EXHIBIT 2B
SHAREHOLDER AGREEMENT
BY AND AMONG
ORBIS, INC.
TRIPLE I CORPORATION
AND
THE SHAREHOLDERS OF TRIPLE I CORPORATION
DATED AS OF AUGUST __, 1996
TABLE OF CONTENTS
Page
1. Exchange of Shares .................................................. 1
1.1 Transfer of Triple I Stock ................................. 1
1.2 Issuance of Industrial Imaging Common Stock ................ 2
1.3 Conversion of Warrants and Options ......................... 2
2. Representations and Warranties of Triple I .......................... 2
2.1 Capitalization of Triple I ................................. 2
2.2 Authorization .............................................. 3
2.3 Organization and Good Standing ............................. 3
2.4 Books and Records .......................................... 3
2.5 Financial Statements ....................................... 4
2.6 Tax Matters ................................................ 4
2.7 Title to Properties ........................................ 5
2.8 Agreements, Contracts and Commitments....................... 5
2.9 Required Consents, No Default .............................. 6
2.10 Litigation.................................................. 6
2.11 No Broker's or Finder's Fees................................ 6
2.12 Compliance with Agreements and Laws......................... 6
2.13 Employee Relations and Labor Matters........................ 7
2.14 Tort Claims................................................. 7
2.15 Disclosure.................................................. 7
3. Representations and Warranties of Orbis.............................. 7
3.1 Reincorporation and Capitalization of Orbis................. 8
3.2 Authorization............................................... 8
3.3 Organization and Good Standing.............................. 8
3.4 Books and Records........................................... 9
3.5 Financial Statements........................................ 9
3.6 Tax Matters................................................. 9
3.7 Title to Properties.........................................10
3.8 Agreements, Contracts and Commitments.......................10
3.9 Required Consents, No Default...............................11
3.10 Litigation..................................................11
3.11 No Broker's or Finder's Fees................................11
3.12 Tort Claims.................................................11
3.13 Disclosure..................................................11
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4. Representations and Warranties of the Shareholders...................12
5. Conditions to Closing................................................12
5.1 Resignation of Officers.....................................12
5.2 Opinion of Counsel..........................................13
5.3 Accuracy of Representations and Warranties and Performance
of Obligation by Triple I and Orbis.........................13
5.4 Legal Proceedings...........................................13
5.5 Orbis Stockholder Approval..................................13
6. Provisions for Indemnification.......................................13
7. Termination..........................................................14
8. Tax Consequences.....................................................14
9. Entire Agreement.....................................................14
10. Waiver ............................................................15
11. Severability.........................................................15
12. Governing Law........................................................15
13. Binding Agreement....................................................15
14 Counterparts.........................................................15
15. Assignment...........................................................15
16. Arbitration..........................................................15
17. Counsel ............................................................15
Exhibit A List of Triple I Shareholders
Exhibit B Triple I's Master Schedule
Exhibit C Outstanding Options and Warrants of Triple I
Exhibit D Orbis Master Schedule
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SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement (the "Agreement") is made and entered into
as of the ___th day of December, 1996 (the "Effective Date") by and among Orbis,
Inc. ("Orbis" or its successor corporation Industrial Imaging Corporation) a
Rhode Island corporation and the shareholders of Triple I Corporation, a
Delaware Corporation ("Triple I"), which are listed in Exhibit A (collectively,
the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders own all of the issued and outstanding capital
stock of Triple I Corporation, a Delaware corporation with its principal place
of business at One Xxxxxx Research Center, 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000; and
WHEREAS, Orbis shall reincorporate under Delaware corporate law and
change its name to Industrial Imaging Corporation ("Industrial Imaging");
WHEREAS, Industrial Imaging will have authority to issue 20,000,000
shares of Common Stock, $.01 par value, of Industrial Imaging (the "Industrial
Imaging Common Stock"), 525,000 shares of which will be issued and outstanding
immediately prior to the date of the Exchange (as defined below);
WHEREAS, the Shareholders believe that it is in each of their best
interests to exchange all of Triple I outstanding Common Stock, $.01 par value
(the "Triple I Stock") for Industrial Imaging Common Stock (the "Exchange"); and
WHEREAS, the Board of Directors of Industrial Imaging (as the successor
corporation of Orbis), by resolutions duly adopted, has approved this Agreement
and the issuance of a total of 5,000,237 shares of Industrial Imaging Common
Stock to the Shareholders in the amounts as hereinafter described;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, Orbis, Triple I and the Shareholders agree as follows:
1. EXCHANGE OF SHARES
1.1. Transfer of Triple I Stock. The Exchange shall be effective upon
the ratification of this Agreement by Orbis shareholders, the reincorporation of
Orbis as a Delaware corporation under the name of Industrial Imaging and the
approval by each Shareholder of this Agreement as indicated by their signature
hereto. Each Shareholder shall deliver the certificate evidencing their Triple I
Stock to a representative of Triple I's legal counsel, X'Xxxxxx, Xxxxxx &
Xxxxxxx, as agent (the "Exchange Agent"). The Exchange Agent shall mail to any
Shareholder who has not duly surrendered his Triple I Stock certificates as of
the Effective Date, a letter of transmittal, together
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with instructions on how to surrender such Triple I Stock certificates to the
Exchange Agent. Upon receiving these instructions, each holder of an outstanding
certificate who has not previously delivered his Triple I Stock certificates
shall surrender them to the Exchange Agent.
1.2. Issuance of Industrial Imaging Common Stock. On the Effective
Date, Industrial Imaging shall issue to each Shareholder who has surrendered his
Triple I Stock certificates, as described in the Section 1, one share of
Industrial Imaging Common Stock for each share of Triple I Stock. All shares of
Industrial Imaging Common Stock to be issued on the Effective Date will be
deemed issued as of the Effective Date. Triple I Stock shall be deemed to be
cancelled whether or not the certificates have been surrendered or otherwise
accounted for.
Holders of Triple I Stock will not receive any dividends or
distributions with respect to shares of Industrial Imaging Common Stock which
may be declared or payable following the Effective Date to holders of record of
Industrial Imaging Common Stock until and unless they surrender their Triple I
Stock certificates to the Exchange Agent. Former holders of Triple I Stock will
be entitled to exercise all rights of holders of shares of Industrial Imaging
Common Stock without having to surrender their stock certificates, except the
right to receive dividends or distributions.
1.3. Conversion of Warrants and Options. At the Effective Date, by
virtue of the Exchange and without any action on the part of the holder thereof
each option and/or warrant to purchase Triple I Common Stock outstanding
immediately prior to the Effective Date shall be changed and converted into an
option and/or warrant to purchase Industrial Imaging Common Stock on the basis
of the following ratio:
(a) An option to purchase one (1) share of Triple I Common Stock shall
be converted into an option to purchase one (1) share of Industrial Imaging
Common Stock.
(b) A warrant to purchase one (1) shares of Triple I Common Stock shall
be converted into a warrant to purchase one (1) share of Industrial Imaging
Common Stock.
2. REPRESENTATIONS AND WARRANTIES OF TRIPLE I.
Triple I represents and warrants to Industrial Imaging, upon which
representations and warranties Industrial Imaging shall be entitled to rely
regardless of any investigation by Industrial Imaging of the affairs of Triple
I, as follows (as supplemented by any referenced exhibit or on the Triple I's
Master Schedule dated as of August 1, 1996 listed in Exhibit B (the "Triple I's
Master Schedule"):
2.1 Capitalization of Triple I. Triple I's authorized capital stock
consists of 8,700,000 shares of Common Stock, $.01 par value per share, of which
5,000,787 shares are issued and outstanding on the date hereof, 1,000,000 shares
of Series A Preferred Stock, $.01 par value per share, of which no shares are
issued and outstanding on the date hereof, and 300,000 shares of Series
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B Preferred Stock, $.01 par value per share, of which no shares are issued and
outstanding on the date hereof. All such issued and outstanding shares of Common
Stock have been duly and validly issued and are fully paid and non-assessable.
All outstanding options, warrants or other rights to purchase from Triple I any
capital stock of Triple I are listed on Exhibit C.
2.2 Authorization. This Agreement has been duly and validly executed
and delivered by Triple I. Subject to the approval of the Agreement by the
Shareholders, this Agreement constitutes, and, when executed and delivered at
the Closing, all other agreements entered into in connection with the
transactions contemplated hereby to which Triple I is a party will constitute,
the valid and legally binding obligations of Triple I, enforceable against it in
accordance with their respective terms except insofar as enforceability may be
limited by bankruptcy, insolvency, or similar laws affecting the rights of
creditors and general equitable principles. The execution, delivery and
performance by Triple I of this Agreement and the agreements provided for
herein, and the consummation by Triple I of the transactions contemplated hereby
and thereby, will not, with or without the giving of notice or the passage of
time or both, (a) violate the provisions of any law, rule or regulation
applicable to Triple I; (b) violate the provisions of the Certificate of
Incorporation or Bylaws of Triple I; (c) violate any judgment, decree, order or
award of any court, governmental body or arbitrator; or (d) conflict with or
result in the breach or termination of any term or provision of, or constitute a
default under, or cause any acceleration under or the creation of any
indebtedness, contract, lease, license, permit, lien, charge or encumbrance upon
the properties or assets of Triple I pursuant to, any indenture, mortgage, deed
of trust or other instrument or agreement to which Triple I is a party or by
which Triple I or any of its properties is or may be bound, subject to the
consent requirements described in Triple I's Master Schedule.
2.3 Organization and Good Standing. Triple I is a corporation duly
organized, validly existing and in good standing under the laws of the Delaware
and has all requisite power and authority (corporate and other) to own its
properties and to carry on its business as now being conducted. Except as
disclosed in Triple I's Master Schedule, Triple I is duly qualified to do
business and in good standing in all jurisdictions in which its ownership of
property or the character of its business requires such qualification and where
failure to be so qualified would have an adverse effect on Triple I. Neither
Triple I nor any of its officers or directors are subject to any agreement,
commitment or understanding which restricts or may restrict the conduct of
Triple I's business in any jurisdiction or location. The copies of the
Certificate of Incorporation and Bylaws of Triple I previously delivered to
Industrial Imaging are complete and correct.
2.4 Books and Records. The minute books of Triple I produced for
Industrial Imaging's review contain an accurate record of all meetings and other
corporate action of the Triple I Shareholders and the Board of Directors of
Triple I. The stock ledgers of Triple I produced for Industrial Imaging's review
contain an accurate record of the holdings of the stock issued by Triple I and
all transfers in connection therewith.
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2.5 Financial Statements.
(a) Triple I's Financial Statements. Triple I has delivered to
Industrial Imaging true and complete copies of its Balance Sheets as of
September 31, 1995 and related Statements of Operations, Stockholders' Equity
and Cash Flows, all of which have been audited by Coopers & Xxxxxxx L.L.P. as
set forth in their report thereon, and its unaudited Balance Sheet as of March
31, 1996 and related Statement of Operations for the six months then ended
(collectively, the "Financial Statements"). Except as described in Triple I's
Master Schedule, all Financial Statements are in accordance with the books and
records of Triple I, and (i) present fairly the financial position and results
of operations of Triple I as of the respective dates and for the respective
periods indicated, (ii) include all adjustments required to fairly reflect the
financial condition of Triple I and, (iii) have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
prior periods and practices; provided, however, that the interim financial
statements as of and for the six months ended March 31, 1996 have been prepared
in accordance with Triple I's normal practices for internal management reporting
purposes and accordingly certain items may not be classified in a manner
consistent with the generally accepted accounting principles followed in the
preparation of Triple I's audited financial statements and such interim
financial statements do not include the notes required by generally accepted
accounting principles.
(b) No Adverse Changes or Undisclosed Liabilities. Except as
disclosed in Triple I's Master Schedule, since March 31, 1996, there has not
occurred or arisen, whether or not in the ordinary course of business any
material adverse change in the assets or financial condition of Triple I or any
adverse change in the operation or business of Triple I. Triple I has no
liabilities or obligations, fixed, accrued, contingent or otherwise, which are
required to be reflected on financial statements prepared in accordance with the
generally accepted accounting principles as set forth in the Financial
Statements and which are not fully reflected or provided for on, or disclosed in
the notes to, the Financial Statements, where applicable, except liabilities and
obligations incurred in the ordinary course of business since March 31, 1996,
none of which individually or in the aggregate has been or is adverse to the
operations, business, financial condition or prospects of Triple I.
2.6 Tax Matters.
(a) Except as disclosed on Triple I's Master Schedule, Triple
I has paid (and, as to any of the following which are payable after the
Effective Date, Triple I has properly reserved against in accordance with
generally accepted accounting principles) all income taxes, capital gains taxes,
payroll and withholding taxes, capital taxes, sales and use taxes, goods and
services taxes, business taxes, ad valorem taxes, property taxes, excise taxes,
customs and import duties, rates, levies, assessments and fees, and all other
taxes of every kind, character or description, including all interest, fines,
and penalties relating thereto, imposed by any governmental or
quasi-governmental authority, domestic or foreign, whether federal, state,
territorial or municipal (collectively, the "Taxes") required to be paid by
Triple I for all periods prior to the Effective Date. No outstanding
assessments, reassessments, Notices of Determination, or notices of any kind
whatsoever with respect to any such Taxes exist or could become a lien on the
properties or assets of Triple I. Except
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as disclosed on Triple I's Master Schedule, Triple I has duly and timely filed
or caused to be filed all reports, returns and other documents relating to or
covering all such Taxes, which are due or required to be filed at or prior to
the date of Effective Date, and the Taxes or applicable amount shown thereon
have been timely accrued and paid. No such filings have contained any
misstatement or omitted any statement of any fact that should have been included
therein.
2.7 Title to Properties. Except as disclosed in Triple I's Master
Schedule, Triple I has good and marketable title to all of its properties and
assets reflected in the Financial Statements or acquired since March 31, 1996,
except properties and assets disposed of in the ordinary course of business
since the date thereof, and none of such properties or assets is subject to any
mortgage, pledge, lien, security interest, lease, charge, encumbrance,
objection, claim or joint ownership. To its knowledge, Triple I is not in
violation of any applicable zoning laws or in violation of any other local,
state or federal laws and regulations affecting the use and occupancy of such
property, which violation would have a material adverse effect on Triple I.
2.8 Agreements, Contracts and Commitments. Except as shown on Triple
I's Master Schedule, Triple I is not a party to or liable in connection with and
has not made or granted any oral or written:
(a) Note, loan, credit, security or guaranty agreement or
other obligation relating to the borrowing of money;
(b) license agreement, or sales representative, distributor,
franchise, advertising or property management agreement;
(c) agreement for the future purchase by Triple I of any
material, equipment, services or supplies in an amount in excess of $25,000 in
any instance or $100,000 in the aggregate, other than purchase orders issued by
Triple I in the ordinary course of business for components and supplies used in
the manufacture and service of its products;
(d) agreement for the future sale by Triple I of any
materials, equipment, services or supplies in an amount in excess of $25,000 in
any instance or $100,000 in the aggregate, other than purchase orders for Triple
I products and services received by Triple I from customers in the ordinary
course of business;
(e) agreement, not elsewhere specifically disclosed pursuant
to this Agreement, involving, or providing any benefit to, any officer,
director, employee or stockholder of Triple I;
(f) agreement or arrangement for the sale of any of its assets
or the grant of any preferential rights to purchase any of its assets, property
or rights or requiring the consent of any party to the transfer and assignment
of such assets, property or rights, other than purchase orders for ETO products
in the ordinary course of business;
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(g) any contracts, agreements or other arrangements imposing a
non-competition or non-solicitation obligation on Triple I; and
(h) any other agreement, whether or not in the ordinary course
of business, which is not otherwise disclosed in this Agreement and which (i)
can reasonably be expected to require the payment to or by Triple I of more than
$25,000 in the aggregate for all such agreements in any period of 12 months or
(ii) has a remaining term of more than six months and cannot be terminated by
Triple I on 60 days' or less notice.
All agreements listed on Triple I's Master Schedule are valid and in
full force and effect, unless otherwise indicated therein.
2.9 Required Consents, No Default. Except as described in Triple I's
Master Schedule, neither the execution and delivery of this Agreement nor the
consummation of the Exchange, nor compliance by Triple I with its terms and
provisions will require the affirmative consent, approval, order or
authorization of or any registration, declaration or filing with any third party
or governmental authority, the failure to obtain which would have an adverse
effect on the Surviving Corporation after the Effective Date. Triple I is not in
default under or in violation of any provision of its Certificate of
Incorporation or Bylaws. Triple I is not in default under or in violation of any
provision of any indenture, mortgage, lease, loan or other agreement to which it
is a party or is bound or to which its properties are subject, which default or
violation would have an adverse effect on Triple I's business.
2.10 Litigation. There is no action, suit or proceeding to which
Triple I is a party (either as a plaintiff or defendant or otherwise) pending
or, to Triple I's knowledge, threatened before any court or governmental agency,
authority, body or arbitrator, and Triple I is not aware of any basis for any
such action, suit or proceeding. Neither Triple I nor any officer, director or
employee of Triple I has been permanently or temporarily enjoined by any order,
judgment or decree of any court or any governmental agency, authority or body
from engaging in or continuing any conduct or practice in connection with the
business, assets, or properties of Triple I. There is not in existence on the
date hereof any order, judgment or decree of any court, tribunal or agency
enjoining or requiring Triple I to take any action of any kind with respect to
its business, assets or properties.
2.11 No Broker's or Finder's Fees. No agent, broker, investment
banker, person or firm acting on behalf of Triple I or any of its affiliates or
under the authority of any of them is or will be entitled to any broker's or
finder's fee or any other commission or similar fee directly or indirectly in
connection with any of the transactions contemplated herein.
2.12 Compliance with Agreements and Laws. Triple I has all required
licenses, permits and certificates, including health and safety permits, from
federal, state and local authorities necessary to conduct its business as
currently conducted the failure to have which, individually or collectively,
would have an adverse effect on its business or assets (collectively, the
"Permits"). To the best of Triple I's knowledge, the business of Triple I as
conducted through the date hereof has
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not violated any federal, state, local or foreign laws, regulations or orders
(including, but not limited to, any of the foregoing relating to employment
discrimination, occupational safety, conservation, or corrupt practices), the
enforcement of which would have an adverse effect on the business of Triple I.
Triple I has had no notice or communication from any federal, state or local
governmental or regulatory authority or otherwise of any such violation or
noncompliance.
2.13 Employee Relations and Labor Matter.
(a) Triple I is in compliance with all federal, state and
municipal laws regarding employment, employment practices, terms and conditions
of employment and wages and hours, the failure of which would, individually or
collectively, have an adverse effect on Triple I's business or assets, and it is
not engaged in any unfair labor practice, and there are no arrears in the
payment of wages or social security taxes.
(b) None of the employees of Triple I is represented by any
labor union, nor does Triple I have any agreements, whether directly or
indirectly, with any labor union, employee association or other similar entity.
Triple I has not made commitments to or conducted negotiations with any labor
union or employee association or similar entity with respect to any future
agreements. No trade union, employee association or other similar entity has any
bargaining rights acquired by either certification or voluntary recognition with
respect to the employees of Triple I. There is no unfair labor practice
complaint against Triple I pending before any federal, state or local agency.
There is no pending labor strike or other material labor trouble affecting
Triple I (including, without limitation, any organizational drive).
(c) Triple I is in compliance with all applicable and material
provisions of the Federal Fair Labor Standards Act or any similar state statute
and all rules and regulations under each, the failure of which would,
individually or collectively, have an adverse effect on Triple I's business or
assets.
2.14 Tort Claims. Except as disclosed in Triple I's Master Schedule,
there are no personal injury, property damage or other tort claims made against
ETO, not including service calls, and all accidents known to Triple I which
could reasonably be expected to give rise to such a claim.
2.15 Disclosure. The representations and warranties by Triple I in
this Agreement, including the certificates, Exhibits and Schedules furnished by
Triple I do not contain any untrue or misleading statement of a material fact or
omit to state a material fact reasonably related to the transactions covered by
this Agreement, and all such representations and warranties are and on the
Effective Date will be accurate and complete in all material respects.
3. REPRESENTATIONS AND WARRANTIES OF ORBIS.
Orbis represents and warrants to the Shareholders and Triple I, upon
which representations and warranties the Shareholders and Triple I shall be
entitled to rely regardless of any investigation
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by Shareholders and Triple I of the affairs of Orbis (and its successor
corporation Industrial Imaging), as follows (as supplemented by any referenced
exhibit or on Orbis's master schedule dated as of August 1, 1996 listed in
Exhibit D (the "Orbis Master Schedule"):
3.1 Reincorporation and Capitalization of Orbis. As of the Effective
Date, Orbis will have (i) reincorporated as a Delaware corporation, (ii) changed
its name to Industrial Imaging, and (iii) authorized capital stock will consist
of 20,000,000 shares of Common Stock, $.01 par value per share, of which 525,000
shares are issued and outstanding, and 1,000,000 shares of Preferred Stock, $.01
par value per share, of which no shares are issued and outstanding. Orbis shall
also have authorized a 1996 Stock Option Plan with _____ shares reserved for
issuance under the plan. All such issued and outstanding shares of Common Stock
have been duly and validly issued and are fully paid and non-assessable. Except
as provided in Orbis's Master Schedule, there are no outstanding options,
warrants or other rights to purchase from Orbis any capital stock of Orbis.
3.2 Authorization. This Agreement has been duly and validly executed
and delivered by Orbis. This Agreement constitutes, and, when executed and
delivered on the Effective Date, all other agreements entered into in connection
with the transactions contemplated hereby to which Orbis is a party will
constitute, the valid and legally binding obligations of Orbis, enforceable
against it in accordance with their respective terms except insofar as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the rights of creditors and general equitable principles. The
execution, delivery and performance by Orbis of this Agreement and the
agreements provided for herein, and the consummation by Orbis of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to Orbis; (b) violate the provisions of
the Certificate of Incorporation or Bylaws of Orbis; (c) violate any judgment,
decree, order or award of any court, governmental body or arbitrator; or (d)
conflict with or result in the breach or termination of any term or provision
of, or constitute a default under, or cause any acceleration under or the
creation of any indebtedness, contract, lease, license, permit, lien, charge or
encumbrance upon the properties or assets of Orbis pursuant to, any indenture,
mortgage, deed of trust or other instrument or agreement to which Orbis is a
party or by which Orbis or any of its properties is or may be bound.
3.3 Organization and Good Standing. Orbis is (and as of the Effective
Date, Industrial Imaging will be) a corporation duly organized, validly existing
and in good standing under the laws of its State of incorporation and has all
requisite power and authority (corporate and other) to own its properties and to
carry on its business as now being conducted. Except as disclosed in the Orbis's
Master Schedule, Orbis is duly qualified to do business and in good standing in
all jurisdictions in which its ownership of property or the character of its
business requires such qualification and where failure to be so qualified would
have an adverse effect on Orbis. Neither Orbis nor any of its officers or
directors are subject to any agreement, commitment or understanding which
restricts or may restrict the conduct of Orbis's business in any jurisdiction or
location. The copies of the Certificate of Incorporation and Bylaws of Orbis
previously delivered to Triple I are complete and correct.
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3.4 Books and Records. The minute books of Orbis produced for Triple
I's review contain an accurate record of all meetings and other corporate action
of the Orbis stockholders and the Board of Directors of Orbis. The stock ledgers
of Orbis produced for Triple I's review contain an accurate record of the
holdings of the stock issued by Orbis and all transfers in connection therewith.
3.5 Financial Statements.
(a) Orbis's Financial Statements. Orbis has delivered to
Triple I true and complete copies of its Balance Sheets as of March 31, 1996 and
related Statements of Operations, Stockholders' Equity and Cash Flows, all of
which have been audited by Cager, Prescott, Xxxxx & Xxxxxxxxxx as set forth in
their report thereon, (collectively, the "Financial Statements"). Except as
described in the Orbis Master Schedule, all Financial Statements are in
accordance with the books and records of Orbis, and (i) present fairly the
financial position and results of operations of Orbis as of the respective dates
and for the respective periods indicated, (ii) include all adjustments required
to fairly reflect the financial condition of Orbis and, (iii) have been prepared
in accordance with generally accepted accounting principles applied on a basis
consistent with prior periods and practices.
(b) No Adverse Changes or Undisclosed Liabilities. Except as
disclosed in Master Schedule, since March 31, 1996, there has not occurred or
arisen, whether or not in the ordinary course of business any material adverse
change in the assets or financial condition of Orbis or any adverse change in
the operation or business of Orbis. Orbis has no liabilities or obligations,
fixed, accrued, contingent or otherwise, which are required to be reflected on
financial statements prepared in accordance with the generally accepted
accounting principles as set forth in the Financial Statements and which are not
fully reflected or provided for on, or disclosed in the notes to, the Financial
Statements, where applicable, except liabilities and obligations incurred in the
ordinary course of business since March 31, 1996, none of which individually or
in the aggregate has been or is adverse to the operations, business, financial
condition or prospects of Orbis.
3.6 Tax Matters.
Except as disclosed on the Orbis Master Schedule, Orbis has
paid (and, as to any of the following which are payable after the Effective
Date, Orbis has properly reserved against in accordance with generally accepted
accounting principles) all income taxes, capital gains taxes, payroll and
withholding taxes, capital taxes, sales and use taxes, goods and services taxes,
business taxes, ad valorem taxes, property taxes, excise taxes, customs and
import duties, rates, levies, assessments and fees, and all other taxes of every
kind, character or description, including all interest, fines, and penalties
relating thereto, imposed by any governmental or quasi-governmental authority,
domestic or foreign, whether federal, state, territorial or municipal
(collectively, the "Taxes") required to be paid by Orbis for all periods prior
to the Effective Date. No outstanding assessments, reassessments, Notices of
Determination, or notices of any kind whatsoever with respect to any such Taxes
exist or could become a lien on the properties or assets of Orbis. Except
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as disclosed on the Orbis Master Schedule, Orbis has duly and timely filed or
caused to be filed all reports, returns and other documents relating to or
covering all such Taxes, which are due or required to be filed at or prior to
the date of Effective Date, and the Taxes or applicable amount shown thereon
have been timely accrued and paid. No such filings have contained any
misstatement or omitted any statement of any fact that should have been included
therein.
3.7 Title to Properties. Except as disclosed in the Orbis Master
Schedule, Orbis has good and marketable title to all of its properties and
assets reflected in the Financial Statements or acquired since March 31, 1996,
except properties and assets disposed of in the ordinary course of business
since the date thereof, and none of such properties or assets is subject to any
mortgage, pledge, lien, security interest, lease, charge, encumbrance,
objection, claim or joint ownership.
3.8 Agreements, Contracts and Commitments. Except as shown on the
Orbis Master Schedule, Orbis is not a party to or liable in connection with and
has not made or granted any oral or written:
(a) Note, loan, credit, security or guaranty agreement or
other obligation relating to the borrowing of money;
(b) license agreement, or sales representative, distributor,
franchise, advertising or property management agreement;
(c) agreement for the future purchase by Orbis of any
material, equipment, services or supplies in an amount in excess of $25,000 in
any instance or $100,000 in the aggregate, other than purchase orders issued by
Orbis in the ordinary course of business for components and supplies used in the
manufacture and service of its products;
(d) agreement for the future sale by Orbis of any materials,
equipment, services or supplies in an amount in excess of $25,000 in any
instance or $100,000 in the aggregate, other than purchase orders for Orbis
products and services received by Orbis from customers in the ordinary course of
business;
(e) agreement, not elsewhere specifically disclosed pursuant
to this Agreement, involving, or providing any benefit to, any officer,
director, employee or stockholder of Orbis;
(f) agreement or arrangement for the sale of any of its assets
or the grant of any preferential rights to purchase any of its assets, property
or rights or requiring the consent of any party to the transfer and assignment
of such assets, property or rights, other than purchase orders for ETO products
in the ordinary course of business;
(g) any contracts, agreements or other arrangements imposing a
non-competition or non-solicitation obligation on Orbis; and
10
(h) any other agreement, whether or not in the ordinary course
of business, which is not otherwise disclosed in this Agreement and which (i)
can reasonably be expected to require the payment to or by Orbis of more than
$25,000 in the aggregate for all such agreements in any period of 12 months or
(ii) has a remaining term of more than six months and cannot be terminated by
Orbis on 60 days' or less notice.
All agreements listed on Master Schedule are valid and in full force and effect,
unless otherwise indicated therein.
3.9 Required Consents, No Default. Except as described in the Orbis
Master Schedule, neither the execution and delivery of this Agreement nor the
consummation of the Exchange, nor compliance by Orbis with its terms and
provisions will require the affirmative consent, approval, order or
authorization of or any registration, declaration or filing with any third party
or governmental authority, the failure to obtain which would have an adverse
effect on the Surviving Corporation after the Effective Date. Orbis is not in
default under or in violation of any provision of its Certificate of
Incorporation or Bylaws. Orbis is not in default under or in violation of any
provision of any indenture, mortgage, lease, loan or other agreement to which it
is a party or is bound or to which its properties are subject, which default or
violation would have an adverse effect on Orbis's business.
3.10 Litigation. There is no action, suit or proceeding to which Orbis
is a party (either as a plaintiff or defendant or otherwise) pending or, to
Orbis's knowledge, threatened before any court or governmental agency,
authority, body or arbitrator, and Orbis is not aware of any basis for any such
action, suit or proceeding. Neither Orbis nor any officer, director or employee
of Orbis has been permanently or temporarily enjoined by any order, judgment or
decree of any court or any governmental agency, authority or body from engaging
in or continuing any conduct or practice in connection with the business,
assets, or properties of Orbis. There is not in existence on the date hereof any
order, judgment or decree of any court, tribunal or agency enjoining or
requiring Orbis to take any action of any kind with respect to its business,
assets or properties.
3.11 No Broker's or Finder's Fees . No agent, broker, investment
banker, person or firm acting on behalf of Orbis or any of its affiliates or
under the authority of any of them is or will be entitled to any broker's or
finder's fee or any other commission or similar fee directly or indirectly in
connection with any of the transactions contemplated herein.
3.12 Tort Claims. Except as disclosed in the Orbis's Master Schedule,
there are no personal injury, property damage or other tort claims made against
Orbis, not including service calls, and all accidents known to Orbis which could
reasonably be expected to give rise to such a claim.
3.13 Disclosure. The representations and warranties by Orbis in this
Agreement, including the certificates, Exhibits and Schedules furnished by Orbis
do not contain any untrue or misleading statement of a material fact or omit to
state a material fact reasonably related to the transactions
11
covered by this Agreement, and all such representations and warranties are and
on the Effective Date will be accurate and complete in all material respects.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS.
Each of the Shareholders represents and warrants to Industrial Imaging,
jointly and severally, upon which representations and warranties Orbis relies,
and which representations and warranties shall survive the Closing,
notwithstanding any investigation of the affairs by Orbis (and its successor
Industrial Imaging), as follows:
4.1 The Shareholders have full power and authority to execute and
deliver this Agreement and consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by each
of the Shareholders and no other actions or proceedings on the part of the
Shareholders are necessary to consummate the transactions so contemplated. This
Agreement has been duly and validly executed and delivered by each of the
Shareholders and constitutes the valid and legally binding obligation of each of
the Shareholders and enforceable against each of them in accordance with its
terms, subject only as to enforcement to general equitable principles and to
bankruptcy, insolvency, reorganization, moratorium, or similar laws of general
application affecting the rights and remedies of creditors.
4.2 In connection with the receipt by each of the Shareholders of any
and all of the Industrial Imaging Common Stock that such Stockholder may receive
pursuant to this Agreement, each Stockholder acknowledges by their signature
that the Common Stock is not being registered under the Securities Act of 1933,
as amended (the "Securities Act"), on the basis of a statutory exemption that is
based in part on the representations made by the Shareholders in connection with
this Agreement.
Each Stockholder shall warrant and represent in writing that (a) he or
it is acquiring such Common Stock for his or its own account and not with a view
to reselling or otherwise distributing such shares in violation of any relevant
federal or state securities laws; (b) he or it does not intend to resell or
otherwise dispose of such shares unless and until a registration statement under
the Securities Act is then in effect with respect to such shares or an exemption
from the registration requirements of the Securities Act is then in fact
applicable to such transfer; and (c) any and all stock certificates evidencing
ownership of any Common Stock shall bear any legends that counsel for Industrial
Imaging deem, in their sole opinion, to be required by state or federal law.
5. CONDITIONS TO CLOSING.
5.1 Resignation of Officers. The Officers of Orbis, on the Effective
Date, shall deliver their resignations, all of which resignations shall take
effect on the Effective Date. The new officers of Industrial Imaging shall
thereafter be appointed by the Board of Directors of Industrial Imaging.
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5.2 Opinion of Counsel. Triple I shall have received from counsel to
Orbis, an opinion, dated the Effective Date, in form and substance satisfactory
to the Shareholders as to the matters described in Exhibit E.
5.3 Accuracy of Representations and Warranties and Performance of
Obligations by Triple I and Orbis. The representations and warranties of Triple
I and Orbis (applying to both Orbis and its successor corporation Industrial
Imaging) set forth in Section 3 shall be true and correct in all material
respects on the Effective Date, with the same effect as though made at such
time, except for changes expressly contemplated by this Agreement. Orbis shall
have performed all obligations and complied with all covenants and conditions
required by this Agreement to be performed or complied with by it prior to the
Effective Date. Triple I and Orbis shall have received certificates from
authorized officers of the other company as to the fulfillment of the conditions
set forth in this Section 5.3.
5.4 Legal Proceedings. No action or proceeding by or before any court
or any governmental body shall have been instituted or threatened to restrain,
prohibit or invalidate the transactions contemplated by this Agreement which
might affect the right of the Shareholders and Triple I to own, operate or
control Industrial Imaging after the Effective Date or which, either
individually or in the aggregate, might be materially adverse to the operations,
business, financial condition or prospects of Industrial Imaging.
5.5 Orbis Stockholder Approval. The Orbis stockholders shall have
approved the Exchange as described in Section 1.
6. PROVISIONS FOR INDEMNIFICATION
6.1 In the manner and to the extent provided in this Section 6, Triple
I and Industrial Imaging shall be defended, indemnified and held harmless from
and against any and all damages, losses and expenses (including reasonable legal
and other costs and expenses arising from or in connection with any action,
suit, proceeding, claim or investigation) suffered or incurred by either of them
or by any of their officers, directors, successor or assigns resulting from (i)
any breach of a representation or warranty of Orbis in this Agreement or any
Schedule or certificate thereto, (ii) any failure by Orbis to perform any
covenant made by it in this Agreement, and (iii) all awards, judgments or
settlements arising from or in connection with any action, suit, proceeding or
claim by any third party as a consequence of any such breach or failure.
6.2 Triple I, its directors, officers, employees or agents, if claiming
a right to indemnification under the provisions of this Section 6 (hereinafter,
the "Indemnitee"), shall give prompt written notice to the Orbis of each claim
for indemnification hereunder, specifying the amount and nature of the claim,
and of any matter which, in the opinion of the claiming party, is likely to give
rise to an indemnification claim. The party against whom such indemnity is
sought to be recovered (hereinafter, the "Indemnitor") shall have the right to
undertake and control the defense and settlement (so long as such settlement
imposes no financial or other obligation upon Triple I or its
13
directors, officers, employees or agents) of any such matter at Indemnitor's
sole expense and through legal counsel acceptable to Indemnitee, provided that
Indemnitor proceeds in good faith, expeditiously and diligently. Indemnitee
shall, at its option and expense, have the right to participate in any defense
undertaken by Indemnitor, with legal counsel of its own selection. No settlement
or compromise may be made by Indemnitor without the prior written consent of
Indemnitee unless (i) prior to such settlement or compromise Indemnitor
acknowledges in writing Indemnitor's obligation to pay in full the amount of the
settlement or compromise and all associated expenses and (ii) Indemnitee is
furnished with security reasonably satisfactory to Indemnitee that Indemnitor
will in fact pay such amount and expenses.
6.3 Orbis shall pay to Indemnities the amount of established claims for
indemnification within fifteen (15) days after the establishment thereof.
Indemnities may set off the amount of any established claim due to it from the
Orbis against Indemnities any Deficiency Payment due to the Shareholders.
6.4 No claim for indemnification provided in this Section 6 shall be
made more than 36 months (or, if longer, the applicable statute of limitations
period with respect to tax matters) following the Effective Date.
6.5 Any remedies of the indemnitees shall be cumulative and not
exclusive.
7. TERMINATION.
This Agreement may be terminated by Orbis or Triple I, in its sole
discretion, upon the occurrence of any of the following circumstances, by
written notice given to the non-terminating party on or before the Effective
Date:
(a) A breach by the non-terminating party of any representation,
warranty, covenant or other agreement contained herein; or
(b) If any condition to its obligations is not fulfilled on or before
the Effective Date.
Notwithstanding the foregoing, the parties may terminate this agreement
at any time upon their mutual written agreement.
8. TAX CONSEQUENCES. The Exchange is intended to qualify as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended (the "Code").
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the
Shareholders and the Company with respect to the subject matter hereof and
supersedes any and all prior oral or written communications, understanding or
agreements concerning the subject matter hereof. This Agreement may be amended
or modified only by a written instrument signed by all of the Shareholders and
an officer of the Company.
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10. WAIVER. No waiver of any right under this Agreement shall be deemed
effective unless contained in a writing signed by the Shareholder charged with
such waiver, and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future such right or of any other
right arising under this Agreement.
11. SEVERABILITY. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision. If
any provision of this Agreement is or becomes or is deemed invalid, illegal or
unenforceable to the maximum extent permissible in any jurisdiction, such
provision shall be deemed amended to conform to applicable laws so as to be
valid and enforceable or, if it cannot be so amended without materially altering
the intention of the parties, it shall be stricken and the remainder of this
Agreement shall remain in full force and effect.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
13. BINDING AGREEMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives and
successors.
14. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original.
15. ASSIGNMENT. No Shareholder may assign this Agreement or his rights hereunder
without the other Shareholders' written consent, which consent may be withheld
at the non-assigning Shareholders' sole discretion.
16. ARBITRATION. Any dispute concerning this Agreement including but not limited
to, its existence, validity, interpretation, performance or non-performance,
arising before or after termination or expiration of this Agreement, shall be
settled by a single arbitrator in Boston, Massachusetts, in accordance with the
rules then in effect of the American Arbitration Association. Judgment upon any
award may be entered in any court of competent jurisdiction. The cost of such
arbitration shall borne equally between the parties thereto unless otherwise
determined by such arbitrator.
17. COUNSEL. Each of the parties acknowledges and confirms that each has had the
opportunity to secure advice, counsel and suggestions from professional persons
of such party's choosing in connection with this Agreement and related matters.
15
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
on this ___ day of December, 1996.
ATTEST: ORBIS, INC.
By:
---------------------------- ----------------------------
Xxxxxxxx Xxxxxxxx, President
ATTEST: TRIPLE I CORPORATION
By:
---------------------------- ----------------------------
Xxxx X. Xxxxxx, Ph.D., President
TRIPLE I SHAREHOLDERS
WITNESS: XXXX X. XXXXXX, Ph.D.
---------------------------- ------------------------------
WITNESS: XXXXXX XXXXXXXX
---------------------------- ------------------------------
ATTEST: CENTENNIAL TECHNOLOGIES
By:
---------------------------- ----------------------------
Xxxxxxx Xxxxx, President
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WITNESS: XXXXXXX RIVER MORTGAGE
COMPANY, INC.
By:
---------------------------- ----------------------------
WITNESS: XXXXXX XXXXX
---------------------------- ----------------------------
WITNESS: CRESENT CAPITAL COMPANY, LLC
By:
---------------------------- ----------------------------
WITNESS: EZREIL DIAMOND
---------------------------- ----------------------------
WITNESS: XXXXXXX X. XXXXX XX.
---------------------------- ----------------------------
WITNESS: S. XXXXXX XXXXXX
---------------------------- ----------------------------
WITNESS: XXXXXXXX X. XXXXXXXXXXX
---------------------------- ----------------------------
17
WITNESS: XXXXXX X. XXXXXXX AND XXXXXX X.
XXXXXXX, JTWROS
By:
---------------------------- ----------------------------
WITNESS: XXXXX X. XXXXX
---------------------------- ----------------------------
WITNESS: XXXXX X. XXXX
---------------------------- ----------------------------
WITNESS: XXXXX XXX
---------------------------- ----------------------------
WITNESS: XXXXX & XXXXX XXXX, JTWROS
By:
---------------------------- ----------------------------
ATTEST: MASSACHUSETTS COMMUNITY
DEVELOPMENT FINANCE CORPORATION
By:
---------------------------- ----------------------------
ATTEST: MASSACHUSETTS TECHNOLOGY
DEVELOPMENT CORPORATION
By:
---------------------------- ----------------------------
18
WITNESS: POLAROID CORPORATION
---------------------------- ----------------------------
WITNESS: P. XXXXXX XXXXX
---------------------------- ----------------------------
ATTEST: RETIREMENT ACCOUNTS, INC. CUST
FBO XXXXX X. XXXXXXX
By:
---------------------------- ----------------------------
WITNESS: XXXXXXX XXXXX
---------------------------- ----------------------------
WITNESS: XXXXXX XXXXXX
---------------------------- ----------------------------
WITNESS: K. XXXXXX XXXXXXXXX
---------------------------- ----------------------------
WITNESS: XXXXXXX XXXX-XXX XXXX
---------------------------- ----------------------------
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WITNESS: XXXXX XXXXX YEH
---------------------------- ----------------------------
