for all of the day-to-day management of Adventure Three, and the
Free Envoy.
| Ø |
Bank
Loan |
Adventure
Three is a party to a credit facility in the principal amount of $5 million as
described in Schedule 3.9(b).
| Ø |
Insurance |
See
Schedule 3.22
| Ø |
Charter
Agreement |
Adventure
Three is a party to a time charter agreement with Express Sea Transport
Corporation. The agreement provides for the chartering of the “Free Envoy” for
between twelve and fourteen months commencing September, 2004. Pursuant to the
agreement, Adventure Three receives $10,530 per day for the
charter.
SCHEDULE
3.6
LITIGATION
None.
SCHEDULE
3.9(b)
OWNERSHIP
OF ASSETS; LIENS; ENCUMBRANCES
The
Company owns its vessels through its subsidiaries as follows:
Adventure
Two S.A. - “Free Destiny”
Adventure
Two owns the Free Destiny subject to a mortgage securing credit facility in the
principal amount of $5 million with Corner Banca S.A. The credit facility
requires 14 quarterly installment payments of $425,000 followed by six
additional quarterly installment payments of $266,667. The credit facility is
secured by the vessel and a pledge of all of the shares of Adventure
Two.
Adventure
Three S.A. - “Free Envoy”
Adventure
Three owns the Free Envoy subject to a mortgage securing credit facility in the
principal amount of $6 million. The credit facility is secured by pledges of the
rights and earnings under time charter contracts, rights under insurance
policies and bank balances totaling $1,250,000 in the names of ▇▇▇▇▇▇
Gourdomichalis, Ion Varouxakis and ▇▇▇▇▇▇▇ Gourdomichalis. Messrs.
Gourdomichalis, Varouxakis and Gourdomichalis also provide personal sureties for
the repayment of the facility. In addition, the facility requires that the value
of the vessel be at least 60% of the outstanding amount of the facility.
SCHEDULE
3.13
FINANCIAL
STATEMENTS
None
SCHEDULE
3.14
CERTAIN
CHANGES SINCE DECEMBER 31, 2004
None.
SCHEDULE
3.15(a)
INTELLECTUAL
PROPERTY
The
Company has no registered trademarks or copyrights. The Company potentially has
common law rights to the tradenames listed below, however, the Company has not
performed any searches or received any legal opinion as to its rights, if any,
in the listed names.
Adventure
Holdings S.A.
Adventure
Two S.A.
Adventure
Three S.A.
Free
Envoy
Free
Destiny
SCHEDULE
3.15(b)(i)
COMPUTER
SOFTWARE
None.
SCHEDULE
3.15(b)(ii)
LICENSING
AGREEMENTS RELATED TO INTELLECTUAL PROPERTY
None.
SCHEDULE
3.15(b)(iii)
INFRINGEMENT
ON INTELLECTUAL PROPERTY
None.
SCHEDULE
3.16
REAL
PROPERTY OWNED OR LEASED
None.
SCHEDULE
3.17
COMPENSATION
OF OFFICERS, DIRECTORS AND EMPLOYEES
Directors
▇▇▇▇▇▇
Gourdomichalis
Ion
Varouxakis
Stathis
Gourdomichalis
Officers
▇▇▇▇▇▇
Gourdomichalis - President
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ - Vice President
Ion
Varouxakis - Secretary
▇▇▇▇▇▇▇
Gourdomichalis - Treasurer
Employees
earning over $50,000.00
None.
SCHEDULE
3.19
RELATED
TRANSACTIONS
Each of
the Company’s subsidiaries has entered into a management contract with Free
Bulkers S.A., a company owned and operated by Adventure’s directors. Pursuant to
the management contracts, Free Bulkers is responsible for all aspects of
management and maintenance for each of the vessels.
SCHEDULE
3.22
INSURANCE
Adventure
Two S.A.
|
Name
of Insurer |
Type
of Coverage |
Amount
of Coverage(1) |
Premium(1) |
Expiration
Date |
|
Hellenic
War Risks |
War
Risks |
12/31/05 | ||
|
The
American Club |
Protection
& Indemnity |
2/20/06 | ||
|
▇▇▇▇▇▇ |
Marine
Risks |
10/3/05 | ||
|
DSI |
Hull
& Machinery |
▇▇/▇/▇▇ | ||
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇ |
▇▇▇▇
& Machinery |
10/3/05 |
Adventure
Three S.A.
|
Name
of Insurer |
Type
of Coverage |
Amount
of Coverage(1) |
Premium(1) |
Expiration
Date |
|
Hellenic
War Risks |
War
Risks Hull |
12/31/05 | ||
|
The
American Club |
Protection
& Indemnity |
2/20/06 | ||
|
▇▇▇▇▇▇ |
Marine
Risks |
10/3/05 | ||
|
DSI |
Hull
& Machinery |
▇▇/▇/▇▇ | ||
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇ |
▇▇▇▇
& Machinery |
10/3/05 |
(1) To be
supplemented after execution of the Merger Agreement.