EXHIBIT 2.1
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 Xxxxxxxx Islands
("ADVENTURE"), V Capital S.A., a corporation organized under the laws of the
Republic of the Xxxxxxxx Islands, ("V CAPITAL"), G Bros S.A., a corporation
organized under the laws of the Republic of the Xxxxxxxx Islands, ("G BROS"),
Xxxxxx X. Gourdomichalis ("G. GOURDOMICHALIS"), Stathis D. Gourdomichalis ("S.
Gourdomichalis") and Ion X. Xxxxxxxxxx ("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 $0.001 per
share (the "ADVENTURE SHARES");
WHEREAS, the parties intend that the Merger shall constitute a plan of
reorganization pursuant to Section 368 of the Code (as defined below);
WHEREAS, Trinity, on the one hand, and Adventure and the Adventure
Shareholders, on the other hand, desire to make certain representations,
warranties, covenants and other agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the parties hereto, intending to be
legally bound hereby, agree as follows:
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ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS.
Except as otherwise specified herein, the following terms, when used in
this Agreement, have the respective meanings set forth below:
"ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly Controlling, Controlled by or under common Control with
such other Person.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by Law to be closed in the City of
New York.
"CODE" means the United States Internal Revenue Code of 1986.
"CONTROL" means, as to any Person, the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. The terms "CONTROLLED"
and "CONTROLLING" shall have a correlative meaning.
"DOLLAR" or "$" 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.
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"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.
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"TRADEMARKS" means all of those trade names, trademarks, service marks,
jingles, slogans, logos, trademark and service xxxx registrations and trademark
and service xxxx 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
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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)
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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;
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(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 Xxxxxxxx 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 Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Xxxxxxxx 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.
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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 Xxxxxxxx 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
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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
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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.
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(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):
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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 Xxxxxxxx
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 Xxxxxxxx
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
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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
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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
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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 Xxxxxxxx Islands or Greece or any political subdivision or
Taxing Authority thereof or therein in connection with the issuance of the
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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.
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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
Xxxxxxxx Islands, with its port of documentation at Majuro,
Xxxxxxxx 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 Xxxxxxxx Islands, with its
port of documentation at Majuro, Xxxxxxxx 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
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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
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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").
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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 xxxx, 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
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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 Xxxxxxxx Islands be paid in United States dollars and may be
freely transferred out of the Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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.
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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
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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
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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
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.
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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/Xxxxxxx 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
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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.
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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
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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
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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 xxxxxxx "XXXXX", "XXXXX", XXXXX 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.
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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
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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/Xxxxxxx 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;
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(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
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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
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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
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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.
Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxxxxxx Xxxxxx (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").
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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.
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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,
Xxxxx Xxxxxxxx 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.
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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.
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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 Xxxxxx &
Xxxxxx 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 X.X.
Xxxx 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;
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(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/Xxxxxxx 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
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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
Xxxxxx, 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 Xxxxxxxx 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 Xxxxxxxx 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;
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(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 Xxxxxxxx
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.
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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
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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
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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
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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.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
FAX: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
FAX: (000) 000-0000
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(b) If to Adventure Holdings S.A. or to the Adventure
Shareholders, to:
x/x Xxxxxxxxx Xxxxxxxx, X.X.
00 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxx
FAX: x00-000-000000
with a copy to:
Broad and Xxxxxx
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: A. Xxxxxx Xxxxxxxx, Esq.
FAX: (000) 000-0000
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
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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.
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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.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: President
ADVENTURE HOLDINGS, S.A.
By: /s/ Xxxxxx X. Gourdomichalis
----------------------------------
Name: Xxxxxx X. Gourdomichalis
Title: President
V CAPITAL S.A.
By: /s/ Ion X. Xxxxxxxxxx
----------------------------------
Name: Ion X. Xxxxxxxxxx
Title: President
G BROS S.A.
By: /s/ Xxxxxx X. Gourdomichalis
----------------------------------
Name: Xxxxxx X. Gourdomichalis
Title: President
/s/ Xxxxxx X. Gourdomichalis
-------------------------------------
Xxxxxx X. Gourdomichalis
/s/ Stathis D. Gourdomichalis
--------------------------------------
Stathis D. Gourdomichalis
/s/ Ion X. Xxxxxxxxxx
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Ion X. Xxxxxxxxxx
S-1
