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EXHIBIT 10.32
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AGREEMENT
AMONG
THE AMERICAN MATERIALS & TECHNOLOGIES CORPORATION
CARBON DESIGN PARTNERSHIP LIMITED
STERADIAN ADVANCED COMPOSITES GmbH
▇▇▇▇▇ ▇. KEY
▇▇▇▇▇▇ ▇▇▇▇▇▇
TITANIC HOLDINGS LIMITED
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
J. ▇▇▇▇ CROUCHEN
▇▇▇▇▇▇▇ ▇. COMMANDER
November 22, 1995
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AGREEMENT
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THIS AGREEMENT (this "AGREEMENT"), entered into this ___ day of November,
1996, by and between The American Materials & Technologies Corporation, a
Delaware corporation ("PURCHASER"), Carbon Design Partnership Limited, an
English-registered limited company, registration number 2755972 (the "COMPANY"),
Steradian Advanced Composites GmbH, a company incorporated in Switzerland
("STERADIAN"), ▇▇▇▇▇ ▇▇▇, an individual ("KEY"), ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual
("BALCOU"), Titanic Holdings Limited, a Jersey limited company ("TITANIC") (Key,
Balcou and Titanic referred to herein each individually as a "SELLER" and
collectively as "SELLERS"), ▇▇▇▇▇▇▇ ▇. Commander, in his individual capacity and
d/b/a Commander Consultants ("COMMANDER"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual
("▇▇▇▇▇"), and J. ▇▇▇▇ Crouchen, an individual ("CROUCHEN");
W I T N E S S E T H T H A T:
WHEREAS, each Seller owns beneficially and of record that number of shares
in the capital of the Company set out opposite each Seller's name in SCHEDULE 1
hereto (the "SALE SHARES") and has the right, power and authority to sell and
transfer the Sale Shares free from any claims, charges, liens, encumbrances or
equities; and
WHEREAS, Purchaser desires to buy and each Seller desires to sell, on the
terms and conditions set forth herein, the Sale Shares; and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties, covenants and agreements made by each to the other as inducements to
the execution and delivery of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. DEFINITIONS AND INTERPRETATION
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1.1 For the purposes of this Agreement where the context so admits the
following words and expressions shall have the following meanings:
(a) "ACCOUNTING DATE" shall mean April 30, 1995.
(b) "ACCOUNTS" shall mean the audited financial statements of the Company
for the accounting reference period which ended on the Accounting Date and the
profit and loss account and balance sheet of the Company as at and for the
period ending on the Accounting Date, copies of which are annexed to the
Disclosure Letter.
(c) "COMPANY" shall have the meaning set forth in the recitals hereto and
details
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of which are set forth in Part 1 of SCHEDULE 2 hereto.
(d) "COMPANIES ACTS" shall mean the Companies ▇▇▇ ▇▇▇▇ and the Companies
▇▇▇ ▇▇▇▇.
(e) "CLOSING" shall mean the completion of the sale and purchase of the
Sale Shares as specified in SECTION 3.1 hereof.
(f) "CLOSING DATE" shall have the meaning given to that term in SECTION
3.1 hereof.
(g) "DISCLOSURE LETTER" shall mean the letter in the approved terms dated
as of the same date as this Agreement together with the attachments thereto from
each of the Warrantors to the Purchaser.
(h) "DRAFT ACCOUNTS" shall mean the draft audited financial statements of
the Company for the accounting reference period which ended on April 30, 1996
and the profit and loss account and balance sheet of the Company as at and for
the period ending on April 30, 1996, copies of which are annexed to the
Disclosure Letter.
(i) "ENVIRONMENT" shall mean all or any of the following media, namely,
the air, water and land; and the medium of air includes the air within buildings
and the air within other natural or man-made structures above or below ground.
(j) "ENVIRONMENTAL LAW" shall mean all and any laws, common law,
statutes, directives, regulations, notices, standards having force of law, codes
of practice, guidance notes, by-laws, judgments, decrees or orders whether of
the European Community or the United Kingdom or any other relevant jurisdiction,
relating to pollution, contamination or protection of the Environment or to the
storage, labelling, handling, release, treatment, manufacture, processing,
deposit, transportation or disposal of Hazardous Substances.
(k) "ENVIRONMENTAL LICENSE" shall mean any permit, license,
authorization, consent or other approval, that is required by any Environmental
Law for the conduct of the business of the Company.
(l) "HAZARDOUS SUBSTANCES" shall mean all chemicals, pollutants,
contaminants or harmful, dangerous or explosive substances which may cause or
have a harmful effect on the Environment or the health of man or any other
living organism including, without limitation, all poisonous, toxic, noxious,
dangerous and offensive substances.
(m) "INTELLECTUAL PROPERTY" includes patents, knowhow, trade secrets and
other confidential information, registered designs, copyrights, design rights,
topography rights, trade marks, service marks, trade and business names,
registrations of and applications to register any of the aforesaid items, rights
in the nature of any of the aforesaid items in any country, rights in
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the nature of unfair competition rights and rights to ▇▇▇ for passing off.
(n) "KEY WARRANTIES" shall mean the representations, warranties and
undertakings contained or referred to in SECTION hereof.
(o) "MANAGEMENT ACCOUNTS" shall mean the management accounts in the
agreed form of the Company for the period from the Accounting Date to September
30, 1996.
(p) "MANAGEMENT WARRANTIES" shall mean the representations, warranties
and undertakings contained or referred to in SECTION 4 hereof and SCHEDULE 4.
(q) "MANAGING SHAREHOLDERS" shall mean Commander, ▇▇▇▇▇ and Crouchen.
(r) "PROPERTY" shall mean the leasehold interest in part of Unit 6 known
as ▇▇▇▇ ▇-▇ of the Alpha Centre, Babbage Road, Totnes, Devon, as more
particularly described in SCHEDULE 3 hereof.
(s) "PURCHASER" shall have the meaning set forth in the recitals hereto,
as well as Purchaser's successors and permitted assigns.
(t) "RETIREMENT BENEFITS SCHEME" shall mean a retirement benefits scheme
within the meaning given to that term in section 611 of the Taxes Act;
(u) "SALE SHARES" shall have the meaning set forth in the recitals
hereto.
(v) "SELLERS" shall have the meaning set forth in the recitals hereto, as
well as each Seller's personal representatives, successors and permitted
assigns.
(w) "SUBSIDIARY" shall mean Carbon Design, Inc., a Florida corporation,
details of which are set out in Part 2 of SCHEDULE 2 hereof.
(x) "TAX" shall mean all forms of taxation, withholdings, duties,
imposts, levies, social security contributions and rates imposed by any statute
and any interest, penalty, surcharge or fine in connection therewith.
(y) "TAXES ACT" shall mean the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
(z) "TCGA" shall mean the Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇.
(aa) "VATA" shall mean the Value Added Tax ▇▇▇ ▇▇▇▇.
(bb) "WARRANTORS" shall mean each of the Managing Shareholders.
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1.2 Except where the context otherwise requires, words and phrases the
definitions of which are contained or referred to in the Companies Acts shall be
construed as having the meaning thereby attributed to them.
1.3 Any references, express or implied, to statutes or statutory provisions
shall be construed as references to those statutes or provisions as respectively
amended or re-enacted or as their application is modified from time to time by
other provisions (whether before or after the date hereof) (except to the extent
that any amendment, modification or re-enactment would increase the liability of
the Warrantors under this Agreement) and shall include any statutes or
provisions of which they are re-enactments (whether with or without
modification) and any orders, regulations, instruments or other subordinate
legislation under the relevant statute or statutory provision. References to
sections of consolidating legislation shall wherever necessary or appropriate in
the context be construed as including references to the sections of the previous
legislation from which the consolidating legislation has been prepared.
1.4 References in this Agreement to "sections" and "schedules" are to
Sections in and Schedules to this Agreement (unless the context otherwise
requires). The recitals and Schedules to this Agreement shall be deemed to form
part of this Agreement.
1.5 Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.6 References to "persons" shall include bodies corporate, unincorporated
associations and partnerships (whether or not having separate legal
personality).
1.7 References to writing shall include any methods of reproducing words in
a legible and non-transitory form.
1.8 The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa.
1.9 All warranties, representations, indemnities, covenants, agreements and
obligations given or entered into by more than one person are given or entered
into jointly and severally.
1.10 A document expressed to be "in the approved terms" means a document the
terms of which have been approved by or on behalf of the parties to this
Agreement and a copy of which has been signed for the purposes of identification
by or on behalf of those parties.
2. REORGANIZATION OF COMPANY; PURCHASE AND SALE OF SHARES
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2.1 REORGANIZATION OF COMPANY. Immediately prior to the Closing of the
purchase and sale of the Sale Shares under SECTION 2.2, and subject to the terms
and conditions herein set forth, the parties shall procure that the following
transactions shall take place:
(a) ASSIGNMENT OF COMMANDER EQUIPMENT; CANCELLATION OF COMMANDER LOAN.
Commander shall assign to the Company title to the equipment set out in clause 1
of an Agreement to Loan Equipment dated January 3, 1996 by and between Commander
Consultants and the Company. The Company and Commander hereby agree to terminate
said Agreement to Loan Equipment, and the Company and Commander hereby waive any
and all claims against each other in respect of said Agreement to Loan
Equipment. Commander hereby agrees to release the Company absolutely and
unconditionally from its obligations under the loan by Commander to the Company
on the date hereof in the amount of [pound sterling]25,000. The termination of
the Commander Loan shall be in writing in a form satisfactory to Purchaser and
shall state that Commander thereby waives any and all claims against the Company
in respect of the Commander Loan.
(b) CANCELLATION OF STERADIAN ADVANCED COMPOSITES LOAN. ▇▇▇▇▇ and
Crouchen shall cause Steradian to release the Company absolutely and
unconditionally from its obligations under the loan by Steradian to the Company
in the amount of [pound sterling]50,000 contained in the Loan Agreement dated
June 20, 1995 between the Company and Steradian (the "STERADIAN LOAN") in
exchange for the issue by the Company to Steradian of 300 "B" shares of [pound
sterling]1 each. The termination of the Steradian Loan shall be in writing in a
form satisfactory to Purchaser and shall state that ▇▇▇▇▇ and Crouchen thereby
waive any and all claims against the Company in respect of the Steradian Loan.
(c) CANCELLATION OF OPTION. All of the parties to the option agreement
dated June 20, 1995 by and among B. Key Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Esq., ▇.▇. Crouchen
Esq. and ▇.▇. ▇▇▇▇▇ Esq. (the "OPTION") shall mutually terminate the Option. The
termination of the Option shall be in writing in a form satisfactory to
Purchaser and shall state that such parties thereby waive any and all claims
against one another in respect of the Option.
(d) ADOPTION OF ARTICLES. The Company shall adopt articles of association
in the approved terms which shall provide, inter alia, for the classification of
shares of the Company into "A" Shares and "B" Shares and shall further provide
that all of the Sale Shares shall be "A" Shares.
(e) ISSUANCE OF STERADIAN SHARES. In consideration of the transactions
contemplated by paragraphs (a) at the direction of Commander, (b) and (c),
above, the Company shall issue to Steradian free of all charges, encumbrances
and liens an aggregate of 300 "B" shares of [pound sterling]1 each in the
capital of the Company (the "STERADIAN SHARES"). The Company shall deliver to
Steradian a certificate representing the number of "B" Shares issued to
Steradian and the Company secretary shall enter the name of Steradian in the
register of members of the Company in respect of such "B" Shares.
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2.2 PURCHASE AND SALE OF SHARES. On the terms and subject to the conditions
herein set forth, Sellers agree to sell as legal and beneficial owner with full
title guarantee and deliver the Sale Shares to Purchaser. On the terms and
subject to the conditions herein set forth, Purchaser agrees to purchase all of
the Sale Shares from Sellers for a purchase price of [pound sterling]300,000
(the "PURCHASE PRICE"). At the Closing, Sellers shall deliver to Purchaser a
certificate or certificates representing all of the Sale Shares, along with
stock transfer forms executed in blank and/or any other suitable instruments of
transfer, and Purchaser shall deliver the Purchase Price by wire transfer of
immediately available funds to Sellers in the account described in Part 1 of
SCHEDULE 2. Payment of the Purchase price to Key's solicitors shall constitue
good and sufficient receipt of the Purchase Price by Sellers.
2.3 WAIVER OF PRE-EMPTION RIGHTS. Each of the parties hereto hereby waives
any rights of pre-emption it may have pursuant to the articles of association of
the Company or otherwise.
3. CLOSING
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3.1 CLOSING. (a) The Closing of the sale and purchase shall take place at the
offices of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on November ____, 1996, or at such other time
and place as may be mutually agreed upon (the "CLOSING DATE"). At the Closing,
Sellers shall deliver to Purchaser transfers in respect of the Sale Shares duly
executed by the registered holders thereof in favor of Purchaser such share
certificates, stock transfer forms and other instruments as shall be effective
to vest in Purchaser good and marketable title to the Sale Shares free and clear
of any adverse claim of any other person.
3.2 CLOSING TRANSACTIONS. (a) Immediately following the sale and purchase of
the Sale Shares, the Company shall issue to Purchaser free of all charges,
encumbrances and liens 44 "A" shares of [pound sterling]1 each in the capital
stock of the Company (the "PURCHASER SHARES"), for an aggregatE consideration of
[pound sterling]44. The Company shall deliver to Purchaser a certificate
representing the SaLE Shares and the Company secretary shall enter the name of
Purchaser in the register of members of the Company in respect of such shares.
(b) At the Closing, Key shall resign from any and all positions held by
him as a director or officer of the Company or the Subsidiary and shall deliver
any and all original share certificates and other corporate records of the
Subsidiary. ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall also resign as directors of
the Company.
(c) At the Closing, the Company, Purchaser, Steradian and the Managing
Shareholders shall enter into a Shareholder Agreement in mutually agreed terms,
(the "SHAREHOLDER AGREEMENT").
(d) At the Closing, the Company and each of the Managing Shareholders
shall enter into new Service Agreements in mutually agreed terms, which shall
supersede any and all
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prior such agreements and arrangements between the Company and each Managing
Shareholder.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF WARRANTORS
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Each of the Warrantors hereby jointly and severally represents, warrants,
covenants and undertakes to and with Purchaser that each of the statements set
forth in SCHEDULE 4 hereto is true and accurate.
4.1 DISCLOSURE LETTER. The Warranties set forth in SCHEDULE 4 are given
subject to matters fairly disclosed in the Disclosure Letter and any
limitations, exceptions or exclusions expressly provided for under this
Agreement.
4.2 ACKNOWLEDGEMENT OF PURCHASER'S RELIANCE. The Warrantors acknowledge that
Purchaser has entered into this Agreement in reliance upon the Warranties and
has been induced by them to enter into this Agreement. The Purchaser
acknowledges that it has not entered into this Agreement in reliance on any
representations and warranties other than the Warranties.
4.3 INDEMNIFICATION OF PURCHASER BY WARRANTORS. Each Warrantor, jointly and
severally, hereby agrees to indemnify, defend and hold Purchaser or the Company
(as Purchaser directs) harmless from and against the amount of any actual claim,
damage, loss (including any shortfall or diminution in the value of the assets
or profitability of the Company, cost or expense (including reasonable
attorneys' fees and settlement costs) ("LOSS") to Purchaser and/or the Company
occasioned or caused by, resulting from or arising out of:
(a) Any failure by such Warrantor to perform, abide by or fulfill any of
the agreements, covenants or obligations set forth in, or entered into in
connection with, this Agreement to be so performed or fulfilled by such
Warrantor.
(b) Any breach of any of such Warrantor's representations or warranties
set forth in this Agreement, including without limitation the representations
and Warranties and any certificate or schedule or other writing delivered at the
Closing.
4.4 LIMITATIONS ON CLAIMS. (a) The liabilities of any of the Warrantors under
the Management Warranties, including the obligation to indemnify Purchaser for
Losses pursuant to SECTION hereof:
(i) shall, except for any warranty relating to Tax including
Section 3 of SCHEDULE 4 (the "TAX WARRANTIES") cease after the second
anniversary of the Closing Date except in respect of matters which have been the
subject of notification in writing by Purchaser or Purchaser's legal counsel to
any of the Warrantors or the Warrantors' solicitors before such date;
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(ii) shall in relation to the Tax Warranties cease after the seventh
anniversary hereof except in respect of matters which have been the subject of
notification in writing by Purchaser or Purchaser's legal counsel to any of the
Warrantors or the Warrantors' solicitors before such date; and
(iii) shall be enforceable by Purchaser only upon the aggregate
amount of all Losses hereunder exceeding [pound sterling]5000, in which event
the whole of such Losses (and not merely the excess) may be claimed by
Purchaser;
(iv) shall exclude Losses occurring solely by reason of any matter
which would not have arisen but for the coming into force of any legislation not
in force at the date of Closing or by reason of any change occurring after the
date of Closing to Inland Revenue practice;
(v) shall exclude any Loss to the extent that note, allowance,
provision or reserve has been made in the Accounts or in the Management Accounts
in respect of the matter to which such Loss relates;
(vi) shall exclude any Loss to the extent that such Loss arises
solely as a result of any change in the accounting bases or policies in
accordance with which the Company values its assets or calculates its
liabilities or any other change in accounting practice from the treatment or
application of the same used in preparing the Accounts; and
(vii) shall exclude any Loss to the extent that such Loss is
attributable to any fact, circumstance or matter prior to June 1, 1995, unless
such fact, circumstance or matter continued after June 1, 1995;
PROVIDED ALWAYS, that if in any case the relevant claim or claims has arisen
by reason of:
fraud or wilful or deliberate nondisclosure on the part of any of the
Warrantors prior to the date of this Agreement; or
any of the Warrantors or any signatory on their respective behalf being
claimed not to have had legal authority or capacity to enter into this
Agreement or any agreement ancillary hereto;
then in any such case none of the limitations whether as to amount or time
set forth in this SECTION 4.4 shall apply.
(b) If, subsequent to any payment to the Purchaser pursuant to this
SECTION 4, the Company receives any payment from any third party in respect of
the loss suffered by the
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Company which resulted in the claim, the Purchaser shall reimburse to the
Warrantors an amount equal to the proportion of such payment which the amount
paid by the Warrantors to the Purchaser bears to such loss.
(c) If any claim under the Warranties shall arise by reason of some
liability which at the time of the claim is contingent only, the Warrantors
shall be under no obligation to make any payment to the Purchaser in respect
thereof until such time as the contingent liability ceases to be contingent and
becomes actually payable.
(d) The Warrantors shall not be liable in respect of any Warranty claim
to the extent that the amount of such claim would be recoverable from insurers
if the policies of insurance effected by or for the benefit of the Company were
maintained on no less favorable terms than those existing at the Closing Date.
4.5 PURCHASER'S RIGHT OF SETOFF. (a) Steradian and the Warrantors hereby
jointly and severally covenant with Purchaser that, subject to SECTION 4.5(b),
Purchaser shall have the right to set off, against any sums paid or payable by
Purchaser pursuant to a sale of Steradian Shares by Steradian to Purchaser under
the Shareholder Agreement, any and all claims for Losses arising under this
SECTION 4 and remaining unpaid as of the date of such sale of Steradian Shares.
(b) Prior to the completion of any sale of Steradian Shares in connection
with which Purchaser intends to exercise its right of setoff under this SECTION
4.5, Purchaser shall give written notice of such intention to Steradian and the
Warrantors prior to the completion of such sale, which notice shall state the
basis for such setoff and the amount Purchaser intends to set off (the "SETOFF
AMOUNT"). Within thirty days of receipt of such notice, Steradian and the
Warrantors shall notify Purchaser in writing of any dispute as to the underlying
claim for Loss, specifying the basis of such dispute, and in such event
Purchaser shall at the completion of such sale of Steradian Shares place the
Setoff Amount in escrow pending resolution of such dispute.
4.6 LIMITATIONS ON WARRANTOR INDEMNIFICATION. The total amount of liability
on the Warrantors for damages for breach of the Warranties, including the
obligation to indemnify Purchaser under SECTION 4.3, shall be the aggregate of:
(a) in respect of each Warrantor, [pound sterling]25,000; and
(b) any amounts provided for in the Purchaser's right of setoff pursuant
to SECTION 4.5 hereof.
4.7 OPPORTUNITY TO DEFEND. If any matter comes to the notice of Purchaser in
respect of which Purchaser is aware of any the Warrantors may be or become
liable under any Warranty, Purchaser shall (insofar as Purchaser, in Purchaser's
sole discretion, finds is reasonable and consistent with the best interest of
the Company) procure that the Company:
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a) shall not make any admission of liability, agreement or compromise to
or with any person in relation thereto without first consulting with the
Warrantors; and
b) shall be permitted a reasonable opportunity to avoid, dispute, resist,
appeal or compromise any claim in respect of which the Warrantors may be or
become liable under any Warranty.
4.8 AWARENESS OF WARRANTORS. References in Schedule 4 to any Warranty being
qualified by the expression "so far as the Warrantors are aware," shall mean
that the liability of the Warrantors shall be limited to those matters of which
they are actually aware and to those matters of which any of the Warrantors
would have been aware if he had made reasonable enquiries to ascertain whether
the Warranty concerned is correct and not misleading.
4.9 WARRANTIES INDEPENDENT. Each of the Warranties shall be separate and
independent and, except as expressly provided to the contrary, shall not be
limited by reference to or inference from any other Warranty.
4.10 WAIVER BY WARRANTORS. Each of the Warrantors hereby agrees with
Purchaser to waive any rights save in the case of fraud which he may have in
respect of any misrepresentation or inaccuracy in, or omission from, any
information or advice supplied or given by or on behalf of the Company or its
officers, employees or advisers (other than ▇▇▇▇▇ ▇▇▇), in connection with the
giving of the Warranties and the preparation of the Disclosure Letter.
4.11 ASSIGNABILITY OF WARRANTIES. The benefit of the Warranties may not be
assigned in whole or in part and without restriction by the person for the time
being entitled thereto.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLERS
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Key and Balcou severally represent, warrant and covenant and undertake to and
with Purchaser that:
5.1 BENEFICIAL OWNERSHIP OF SHARES. Each Seller is the legal and beneficial
owner of the number of Sale Shares set forth opposite each Seller's name on
SCHEDULE 1 hereof free and clear of any lien, charge, option, right of
pre-emption or other encumbrance or third party right whatsoever and the Company
has not exercised any lien over any of its issued shares and there is no
outstanding call on any of the Sale Shares and all of the Sale Shares are fully
paid. Immediately prior to the sale of shares to Steradian pursuant to SECTION
2.1(e) hereof, the Sale Shares constituted all of the issued shares in the
capital of the Company, and except as contemplated by this Agreement there was
no agreement in place to issue any additional shares.
5.2 ACKNOWLEDGEMENT OF PURCHASER'S RELIANCE. Each Seller acknowledges that
Purchaser has entered into this Agreement in reliance upon the representations
set forth in this
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SECTION 5 and has been induced by them to enter into this Agreement.
5.3 LIMITATIONS ON BALCOU INDEMNIFICATION. The total amount of liability of
Balcou for damages for breach of the warranties contained in this SECTION ,
including the obligation to indemnify Purchaser, shall be limited to
[pound sterling]14,163.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF KEY
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6.1 REPRESENTATIONS REGARDING SUBSIDIARY. Key represents, warrants and
covenants and undertakes to and with Purchaser that the Subsidiary is a
corporation duly organized and in good standing in the State of Florida. The
authorized capital stock of the Subsidiary consists of 10,000 shares of Common
Stock, $0.10 par value per share, of which 1000 shares are issued and
outstanding. The Subsidiary Shares represent all of the issued and outstanding
equity securities of, and all of the Company's ownership interest in, the
Subsidiary. No bonds, debentures, notes or other indebtedness of the Subsidiary
having the right to vote (or convertible into securities having the right to
vote) on any matters on which stockholders of the Subsidiary may vote are issued
or outstanding. The Articles of Organization and By-laws of the Subsidiary in
the form provided to Purchaser pursuant to this Agreement are in full force and
effect. There are no options, warrants, calls, rights or agreements to which the
Company or the Subsidiary is a party or by which either the Company or the
Subsidiary is bound obligating the Subsidiary to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of its capital stock or
obligating the Subsidiary to grant, extend or enter into any such option,
warrant, call, right or agreement. The Subsidiary has, from its inception,
engaged in no activities, has entered into no contracts or commitments and is
not bound by any liabilities, contingent or otherwise.
6.2 ACKNOWLEDGEMENT OF PURCHASER'S RELIANCE. Key acknowledges that Purchaser
has entered into this Agreement in reliance upon the representations set forth
in this SECTION 6 and has been induced by them to enter into this Agreement.
6.3 INDEMNIFICATION OF PURCHASER BY KEY. Key hereby agrees to indemnify,
defend and hold Purchaser or the Company (as Purchaser directs) harmless from
and against the amount of any actual claim, damage, loss (including any
shortfall or diminution in the value of the assets or profitability of the
Company, cost or expense (including reasonable attorneys' fees and settlement
costs) to Purchaser and/or the Company occasioned or caused by, resulting from
or arising out of any breach of any of the representation, warranties and
covenants set forth in this SECTION 6.
6.4 LIMITATIONS ON KEY INDEMNIFICATION. The total amount of liability of Key
for damages for breach of the warranties contained in SECTIONS 5 AND 6,
including the obligation to indemnify Purchaser under SECTION 6.3, shall be
limited to [pound sterling]285,837.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER
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7.1 ORGANIZATION AND CORPORATE POWER. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is duly qualified and in good standing in the State of California,
with full corporate power and authority to carry on the business in which it is
engaged and to execute and deliver and carry out the transactions contemplated
by this Agreement.
7.2 DUE AUTHORIZATION; EFFECT OF TRANSACTION. No provision of Purchaser's
Certificate of Incorporation or By-laws, or of any agreement, instrument or
understanding, or any judgment, decree, rule or regulation, to which Purchaser
is a party or by which it is bound, have been or will be violated by the
execution by Purchaser of this Agreement or the performance or satisfaction of
any agreement or condition herein contained upon its part to be performed or
satisfied, and all requisite corporate and other authorizations for such
execution, delivery, performance and satisfaction have been duly obtained. This
Agreement will upon execution and delivery be a legal, valid and binding
obligation of Purchaser, enforceable in accordance with its terms. Purchaser is
not in default in the performance, observance or fulfillment of any of the terms
or conditions of its Certificate of Incorporation or By-laws.
7.3 FINANCING. Purchaser has, or will have, sufficient funds or has secured
commitments from third parties to provide sufficient funds to pay the Purchase
Price in accordance with SECTION 2.2.
8. CONDITIONS OF PURCHASER'S OBLIGATIONS
-------------------------------------
The obligations of Purchaser hereunder are subject to the fulfillment to the
reasonable satisfaction of Purchaser, prior to or at the Closing, of each of the
following conditions:
8.1 NO OPPOSITION. No suit, action or proceedings shall be pending or
threatened at any time prior to or on the Closing Date before or by any court or
governmental body seeking to restrain or prohibit, or damages or other relief in
connection with, the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby or which might materially
and adversely affect the business or properties or condition, financial or
other, or results of operations of the Company.
8.2 REPRESENTATIONS AND COVENANTS OF SELLERS. The representations and
warranties of each Seller contained in this Agreement or otherwise made in
writing by each Seller or on each Seller's behalf pursuant hereto or otherwise
made in connection with the transactions contemplated hereby, shall be true and
correct at and as of the Closing; each and all of the covenants, agreements and
conditions to be performed or satisfied by each Seller hereunder at or prior to
the Closing Date shall have been duly performed or satisfied; and each Seller
shall have furnished Purchaser with such certificates and other documents
evidencing the truth of such representations and warranties and the performance
and satisfaction of such covenants, agreements and conditions as Purchaser shall
have reasonably requested.
12
14
8.3 REPRESENTATIONS AND COVENANTS OF MANAGING SHAREHOLDERS. The
representations and warranties of each Managing Shareholder contained in this
Agreement or otherwise made in writing by each Managing Shareholder or on each
Managing Shareholder's behalf pursuant hereto or otherwise made in connection
with the transactions contemplated hereby, including without limitation the
Warranties set forth on SCHEDULE 4, shall be true and correct at and as of the
Closing; each and all of the covenants, agreements and conditions to be
performed or satisfied by each Managing Shareholder hereunder at or prior to the
Closing Date shall have been duly performed or satisfied; and each Managing
Shareholder shall have furnished Purchaser with such certificates and other
documents evidencing the truth of such representations and warranties and the
performance and satisfaction of such covenants, agreements and conditions as
Purchaser shall have reasonably requested.
8.4 CANCELLATION OF CHARGES. There shall be no charges recorded against the
Company except for that certain fixed and floating charge dated March 9, 1993 in
favour of Midland Bank plc. Each of Key and Crouchen shall have caused that
certain fixed and floating charge dated October 3, 1996, in favour Key and
Crouchen to be cancelled.
8.5 DEED OF SELLERS AND MANAGING SHAREHOLDERS. Each Seller and each Managing
Shareholder shall each execute and deliver at the Closing a deed confirming that
neither the person executing such deed nor any related party has any outstanding
claim against the Company and waiving all rights to claim against the Company
save in the case of the Managing Shareholders in respect of accrued salary,
expenses or wages which are accrued but unpaid.
8.6 NO DIVIDENDS. There shall have been no dividend declared for the fiscal
year ended April 30, 1996. No part of any dividend declared for the year ended
April 30, 1995 shall have been paid as of the Closing Date, and each Seller
shall have waived, in writing, in a form satisfactory to Purchaser, his right to
receive any portion of such dividend.
8.7 COMPLETION OF COMPANY REORGANIZATION. The reorganization of the Company
pursuant to SECTION 2.1 hereof, including without limitation the cancellation of
the Option and the termination of the agreements referred to therein, shall have
taken place to the satisfaction of Purchaser.
8.8 SERVICE AGREEMENTS WITH MANAGING SHAREHOLDERS. The Company and each of
the Managing Shareholders shall have agreed to the terms of Service Agreements
between the Company and each of the Managing Shareholders, which Service
Agreements shall be executed and delivered at the Closing and which agreements
shall supersede any and all prior such agreements between each such individual
and the Company.
13
15
8.9 SHAREHOLDER AGREEMENT. The Company, Purchaser, Steradian and the Managing
Shareholders shall have agreed to the terms of a Shareholder Agreement, which
shall be executed and delivered at the Closing and which shall provide, inter
alia, for restrictions on the transfer of, and terms for the disposition of, the
shares of the Company held by Steradian, and which shall provide for Purchaser's
right of setoff pursuant to SECTION 4.5 hereof.
9. CONDITIONS OF SELLERS' OBLIGATIONS
----------------------------------
The obligations of Sellers hereunder are subject to the fulfillment to the
reasonable satisfaction of each Seller prior to or at the Closing of each of the
following conditions:
9.1 REPRESENTATIONS AND COVENANTS. The representations and warranties of
Purchaser contained in this Agreement shall be true and correct at and as of the
Closing; each of the covenants, agreements and conditions to be performed or
satisfied by Purchaser hereunder at or prior to the Closing shall have been duly
performed or satisfied; and Purchaser shall have furnished Sellers with such
certificates or other documents evidencing the truth of such representations and
warranties and the performance and satisfaction of such covenants, agreements
and conditions as Sellers shall have reasonably requested.
9.2 CANCELLATION OF GRAPHGAME LOAN. The Company shall have released Graphgame
Limited from its obligations under the loan by the Company to Graphgame Limited
in the amount of [pound sterling]18,751 by means of a writing reasonably
satisfactory to Key.
9.3 KEY GUARANTEE. Any personal guarantee of Key to Midland Bank plc in
respect of the Company's overdraft shall have been terminated.
9.4 AJAX GUARANTEE. Any personal guarantee of Key in respect of the machinery
known as the Ajax multi-access milling centre shall have been terminated.
9.5 NO OPPOSITION. No suit, action or proceeding shall be pending or
threatened on the Closing Date before or by any court or governmental authority
seeking to restrain or prohibit the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
10. BROKERAGE FEE
-------------
Sellers and Purchaser each represent that no broker has been involved in
this transaction and each party agrees to indemnify and hold the other harmless
from payment of any brokerage fee, finder's fee or commission claimed by any
party who claims to have been involved because of association with such party.
11. AMENDMENTS; WAIVERS
-------------------
14
16
This Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an instrument in
writing executed by or on behalf of the party against whom enforcement of any
amendment, waiver, change, modification, consent or discharge is sought.
Any waiver of any term or condition of this Agreement, or of the breach of
any covenant, representation or warranty contained herein, in any one instance,
shall not operate as or be deemed to be or construed as a further or continuing
waiver of such term, condition or breach of covenant, representation or
warranty, nor shall any failure at any time or times to enforce or require
performance of any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require performance of
such provision or of any other provision hereof; and no such written waiver,
unless it, by its own terms, explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the provision being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision.
15
17
12. ASSIGNMENT; SUCCESSORS AND ASSIGNS
----------------------------------
This Agreement shall not be assignable by any party hereto without the
written consent of each other party. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
13. SEVERABILITY
------------
If any provision of this Agreement shall be deemed invalid, inoperative or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the conflict
of any provision with any constitution or statute or rule of public policy or
for any other reason, such circumstance shall not have the effect of rendering
the provision or provisions in question invalid, inoperative or unenforceable in
any other jurisdiction or in any other case or circumstance or of rendering any
other provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not themselves
actually in conflict with such constitution, statute or rule of public policy,
but this Agreement shall be reformed and construed in any such jurisdiction or
case as if such invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be valid,
operative and enforceable to the maximum extent permitted in such jurisdiction
or in such case.
14. COUNTERPARTS
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument, and in pleading or proving any provision of this Agreement
it shall not be necessary to produce more than one such counterpart.
15. NOTICES
-------
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered or mailed,
postage prepaid, certified mail, return receipt requested or equivalent method
of delivery:
(a) TO SELLERS: If to Key or to Titanic:
----------
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇
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18
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Michelmores
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
If to Balcou:
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇
with a copy to:
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(b) TO PURCHASER: If to Purchaser, to:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
The American Materials & Technologies Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(c) TO ▇▇▇▇▇: If to ▇▇▇▇▇, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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19
with a copy to:
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(d) TO CROUCHEN: If to Crouchen, to:
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(e) TO COMMANDER: If to Commander, to:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(f) TO COMPANY: If to the Company, to:
Carbon Design Partnership Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇
18
20
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and/or to such other person(s) and address(es) as either party shall
have specified in writing to the other.
16. LAW TO GOVERN
-------------
This Agreement and any documents supplemental thereto shall be governed by
and construed and enforced in accordance with English law, and the parties
hereto submit to the non-exclusive jurisdiction of the English courts for the
purpose of enforcing any claim arising hereunder.
17. ENTIRE AGREEMENT
----------------
This Agreement constitutes the entire agreement of the parties related to
the subject matter of this Agreement, supersedes all prior or contemporary
agreements, representations, warranties, covenants and understandings of the
parties, and shall not be amended or modified in any way except by subsequent
agreement executed in writing. In furtherance of the foregoing, the parties
hereto acknowledge that (i) there have been no representations, warranties,
covenants, understandings or agreements related to the subject matter of this
Agreement other than as set forth herein and therefore no reliance can be placed
on matters other than as set forth herein, and (ii) no agent of any party has or
had authority to make representation, warranties, covenants or agreements on
behalf of such party and if and to the extent so made, such representations,
warranties, covenants or agreements were not authorized and have not been the
subject upon which reliance has been placed.
18. EXPENSES
--------
The parties hereto, except for Steradian and the Managing Shareholders,
agree that each will be solely responsible for and bear all of its own
respective expenses incurred in connection with this Agreement, including,
without limitation, expenses of legal counsel, accountants and other advisors.
* * *
19
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a deed on the date first above written.
/s/ ▇▇▇▇▇ ▇. KEY
--------------------------------------------------------------
▇▇▇▇▇ ▇▇▇
In the presence of:
Witness signature: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name and address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ 11 55R
-----------------------------------
Occupation: Sales Executive
--------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
In the presence of:
Witness signature: /s/ ▇▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name and address: ▇▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Cathedral Yd. Exeter
-----------------------------------
Occupation: Solicitor
--------------------------------------
TITANIC HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
----------------------------------------------
In the presence of:
Witness signature: /s/ ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name and address: ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
-----------------------------------
Occupation: Company and Trust Administrator
--------------------------------------
20
22
THE AMERICAN MATERIALS &
TECHNOLOGIES CORPORATION
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
In the presence of:
Witness signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name and address: ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------
Occupation:
--------------------------------------
CARBON DESIGN PARTNERSHIP LIMITED
By: /s/ ▇. ▇. ▇▇▇▇▇
-----------------------------------------------------------
Name: ▇. ▇. ▇▇▇▇▇
--------------------------
Title: Director
------------------------
In the presence of:
Witness signature: /s/ ▇.▇. Crouchen
-------------------------------
Name and address: ▇.▇. Crouchen
--------------------------------
▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ TQ121LY
------------------------------------------
Occupation: Technical Director
--------------------------------------
21
23
STERADIAN ADVANCED COMPOSITES GmbH
By: /s/ ▇.▇. Crouchen
-----------------------------------------------------------
Name: ▇.▇. Crouchen
--------------------------
Title: Director
------------------------
In the presence of:
Witness signature: /s/ ▇.▇. ▇▇▇▇▇
-------------------------------
Name and address: ▇.▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
----------------------------------------------
Occupation: Director
--------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
In the presence of:
Witness signature: /s/ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name and address: ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
-----------------------------------
Occupation: Production Manager
--------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. COMMANDER
--------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. COMMANDER
In the presence of:
Witness signature: /s/ A.S. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name and address: A.S. ▇▇▇▇▇▇▇▇▇▇▇, Vicar,
--------------------------------
▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Occupation: Clerk in Holy Orders
--------------------------------------
22
24
/s/ J. ▇▇▇▇ CROUCHEN
--------------------------------------------------------------------------
J. ▇▇▇▇ CROUCHEN
In the presence of:
In the presence of:
Witness signature: /s/ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name and address: ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇
-----------------------------------
Occupation: Production Manager
--------------------------------------
23
