EXHIBIT 2
INVESTMENT AND STOCKHOLDERS AGREEMENT
BY AND AMONG
CENTENNIAL TECHNOLOGIES, INC.,
INFOS INTERNATIONAL, INC.,
AND
INFOS INTERNATIONAL, S.A.
August 30, 1996
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TABLE OF CONTENTS
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1. Terms of Purchase..................................................................... 1
1.1 Purchase of Shares.................................................................... 1
1.2 Purchase Price........................................................................ 2
1.3 Use of Proceeds....................................................................... 2
1.4 Closing............................................................................... 2
2. Representations and Warranties of the Infos Corporations.............................. 2
2.1 Capitalization of Infos USA........................................................... 3
2.2 Authorization......................................................................... 3
2.3 Organization of Infos USA............................................................. 3
2.4 Subsidiaries of Infos USA............................................................. 4
2.5 Organization of Infos LUX............................................................. 4
2.6 Subsidiaries of Infos LUX............................................................. 4
2.7 Organization of the Subsidiaries...................................................... 4
2.8 Audited Financial Statements.......................................................... 4
2.9 Tax Matters........................................................................... 5
2.10 Title to Properties................................................................... 6
2.11 Agreements, Contracts and Commitments................................................. 6
2.12 Required Consents, No Default......................................................... 6
2.13 Litigation............................................................................ 6
2.14 Intangible Property................................................................... 7
2.15 Governmental Consents................................................................. 7
2.16 Compliance with Agreements and Laws................................................... 7
2.17 Employee Relations.................................................................... 7
2.18 Indebtedness to and from Officers, Directors and Stockholders......................... 7
2.19 Insurance of Properties............................................................... 7
2.20 Guarantees, Warranties and Discounts.................................................. 8
3. Affirmative Covenants................................................................. 8
3.1 Maintenance of Records................................................................ 8
3.2 Maintenance of Properties............................................................. 8
3.3 Conduct of Business................................................................... 8
3.4 Maintenance of Insurance.............................................................. 9
3.5 Compliance with Laws.................................................................. 9
3.6 Right of Inspection................................................................... 9
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3.7 Reporting Requirements ............................................................... 9
3.8 Payment of Taxes and Claims .......................................................... 10
3.9 Maintenance of Existence ............................................................. 10
3.10 Use of Proceeds ...................................................................... 10
3.11 Payment of Other Obligations ......................................................... 10
3.12 Board of Directors ................................................................... 11
3.13 Exclusive Dealings.................................................................... 11
4. Negative Covenants.................................................................... 11
4.1 Mergers or Disposition of Assets...................................................... 11
4.2 Sale of Assets........................................................................ 11
4.3 Transactions Outside the Ordinary Course of Business.................................. 11
4.4 Transactions with Affiliates.......................................................... 12
4.5 Change in Capitalization.............................................................. 12
5. Representations and Warranties of Centennial.......................................... 12
5.1 Organization and Related Matters ..................................................... 12
5.2 Authorization of Agreement............................................................ 12
5.3 Capitalization of Centennial ......................................................... 12
5.4 Financial Representations............................................................. 12
6. Conditions Precedent to the Obligations of Centennial................................. 13
6.1 Ownership of the Infos Common Stock................................................... 13
6.2 Ownership of the Subsidiaries......................................................... 13
6.3 Representations and Warranties of the
Infos Corporations to be True and Correct............................................. 13
6.4 Opinions of Counsel to the Infos Corporations......................................... 13
6.5 Opinions of Counsel to the Subsidiaries............................................... 13
6.6 Required Consents..................................................................... 14
6.7 Legal Proceedings..................................................................... 14
6.8 Satisfaction of Debts and Liabilities to the Stockholders............................. 14
6.9 Due Diligence......................................................................... 14
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7. Indemnification ...................................................................... 14
7.1 Subjects Indemnified Against by the Infos Corporations................................ 14
7.2 Conditions to Indemnification......................................................... 15
7.3 Payment for Indemnification .......................................................... 15
7.4 Survival of Indemnification........................................................... 15
7.5 Intent of Parties..................................................................... 16
8. Registration Rights................................................................... 16
8.1 Registration of Shares................................................................ 16
8.2 Compliance with the Securities Rules and Regulations.................................. 16
8.3 Obligations of Infos USA.............................................................. 16
8.4 Indemnification....................................................................... 17
9. Future Sales of Shares of Capital Stock of Infos USA.................................. 17
9.1 Sales of Stock by Infos USA........................................................... 17
9.2 Right of First Refusal of Centennial.................................................. 17
9.3 Right of First Refusal of Infos....................................................... 18
9.4 Right of Participation in Sales....................................................... 18
9.5 No Limitation......................................................................... 19
10. General .............................................................................. 19
10.1 Survival of Representations, Warranties and Covenants................................. 19
10.2 Press Releases........................................................................ 19
10.3 Payment of Expenses................................................................... 19
10.4 Governing Law......................................................................... 20
10.5 Notices............................................................................... 20
10.6 Successors and Assigns................................................................ 21
10.7 Headings.............................................................................. 21
10.8 Counterparts.......................................................................... 21
10.9 Waiver................................................................................ 21
10.10 Entire Agreement...................................................................... 21
10.11 Additional Actions.................................................................... 21
10.12 Remedies.............................................................................. 21
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TABLE OF SCHEDULES
No. Title
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2.8 Adverse Changes and Undisclosed Liabilities
2.9 Powers of Attorney
2.13 Litigation
2.18 Related Party Transactions
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INVESTMENT AND STOCKHOLDERS AGREEMENT
This Investment and Stockholders Agreement (the "Agreement") made as of
the 30th day of August, 1996, by and among Centennial Technologies, Inc., a
Delaware corporation having its principal place of business at 00 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Centennial"), Infos International, Inc., a
Delaware corporation having its principal place of business at 00X Xxxxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Infos USA") and Infos International, S.A., a
Luxembourg corporation with a principal place of business at Xxx xx X'xx, 0,
Xxxxxxxxxx ("Xxxxx XXX"). Infos USA and Infos LUX are sometimes collectively
referred to herein as the "Infos Corporations."
RECITALS
WHEREAS, Infos LUX owns all of the outstanding shares of capital stock
of Infos USA, which is comprised of 1,000 shares of Common Stock, $.01 par value
per share, of Infos USA (the "Infos Common Stock"); and
WHEREAS, Infos GmbH, a German corporation, Infos Espana, S.A., a
Spanish corporation, Infos Italia S.r.l., an Italian corporation, Sofni-Sistemas
Portateis de Informacao, LDA, a Portuguese corporation, and Infos Limited, an
English corporation, are all wholly-owned subsidiaries of Infos LUX (the
"Subsidiaries"); and
WHEREAS, prior to the Closing Date (as defined herein), Infos LUX
intends to transfer ownership of the Subsidiaries to Infos USA, and the
Subsidiaries will thereafter be wholly-owned by Infos USA; and
WHEREAS, Centennial wishes to acquire from Infos LUX and Infos LUX
wishes to transfer to Centennial thirty-eight percent (38%) of the outstanding
Infos Common Stock, in exchange for which Centennial shall pay the Purchase
Price (as defined herein) on the terms and conditions set forth below.
NOW, THEREFORE, intending to be legally bound hereby, and in
consideration of the mutual promises and the representations, warranties and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. TERMS OF PURCHASE.
1.1 Purchase of Shares. Subject to the terms, provisions and conditions
of this Agreement and upon the basis of the representations, warranties and
covenants made herein, at the Closing (as defined below) Infos LUX shall sell,
assign and transfer to Centennial Three Hundred Eighty (380) shares of Infos
Common Stock (the "Infos Shares") which shall constitute thirty-eight
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percent (38%) of the outstanding capital stock of Infos USA. At the Closing,
Infos LUX shall deliver a certificate or certificates representing the Infos
Shares in exchange for which Centennial shall pay the Purchase Price as set
forth in Section 1.2 herein.
1.2 Purchase Price. At the Closing, Centennial shall tender two million
dollars (US$2,000,000) by bank check or wire transfer (the "Cash Consideration")
and arrange for the issuance and delivery to Infos LUX One Hundred Fifteen
Thousand Four (115,004) shares of Common Stock, $.01 par value per share, of
Centennial (the "Centennial Shares") or (the "Stock Consideration"). The Cash
Consideration and the Stock Consideration shall be collectively referred to as
the "Purchase Price." Delivery shall be made by Centennial against delivery of
the Infos Shares.
1.3 Use of Proceeds. Infos LUX shall use the Cash Consideration to
repay in full the Promissory Note from Infos LUX and Infos USA to Centennial,
dated July 23, 1996 in the principal amount of $500,000. Infos LUX shall use the
remaining Cash Consideration: (1) to repay any of its debts or the debts of
Infos USA or the Subsidiaries; and/or (2) as working capital for itself, Infos
USA or the Subsidiaries.
1.4 Closing. The closing (the "Closing") of the purchase of the Infos
Shares under this Agreement shall take place at the offices of X'Xxxxxx, Xxxxxx
& Xxxxxxx in Waltham, Massachusetts, on or before the 30th day of September,
1996, at 10:00 a.m., which may be extended to on or before the 31st day of
October, 1996, at 10:00 a.m., upon five (5) days' written notice by any party
hereto, or such other date and place as shall be agreed upon by the Infos
Corporations and Centennial. The date of the Closing is hereinafter referred to
as the Closing Date. All proceedings to be taken and all documents to be
executed and delivered by all parties at the Closing shall be deemed to have
been taken and executed simultaneously, and no proceedings shall be deemed to
have been taken nor any documents executed or delivered until all have been
taken, executed and delivered. At Closing:
(a) Infos LUX shall deliver to Centennial a certificate or
certificates representing the Infos Shares, together with duly endorsed stock
assignments, and, in exchange therefor, Centennial shall pay the Purchase Price
as set forth in Section 1.2 hereof.
(b) Infos LUX shall deliver the Opinions of Counsel described
in Sections 6.4 and 6.5 of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE INFOS CORPORATIONS
The Infos Corporations, jointly and severally, represent and warrant to
Centennial, upon which representations and warranties Centennial relies, and
which representations and warranties shall survive the Closing for a period of
one (1) year, notwithstanding any investigation of the affairs of the Infos
Corporations by Centennial, as follows:
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2.1 Capitalization of Infos USA. Infos USA authorized capital stock
consists of 3,000 shares of Common Stock, $.01 par value per share, of which
1,000 shares are issued and outstanding on the date hereof, all of which are
held of record and beneficially by Infos LUX. All such issued and outstanding
Infos Shares have been and on the Closing Date will be duly and validly issued
and are, or will be on such date, fully paid and non-assessable. There are not,
and on the Closing Date there will not be, outstanding (i) any options, warrants
or other rights to purchase from Infos LUX any Infos Common Stock; (ii) any
securities convertible into or exchangeable for shares of any Infos Common
Stock; or (iii) any other agreements, arrangements, understandings or
commitments of any kind for the issuance of additional shares of Infos Common
Stock, or options, warrants or other securities of Infos USA.
2.2 Authorization. This Agreement has been duly and validly executed
and delivered by each of the Infos Corporations. This Agreement and all other
agreements and obligations entered into and undertaken in connection with the
transactions contemplated hereby to which the Infos Corporations are a party
constitute the valid and legally binding obligations of the Infos Corporations,
enforceable against them 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 of this Agreement and the agreements
provided for herein by the Infos Corporations, and the consummation by the Infos
Corporations 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 each of the Infos
Corporations; (b) violate the provisions of the Certificate of Incorporation,
charter documents or by-laws of each of the Infos Corporations; (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
cause the creation of any indebtedness, contract, lease, license, permit, lien,
charge or encumbrance upon the properties or assets of each of the Infos
Corporations pursuant to, any indenture, mortgage, deed of trust or other
instrument or agreement to which either of the Infos Corporations are a party or
by which either of the Infos Corporations or any of its properties is or may be
bound.
2.3 Organization of Infos USA. Infos USA is a corporation, duly
organized, validly existing and in good standing under the laws of 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. Infos USA is
duly qualified to do business and is 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 a material adverse
effect on Infos USA. Certified copies of the Certificate of Incorporation, as
amended and by-laws of Infos USA, as amended to date, shall be delivered to
Centennial, and shall be complete and correct, and no amendments shall have been
made thereto or have been authorized since the date hereof.
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2.4 Subsidiaries of Infos USA. Infos USA has no subsidiaries other than
the Subsidiaries, and Infos USA owns or holds of record and or beneficially no
shares of any class of capital stock of any other corporations or business
enterprise. "Subsidiary" shall mean any corporation, partnership, joint venture
or other entity in which Infos has, directly or indirectly, an equity interest
representing 50% or more of the capital stock thereof or other equity interests
therein.
2.5 Organization of Infos LUX. Infos LUX is a corporation, duly
organized, validly existing and in good standing under the laws of Luxembourg,
and has all requisite power and authority (corporate and other) to own its
properties and to carry on its business as now being conducted. Infos LUX is
duly qualified to do business and is 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 a material adverse
effect on Infos LUX.
2.6 Subsidiaries of Infos LUX. Except for the Subsidiaries as defined
therein, Infos LUX has no subsidiaries and Infos LUX owns or holds of record and
or beneficially no shares of any class in the capital of any other corporations
or in any other business enterprise.
2.7 Organization of the Subsidiaries. The Subsidiaries are
corporations, duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, and have all requisite
power and authority (corporate and other) to own their properties and to carry
on their businesses as now being conducted. The Subsidiaries are duly qualified
to do business and are in good standing in all jurisdictions in which their
ownership of property or the character of their businesses requires such
qualification and where failure to be so qualified would have a material adverse
effect on the Subsidiaries. Certified copies of the charter documents and
by-laws of the Subsidiaries, as amended to date, shall be delivered to
Centennial upon its written request, and shall be complete and correct, and no
amendments shall have been made thereto or have been authorized since the date
hereof.
2.8 Audited Financial Statements
(a) Financial Statements. Infos LUX has delivered or, before
Closing, will deliver to Centennial true and complete copies of audited
financial statements of the Subsidiaries as of December 31, 1995 (the "1995
Financial Statements") and unaudited interim financial statements of the
Subsidiaries for the period January 1, 1996 to June 30, 1996 (the "Interim
Financial Statements"). All such Financial Statements are in accordance with the
books and records of Infos LUX, Infos USA and the Subsidiaries, and (i) present
fairly and correctly the financial position of Infos LUX, Infos USA and the
Subsidiaries as of the respective dates and for the respective periods
indicated, (ii) include all required material adjustments, and (iii) have been
prepared in accordance with generally accepted accounting principles ("GAAP") or
their equivalent in the parties' jurisdiction of incorporation, applied on a
basis consistent with prior periods and practices. The 1995 Financial Statement
and Interim Financial Statements are collectively referred to as the "Financial
Statements." From June 30, 1996 through the Closing Date, the Infos Corporations
and the Subsidiaries have not and shall not change their accounting practices
and procedures.
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(b) No Adverse Changes or Undisclosed Liabilities. Except as
set forth on Schedule 2.8, since June 30, 1996, there has not occurred or
arisen, whether or not in the ordinary course of business: (i) any material
adverse change in the assets, financial condition, operations, prospects or
business of any of the Infos Corporations or the Subsidiaries, or (ii) any
event, condition or state of facts of any character known to the Infos
Corporations which might materially and adversely affect the results of assets,
operations, financial condition, prospects or business of any of the Infos
Corporations or the Subsidiaries. Except as set forth on Schedule 2.8, the Infos
Corporations and the Subsidiaries have had no material liabilities or
obligations, fixed, accrued, contingent or otherwise, which are not fully
reflected or provided for on, or disclosed in the notes to, the Financial
Statements except (i) liabilities and obligations incurred in the ordinary
course of business since June 30, 1996, none of which individually or in the
aggregate has been or is materially adverse to the assets, operations, financial
condition, prospects or business of the Infos Corporations or the Subsidiaries
and (ii) liabilities and obligations permitted or contemplated by this
Agreement.
2.9 Tax Matters.
(a) The Infos Corporations, the Subsidiaries and their
predecessors have paid, and, as to any of the following which are payable after
the Closing Date and determinable as of the Closing Date, the Infos
Corporations, the Subsidiaries and their predecessors have properly reserved
against in accordance with GAAP, all income taxes, capital gains taxes,
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, imposts, 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, provincial, state, territorial
or municipal (collectively the "Taxes") required to be paid by the Infos
Corporations, the Subsidiaries or their predecessors for all periods prior to
the Closing Date. No outstanding assessments, reassessments, notices of
determination, or notices of any kind whatsoever exist. The Infos Corporations,
the Subsidiaries and their predecessors have duly 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 Closing; and
(b) No action, suit, proceeding, audit, investigation or claim
is pending or, to the knowledge of the Infos Corporations, are threatened with
respect to any Taxes for which any of the Infos Corporations, the Subsidiaries
or their predecessors are liable, nor has any deficiency or claim for any Taxes
been proposed or asserted. No waiver of any statute of limitations with respect
to any taxation year has been executed by the Infos Corporations, the
Subsidiaries or their predecessors; and no agreement, waiver or consent
providing for an extension of time with respect to the assessment, reassessment
or other determination of any Taxes against the Infos Corporations, the
Subsidiaries or their predecessors, and no power of attorney granted by the
Infos Corporations, the Subsidiaries or their predecessors with respect to any
matters relating to Taxes is currently in force, except as provided in Schedule
2.9.
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2.10 Title to Properties. The Infos Corporations and the Subsidiaries
have good and marketable title to all of their properties and assets reflected
in the Financial Statements or acquired since June 30, 1996, except properties
and assets disposed of in the ordinary course of business since June 30, 1996.
2.11 Agreements, Contracts and Commitments. None of the Infos
Corporations or the Subsidiaries are a party to, liable in connection with or
have made or granted any oral or written agreement or arrangement for the sale
of any of the assets of the Infos Corporations or the Subsidiaries, or the grant
of any preferential rights to purchase any of the assets, property or rights of
the Infos Corporations or the Subsidiaries, or requiring the consent of any
party for the transfer and assignment of such assets, property or rights of the
Infos Corporations or the Subsidiaries.
2.12 Required Consents, No Default. Neither the execution and delivery
of this Agreement nor compliance by the Infos Corporations 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 that will not be received prior to the Closing Date.
None of the Infos Corporations or the Subsidiaries are in default under or in
violation of any provision of their Certificates of Incorporation, charter
documents or by-laws. The Infos Corporations and the Subsidiaries are not in
default under or in violation of any provision of any indenture, mortgage,
lease, loan or other agreement to which any is a party or is bound or to which
any of their properties are subject, except such defaults which in the aggregate
are not materially adverse to the business or financial condition of the Infos
Corporations or the Subsidiaries.
2.13 Litigation. Except as provided in Schedule 2.13, there is no
action, suit or proceeding to which any of the Infos Corporations or the
Subsidiaries are a party (either as a plaintiff or defendant) pending or, to the
best knowledge of the Infos Corporations, threatened before any court or
governmental agency, authority, body or arbitrator except where such action,
suit or proceeding could not reasonably be expected to have a material adverse
effect on the business, properties, prospects, or financial condition of the
Infos Corporations taken as a whole, and, to the best knowledge of the Infos
Corporations, there is no basis for any such action, suit or proceeding; (b)
neither the Infos Corporations nor the Subsidiaries nor, to the best knowledge
of the parties hereto, any officer, director or employee of the Infos
Corporations or the Subsidiaries have 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 the Infos Corporations or
the Subsidiaries; and (c) there is not in existence on the date hereof any
order, judgment or decree of any court, tribunal or agency enjoining or
requiring the Infos Corporations or the Subsidiaries to take any action of any
kind with respect to their business, assets or properties.
2.14 Intangible Property. The Infos Corporations and the Subsidiaries
are the sole and exclusive owners of all right, title and interest in and to all
intangible property and all designs, permits, labels and packages used on or in
connection therewith, free and clear of all liens, security
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interests, charges, encumbrances, equities or other adverse claims, which are
material to the conduct of their businesses.
2.15 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority is required to be obtained or made by
any of the Infos Corporations or the Subsidiaries in connection with the
execution and delivery of this Agreement or the sale and delivery of the Infos
Shares, as contemplated by this Agreement, except such filings as shall have
been made prior to and shall be effective on and as of the Closing.
2.16 Compliance with Agreements and Laws. The Infos Corporations and
the Subsidiaries have all requisite licenses, permits and certificates,
including environmental, health and safety permits, from federal, provincial and
local authorities necessary to conduct their businesses as currently conducted
(collectively, the "Permits"). The businesses of the Infos Corporations and the
Subsidiaries as conducted through the date hereof have not violated any federal,
provincial, local or foreign laws, regulations or orders (including, but not
limited to, any of the foregoing relating to employment discrimination,
occupational safety, environmental protection, hazardous waste, conservation, or
corrupt practices), the enforcement of which would have a material adverse
effect on the businesses, prospects or operations of the Infos Corporations and
the Subsidiaries.
2.17 Employee Relations. There are no pending labor strike or other
material labor trouble affecting the Infos Corporations or the Subsidiaries.
2.18 Indebtedness to and from Officers, Directors and Stockholders.
Except as provided in Schedule 2.18, the Infos Corporations and the Subsidiaries
are not, and on the Closing Date will not be, indebted, directly or indirectly,
to any person who is an officer, director or stockholder of the Infos
Corporations, the Subsidiaries or any affiliate of any such person in any amount
whatsoever other than for salaries for services rendered or reimbursable
business expenses, all of which have been reflected on the Financial Statements,
and no such officer, director, stockholder or affiliate is indebted to the Infos
Corporations or the Subsidiaries. In addition, the Infos Corporations and the
Subsidiaries are not a party to any agreement or arrangement whereby it engages
in a transaction of any kind with any affiliate except on terms and conditions
no less favorable to the Infos Corporations or the Subsidiaries than would be
customary for such transactions between unaffiliated parties or upon terms and
conditions on which similar transactions with others could fairly be expected to
be entered into.
2.19 Insurance of Properties. All of the properties and operations of
the Infos Corporations and the Subsidiaries are adequately insured, by
financially sound and reputable insurers, against loss or damage of the kinds
and in amounts customarily insured against by such persons, and the Infos
Corporations and Subsidiaries carry, with such insurers in customary amounts,
such other insurance, including larceny, embezzlement or other criminal
misappropriation insurance and business interruption insurance, as is usually
carried by companies of established reputation engaged in the same or a similar
business similarly situated.
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2.20 Guarantees, Warranties and Discounts. Except as disclosed in the
Financial Statements:
(a) None of the Infos Corporations or the Subsidiaries are a
party to or bound by any agreement of guarantee, indemnification, assumption or
endorsement or any other like commitment of any material obligations,
liabilities (contingent or otherwise) or indebtedness of any person with respect
to or in connection with the businesses of the Infos Corporations or the
Subsidiaries; and
(b) The Infos Corporations and the Subsidiaries have not given
any guarantee or warranty with respect to any of the products sold or the
services provided by it, except warranties made in the ordinary course of its
business and in the form of the standard written warranty of the Infos
Corporations and the Subsidiaries and except for warranties implied by law.
3. AFFIRMATIVE COVENANTS
So long as Centennial or any of its successors or assigns owns of
record or beneficially holds any Infos Common Stock, Infos USA shall, and Infos
LUX shall ensure that Infos USA and the Subsidiaries, and any other subsidiaries
acquired by Infos USA after the date of this Agreement, shall:
3.1 Maintenance of Records. Keep adequate records and books of account,
in which complete entries will be made in accordance with GAAP consistently
applied, subject to year end adjustments, reflecting all financial transactions,
including complete records of all accounts, as defined in the Massachusetts
Uniform Commercial Code.
3.2 Maintenance of Properties. Maintain, keep, and preserve all of its
properties (tangible and intangible) necessary or useful in the proper conduct
of their businesses in good working order and condition, ordinary wear and tear
excepted, and maintain in full force and effect all rights, patents, licenses,
permits and privileges necessary for the proper conduct of its business.
3.3 Conduct of Business. Continue to engage in the same general type of
businesses as conducted by them on the date of this Agreement or, in the case of
any subsidiary acquired after the date of this Agreement, the same general type
of business as conducted by it on the date of acquisition.
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3.4 Maintenance of Insurance. Maintain insurance with financially sound
and reputable insurance companies or associations in such amounts and covering
such risks as are usually carried by companies engaged in the same or a similar
business and similarly situated, which insurance may provide for reasonable
deductibility from coverage thereof.
3.5 Compliance With Laws. Comply in all material respects with
applicable laws, rules, regulations, and orders, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments, and governmental charges imposed upon them or upon their property,
noncompliance with which would have a material and adverse effect on their
business and operations.
3.6 Right of Inspection. At any reasonable time and from time to time,
permit Centennial or any agent or representative thereof to examine and make
copies of and abstracts from the records, books of account and such other
documents of, and visit the properties of the Infos USA, the Subsidiaries, and
any after-acquired subsidiaries and to discuss the affairs, finances, and
accounts of Infos USA, the Subsidiaries and any after-acquired subsidiaries with
any of their respective officers, directors and independent accountants so long
as said activities do not unreasonably disrupt their businesses.
3.7 Reporting Requirements. Furnish to Centennial:
(a) Quarterly Financial Statements. As soon as available and
in any event within forty-five (45) days after the end of each quarter ending
March 31, June 30 and September 30, unaudited balance sheets of Infos USA, the
Subsidiaries and any after-acquired subsidiary and, for the period commencing at
the beginning of the then current fiscal year through the end of most recently
completed fiscal quarter, unaudited statements of operations and changes in
financial position of Infos USA, the Subsidiaries or any after-acquired
subsidiary, all prepared in accordance with GAAP consistently applied, subject
to year end adjustments, and certified by an officer of Infos USA;
(b) Annual Financial Statements. As soon as available and in
any event within ninety (90) days after the end of each fiscal year, a copy of
the audited annual financial report for such fiscal year, including a balance
sheet of the Infos USA, the Subsidiaries and any after-acquired subsidiary as of
the end of such fiscal year and a statement of income and retained earnings of
Infos USA, the Subsidiaries and any after-acquired subsidiary for such fiscal
year, and a statement of cash flow of Infos USA, the Subsidiaries and any
after-acquired subsidiary for such fiscal year, all in reasonable detail and
stating in comparative form the respective figures for the corresponding date
and period in the prior fiscal year and all prepared in accordance with GAAP
consistently applied and certified by independent accountants to the reasonable
satisfaction of Centennial;
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(c) Notice of Litigation. Promptly after the commencement
thereof, notice of all actions, suits, and proceedings before any court or
governmental department, commission, board, bureau, agency, or instrumentality,
domestic or foreign, affecting Infos USA, the Subsidiaries or any after-acquired
subsidiary, which, if determined adversely to Infos USA, the Subsidiaries or any
after-acquired subsidiary, could have a material adverse effect on the financial
condition, properties, or operations of Infos USA, the Subsidiaries or any
after-acquired subsidiary; and
(d) General Information. Such other information respecting the
condition or operations, financial or otherwise, receivables, inventory,
machinery or equipment of Infos USA, the Subsidiaries or any after acquired
subsidiaries as Centennial may from time to time reasonably request.
3.8 Payment of Taxes and Claims. Pay when due all taxes, assessments,
governmental charges or levies imposed upon it or its income for services,
labor, materials and supplies, in each of such cases which, if unpaid, might
become a lien or charge upon any of its properties or assets; but Infos USA, the
Subsidiaries and any after-acquired subsidiary shall not be required to pay any
such tax, assessment, charge, levy or claim so long as: (1) the validity thereof
shall be contested in good faith by appropriate proceedings; (2) no proceedings
in foreclosure or for the sale of any property of Infos USA, the Subsidiaries or
any after-acquired subsidiary on account of any such tax, assessment, charge,
levy of claim shall have been commenced (or such proceedings shall have been
stayed pending the disposition of such contest of validity); (3) Infos USA, the
Subsidiaries and any after-acquired subsidiary shall have set aside on its books
adequate reserves with respect thereto and (4) such tax, assessment, charge,
levy or claim shall not have caused a material, adverse effect on the financial
condition or Infos USA, the Subsidiaries or any after-acquired subsidiary.
3.9 Maintenance of Existence. Preserve and maintain their corporate
existence and good corporate standing in the jurisdiction of their
incorporation, and qualify and remain qualified as a foreign corporation in each
jurisdiction in which such qualification is required and in which the failure to
be so qualified would have a material adverse effect on the business, operations
or financial statements of Infos USA, the Subsidiaries or any after-acquired
subsidiary.
3.10 Use of Proceeds. Use the proceeds of the Cash Consideration only
as specified in Section 1.3 herein.
3.11 Payment of Other Obligations. Infos USA, the Subsidiaries and any
after-acquired subsidiary will punctually and promptly make all payments and
perform all other obligations which may be required of them with respect to any
indebtedness (whether for money borrowed, goods purchased, services rendered or
however such indebtedness may otherwise arise) owing to persons, firms or
corporations, including, without limitation, indebtedness which may be secured
by a security interest in the assets of Infos USA, the Subsidiaries or any
after-acquired subsidiary or the property of Infos USA, the Subsidiaries or any
after-acquired subsidiary, and all obligations under the terms of any lease in
which Infos USA, the Subsidiaries or any after-acquired subsidiary is the
lessee. The provisions of this section shall not preclude Infos USA, the
Subsidiaries or any after-
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acquired subsidiary from contesting in good faith and diligently defending
against any such indebtedness or obligation.
3.12 Board of Directors. Notify Centennial of all annual and special
meetings of the Board of Directors of Infos USA, the Subsidiaries and any
after-acquired subsidiary at least fifteen (15) days prior to the date of such
meeting. Centennial shall have the right to nominate one (1) member of the Board
of Directors of Infos USA, and Info LUX agrees to vote in favor of the election
of such nominee. If the director nominated by Centennial dies, retires, resigns
or otherwise ceases to serve as a director, Centennial shall have the right to
nominate his or her replacement and Info LUX agrees to vote in favor of the
election of such nominee. In the event Centennial does not exercise its right to
nominate a member of the Board of Directors of Infos USA, Centennial shall have
the right to have a representative attend all special and annual meetings of the
Board of Directors of Infos USA.
3.13 Exclusive Dealings. The Infos Corporations (nor any employee,
agent or representative on their behalf) will not, on or before the Closing Date
or the termination of the obligations hereunder, directly or indirectly,
encourage, invite, negotiate, or pursue any other offers concerning the possible
sale of the Infos Shares or the businesses or assets of the Infos Corporations
or the Subsidiaries.
4. NEGATIVE COVENANTS
So long as Centennial or any of its successors or assigns owns of
records or beneficially holds any Infos Common Stock, Infos USA and each of the
Subsidiaries shall not, and Infos LUX shall not permit Infos USA or the
Subsidiaries, or any other subsidiaries acquired after the date of this
Agreement, to:
4.1 Mergers or Disposition of Assets. Without the prior written consent
of Centennial alter the capital structure of Infos USA, the Subsidiaries or any
after-acquired subsidiary, including, without limitation, merge or consolidate
with, or sell, assign, lease, or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of their
assets (whether now owned or hereafter acquired) to any person, or acquire all
or substantially all of the assets or the business of any person.
4.2 Sale of Assets. Without the prior written consent of Centennial,
sell, lease, assign, transfer, or otherwise dispose of, any of its now owned or
hereafter acquired, assets, except for: (1) inventory disposed of in the
ordinary course of business; or (2) the sale or other disposition of assets no
longer used or useful in the conduct of its business.
4.3 Transaction Outside the Ordinary Course of Business. Except as
provided herein, enter into any transaction that is not in the usual and
ordinary course of the businesses of Infos USA, the Subsidiaries or any
after-acquired subsidiary.
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4.4 Transactions With Affiliates. Except as provided herein, enter into
any transaction, including, without limitation, the purchase, sale, or exchange
of property or the rendering of any service, with any affiliate, or the making
of advances to any affiliates except in the ordinary course of business and
pursuant to the reasonable requirements of Infos USA's, the Subsidiaries' or any
after-acquired subsidiary's business and upon fair and reasonable terms no less
favorable to Infos USA, the Subsidiaries or any after-acquired subsidiary than
would obtain in a comparable arm's- length transaction with a person not an
affiliate.
4.5 Change in Capitalization. Without the prior written consent of
Centennial: (i) make any change in their corporate charters or by-laws, or in
their authorized or issued shares; (ii) declare, pay or make any dividend or
other distribution or payment with respect to their shares of capital stock nor
redeem or repurchase any such shares; nor (iii) issue or sell any shares of
their capital stock.
5. REPRESENTATIONS AND WARRANTIES OF CENTENNIAL.
Centennial represents and warrants to the Infos Corporations, upon
which representations and warranties the Infos Corporations rely, and which
representations and warranties shall survive Closing for a period of one (1)
year as follows:
5.1 Organization and Related Matters. Centennial is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full corporate power to enter into this Agreement and to
consummate the transactions contemplated hereby.
5.2 Authorization of Agreement. The execution, delivery and performance
of this Agreement by Centennial have been duly and validly authorized and
approved by the Board of Directors of Centennial and no other proceedings on the
part of Centennial are necessary to authorize the execution, delivery and
performance of this Agreement by Centennial including the issuance by Centennial
of the Centennial Shares. Neither the execution, delivery and performance of
this Agreement and the consummation by Centennial, nor compliance with the terms
and provisions of this Agreement by Centennial, will conflict with or result in
a breach of any of the terms, conditions or provisions of the Certificate of
Incorporation or bylaws of Centennial.
5.3 Capitalization of Centennial. Centennial's authorized capital stock
consists of 15,000,000 shares of Centennial Common Stock, $.01 par value per
share, of which 7,479,560 shares were issued and outstanding on July 31, 1996;
and 1,000,000 shares of Preferred Stock, $.01 par value per share, none of which
are outstanding. All such issued and outstanding shares of Common Stock have
been and on the Closing Date will be duly and validly issued and are, or will be
on such date, fully paid and non-assessable.
5.4 Financial Representations. Centennial has delivered or, before
Closing, will deliver to the Infos Corporations, true and complete copies of its
Annual Report on Form 10-K for the fiscal year ended June 30, 1995 and interim
reports on Form 10-Q for the fiscal quarters ended
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September 30, 1995, December 31, 1995 and March 31, 1996 (the "Reports") all of
which were duly filed with the U. S. Securities and Exchange Commission. The
Reports and the financial statements contained therein are in accordance with
the books and records of Centennial, and (i) present fairly and correctly the
financial position of Centennial as of the respective dates and for the
respective periods indicated, (ii) include all required material adjustments,
and (iii) have been prepared in accordance with GAAP applied on a basis
consistent with prior periods and practices.
6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CENTENNIAL.
The obligations of Centennial to acquire the Infos Shares at the
Closing are subject to the fulfillment by the Infos Corporations, or waiver by
Centennial, of the following conditions on or before the Closing Date:
6.1 Ownership of the Infos Common Stock. The authorized capital stock
of Infos USA shall consist of 3,000 shares of Common Stock, $.01 par value per
share; the 1,000 shares of Common Stock issued and outstanding constitute all of
the issued and outstanding shares of Common Stock and have been duly authorized,
are validly issued and outstanding, fully-paid, nonassessable and free of
preemptive rights and are held of record and beneficially by Infos LUX.
6.2 Ownership of the Subsidiaries. All of the Subsidiaries shall have
become wholly-owned subsidiaries of Infos USA in accordance with the laws of the
State of Delaware and of each jurisdiction of the respective Subsidiary. Each
Subsidiary shall have obtained all necessary and required consents, approvals,
permits and other forms of authorization from the government authorities of
their respective jurisdictions to have become subsidiaries of Infos USA.
6.3 Representations and Warranties of the Infos Corporations to be True
and Correct. The representations and warranties of the Infos Corporations set
forth herein shall be true and correct in all respects on the Closing Date with
the same effect as though made at such time. The Infos Corporations shall have
performed all obligations and complied with all covenants and conditions
required by this Agreement to be performed or complied with by them or it at or
prior to the Closing Date.
6.4 Opinions of Counsel to the Infos Corporations. Centennial shall
have received from Xxxxxxxxxx & Xxxx, P.C., counsel to Infos USA, an opinion
dated as of the Closing Date in the form and substance satisfactory to
Centennial as to the matters set forth in Exhibit 6.4(a) and from counsel to
Infos LUX, an opinion dated as of the Closing Date in the form and substance
satisfactory to Centennial as to the matters set forth in Exhibit 6.4(b).
6.5 Opinions of Counsel to the Subsidiaries. Centennial shall have
received from local counsel to each of the Subsidiaries reasonably satisfactory
to Centennial, an opinion dated as of the Closing Date in form and substance
reasonably satisfactory to Centennial as to the matters set forth in Exhibit 6.5
attached to this Agreement.
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6.6 Required Consents. The Infos Corporations and the Subsidiaries
shall have obtained or shall have caused the Subsidiaries to obtain the consent
or approval of each person whose consent or approval is required in connection
with the execution, delivery and performance of this Agreement.
6.7 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 Centennial to own the Infos Shares after the Closing
Date or which might subject the Infos Corporations or the Subsidiaries to
material liability.
6.8 Satisfaction of Debts and Liabilities to Stockholders. The Infos
Corporations and the Subsidiaries shall have satisfied or otherwise settled all
of their debts and liabilities owed to their respective stockholders, including
but not limited to all notes, interest payments and dividends, and the
stockholders shall deliver to Centennial general releases, in a form
satisfactory to Centennial and its counsel, of any and all claims each has
against Infos from the beginning of time through the Closing Date.
6.9 Due Diligence. Centennial shall have completed to its satisfaction
due diligence with respect to the assets, properties, financial condition,
prospects and business of the Infos Corporations and the Subsidiaries.
7. INDEMNIFICATION
7.1 Subjects Indemnified Against by the Infos Corporations. Infos USA
and Infos LUX jointly and severally agree to defend, indemnify and hold harmless
Centennial and its subsidiaries, and their officers, directors, employees and
agents, as well as their respective successors and assigns (collectively, an
"Indemnified Party") , from and against any and all costs, obligations,
liabilities, damages, losses and expenses suffered by such Indemnified Party,
resulting from (i) any breach of warranty or agreement or non-fulfillment of any
obligation on the part of the Infos Corporations or the Subsidiaries under this
Agreement (including the schedules to this Agreement) to the extent not waived
by Centennial, (ii) any material misrepresentation in this Agreement or in any
schedule or other instrument furnished by the Infos Corporations to Centennial
hereunder or any failure to state herein or in any such schedule, certificate or
instrument any material fact required by the terms hereof or therein to be
stated or necessary to be stated in order to make the statements made herein or
therein not misleading, and (iii) all demands, assessments, judgments,
settlements, reasonable costs and reasonable legal and other expenses arising
from or in connection with any action, suit, proceeding or claim by any third
party resulting in damage or loss to Infos USA, the Subsidiaries, Centennial or
any subsidiary of Centennial as a consequence of any such misrepresentation,
breach of warranty or nonfulfillment of obligation.
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7.2 Conditions to Indemnification. The obligations and liabilities of
Infos LUX and Infos USA hereunder with respect to its indemnities pursuant to
this Section, resulting from any claim or other assertion of liability by third
parties, shall be subject to the following terms and conditions:
(a) The Indemnified Party must give the other party or
parties, as the case may be (the "Indemnifying Party"), prompt notice of (i) any
claim or potential claim, (ii) the commencement of any action or proceeding, or
(iii) the occurrence of any other event the Indemnified Party reasonably
believes shall give rise to the events specified in clauses (i) and (ii) and the
indemnification rights under this Section, provided, however, that failure to
give such notice promptly shall not affect the liability of the Indemnifying
Party under this Agreement unless the failure to give such notice promptly
adversely affects the Indemnified Party's ability to defend itself against the
claim giving rise to Indemnified Party's claim for indemnification or to cure
the default giving rise to such claim.
(b) If the Indemnifying Party within reasonable time after
notice of a claim hereunder fails to defend such claim, the Indemnified Party
shall be entitled to undertake the defense, compromise or settlement of such
claim at the reasonable expense of and for the account and risk of the
Indemnifying Party subject to the right of the Indemnifying Party to cooperate
in the defense of such claim at any time prior to the settlement, compromise or
final determination thereof.
(c) The Indemnifying Party will not, without Indemnified
Party's written consent, settle or compromise any claim (to the extent notice
was given as provided in Section 7.2(a) above), or consent to any entry or
judgment which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the Indemnified Party of a release from all
liability with respect to such claim, provided, however, that should the
Indemnified Party assume the control of the defense of a claim pursuant to
Section 7.2(b), the Indemnified Party shall have the authority to settle or
compromise any claim or consent to any entry of judgment, without the
Indemnifying Party's prior consent.
7.3 Payment for Indemnification. Infos LUX shall pay to Centennial the
amount of established claims for indemnification within fifteen (15) days after
the establishment thereof (the "Due Date") in cash or by certified check.
Centennial may set off the amount of any established claim due it from Infos LUX
against any payment due to Infos LUX from Centennial.
7.4 Survival of Indemnification. The indemnification provided in this
Section 7 shall survive for a period of one (1) year following the Closing Date
for those representations, warranties and covenants of the Infos Corporations
contained herein or in any schedule or certificate delivered hereunder which are
fully performed and completed on or before the Closing Date, to the extent not
waived by Centennial. The indemnification provided in this Section 7 shall
survive the Closing Date and remain in full force and effect for all other
representations, warranties and covenants.
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7.5 Intent of Parties. Any remedies of Centennial shall be cumulative
and not exclusive. Specifically, but not by way of limitation, the parties make
no attempt to limit any claims based on common law fraud or other similar
remedies.
8. REGISTRATION RIGHTS.
8.1 Registration of Shares. If, at any time, Infos USA proposes to
register any of the Infos Common Stock under the Act or similar federal statute
(other than on Form S-8 or any successor form under the Act for the registration
of securities to be offered to employees of an issuer pursuant to an employee
benefit plan), Infos USA shall give at least 45 days' prior written notice
thereof to Centennial, and, upon the request of Centennial, include in such
registration, at the cost and expense of Infos USA, any of the Infos Common
Stock then held by Centennial. Infos USA shall effect such registration referred
to in this Section 8 at its own cost and expense, exclusive of any underwriting
commissions or expenses relating to the sale of the Infos Common Stock, and
shall maintain the effectiveness of such registration so long as the expense of
doing so is not unduly burdensome and, in any event, for a period of twelve (12)
months subsequent to the effective date of such registration.
8.2 Compliance with Securities Rules and Regulations. In connection
with any registration referred to in this Section 8, Infos USA shall comply with
all applicable rules and regulations of the Securities and Exchange Commission,
or of any similar federal commission, including the Rules and Regulations under
the Act, and shall make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) covering a period
of at least 12 months, but not more than 18 months, beginning with the first
month after the effective date of the registration statement, which earnings
statement will satisfy the provisions of Section 11(a) of the Act.
8.3 Obligations of Infos USA. Infos USA agrees to furnish to
Centennial, at the sole expense of Infos USA, such number of prospectuses
conforming to the requirements of the Act or any similar federal statute, and
the Rules and Regulations thereunder, relating to the shares subject thereto as
may from time to time be reasonably requested by Centennial. Further, Infos USA
shall, at its own expense in connection with any registration under this Section
8:
(a) Notify Centennial, at any time when a prospectus relating
to the Infos Common Stock is required to be delivered under the Act, of the
happening of any event which Infos USA, in its best judgment, believes would
make a supplement to, or an amendment of, such prospectus necessary or
appropriate, and, at the request of Centennial, prepare and furnish thereto a
reasonable number of copies of any supplement to, or any amendment of, such
prospectus that may be necessary so that, as thereafter delivered to the
purchasers of the Infos Common Stock, such prospectus shall not include any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
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(b) Use its best efforts to register or qualify the securities
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as Centennial shall reasonably request, and do any and all
other acts and things which may be necessary or advisable to enable Centennial,
or any underwriter which may offer such shares for Centennial, to consummate the
disposition thereof in such jurisdictions, during a period of six months
subsequent to the effective date of such registration statement; provided,
however, that in no event shall Infos USA be obligated to qualify to do business
in any jurisdiction where it is not then so qualified or to take any action
which would subject it to the service of process in suits other than those
arising out of the offer of sale of the securities covered by such registration
statement in any jurisdiction where it is not then so subject.
8.4 Indemnification. In the event of the registration of any Infos
Common Stock of Infos USA owned by Centennial, Infos USA shall indemnify
Centennial, and shall hold Centennial harmless against any losses, claims,
damages or liabilities, joint or several, to which Centennial may become subject
under the Act or any similar federal statute, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, or are based upon, any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which the Infos
Common Stock are registered under the Act or similar federal statute, any final
prospectus contained therein, or any amendment or supplement thereto, or arise
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse Centennial upon a good faith mutual
agreement of the parties for any legal or any other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
damage, liability or action, provided however, that to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, an actual or
alleged untrue statement or omission made in such registration statement, final
prospectus, amendment or supplement in reliance upon, and in conformity with,
written information furnished to Infos USA through an instrument duly executed
by Centennial specifically for use in the preparation thereof, Infos USA shall
not be so liable to Centennial.
9. FUTURE SALES OF SHARES OF CAPITAL STOCK OF INFOS USA.
9.1 Sales of Stock by Infos USA. For so long as Centennial owns any
shares of Infos Common Stock, if Infos USA shall sell any shares of capital
stock in a private financing, then, if the valuation placed on Infos USA is less
than $17,000,000, Infos USA shall issue Centennial a number of additional shares
of Common Stock to preserve Centennial's equity interest in Infos USA.
9.2 Right of First Refusal of Centennial. For so long as Centennial
owns any Infos Common Stock, if Infos USA shall receive an offer to purchase and
acquire any shares of capital stock of Infos USA (the "Offered Securities"),
then Infos USA shall, prior to any issuance or sale by Infos USA of any of its
securities (other than debt securities with no equity feature), offer to
Centennial by written notice the right, for a period of thirty (30) days, to
purchase all of the Offered Securities for cash at an amount equal to the price
or other consideration offered to Infos USA for
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such securities; provided, however, that the first refusal rights of Centennial
pursuant to this Section 9.2 shall not apply to securities issued: (i) as a
stock dividend or upon any subdivision of shares of Common Stock, provided that
the securities issued pursuant to such stock dividend or subdivision are limited
to additional shares of Common Stock; and (ii) pursuant to a firm commitment
underwritten public offering. Infos USA's written notice to Centennial shall
describe the securities proposed to be issued by Infos USA and specify the
number, price and payment terms. Centennial may accept Infos USA's offer as to
the full number of securities offered to it by written notice thereof given by
it to Infos USA prior to the expiration of the aforesaid thirty (30) day period,
in which event Infos USA shall promptly sell and Centennial shall buy, upon the
terms specified, the Offered Securities. Infos USA shall be free at any time
prior to ninety (90) days following the expiration of the thirty (30) day period
following its notice of offer to Centennial, to offer and sell to any third
party or parties all but not less than all of the Offered Securities at a price
and on payment terms no less favorable to Infos USA than those specified in such
notice of offer to Centennial. However, if such third party sale or sales are
not consummated within such ninety (90) day period, Infos USA shall not sell
such securities without again complying with this Section 9.2.
9.3 Right of First Refusal of Infos USA. If Centennial shall receive an
offer to purchase and acquire any of its Infos Shares ("Centennial's Offered
Securities"), then Centennial shall, prior to any sales of its Infos Shares,
offer to Infos USA by written notice the right, for a period of thirty (30)
days, to purchase all of Centennial's Offered Securities for cash at an amount
equal to the price or other consideration offered to Centennial for such
securities; provided, however, that the first refusal rights of Infos USA
pursuant to this Section 9.3 shall not apply if Infos USA has completed an
initial public offering. Centennial's written notice to Infos USA shall describe
the securities proposed to be sold by Centennial and specify the number, price
and payment terms. Infos USA may accept Centennial's offer as to the full number
of Centennial's Offered Securities by written notice thereof given by it to
Centennial prior to the expiration of the aforesaid thirty (30) day period, in
which event Centennial shall promptly sell and Infos USA shall buy, upon the
terms specified, Centennial's Offered Securities. Centennial shall be free at
any time prior to ninety (90) days following the expiration of the thirty (30)
day period following its notice of offer to Infos USA, to offer and sell to any
third party or parties all but not less than all of Centennial's Offered
Securities at a price and on payment terms no less favorable to Centennial than
those specified in such notice of offer to Infos USA. However, if such third
party sale or sales are not consummated within such ninety (90) day period,
Centennial shall not sell such securities without again complying with this
Section 9.3.
9.4 Right of Participation in Sales.
(a) If at any time Infos LUX desires to sell all or any part
of its Infos Common Stock to any person or entity (the "Purchaser"), Centennial
shall have the right to sell to the Purchaser, as a condition to such sale by
Infos LUX, at the same price per share and on the same terms and conditions as
involved in such sale by Infos LUX, the same percentage of the Infos Common
Stock owned by Centennial as the Infos Common Stock to be sold by Infos LUX to
the
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Purchaser represents with respect to the Infos Common Stock owned by Infos LUX
immediately prior to the sale of any of its Infos Common Stock to the Purchaser.
(b) If Centennial wishes to so participate in any sale under
this Section 9.4, it shall notify Infos LUX in writing of such intention as soon
as practicable after Centennial's receipt of the notice made pursuant to Section
9.2, and in any event within thirty (30) days after the date such notice was
made. Centennial's notification of its wishes to participate in any sale under
this Section 9.4 shall be delivered to Infos LUX in accordance with Section 10.5
below.
(c) Infos LUX and, if it so elects, Centennial, shall sell to
the Purchaser all, or at the option of the Purchaser, any part, of the Infos
Common Stock proposed to be sold by them at not less than the price and upon
other terms and conditions, if any, not more favorable to the Purchaser than
those in the offer as described in the notice to Centennial under Section 9.2;
provided, however, that any purchase of less than all of such Infos Common Stock
by the Purchaser shall be made from Centennial pro rata based upon the relative
amount of the Infos Common Stock that Centennial is otherwise entitled to sell
pursuant to Section 9.4(a).
9.5 No Limitation. This Section 9 shall in no way be deemed to limit or
restrict the rights and obligations of the parties hereto under Section 4.5
hereof.
10. GENERAL.
10.1 Survival of Representations, Warranties and Covenants. The
representations, warranties and covenants of the Infos Corporations contained
herein or in any schedule or certificate delivered hereunder which are fully
performed and completed on or before the Closing Date, to the extent not waived
by Centennial, shall survive the Closing Date for a period of one (1) year,
shall remain in full force and effect and shall be unaffected by any
investigation made by Centennial hereunder. All other representations,
warranties and covenants of the Infos Corporations contained herein or in any
schedule or certificate delivered hereunder shall survive the Closing Date,
shall remain in full force and effect and shall be unaffected by any
investigation made by Centennial hereunder. All covenants and agreements
contained herein which are to be performed or fulfilled after the Closing Date
shall survive and remain in full force and effect.
10.2 Press Releases. Unless approved in advance by Centennial, neither
of the Infos Corporations nor any of the Subsidiaries shall issue any press
release or written statement for general circulation relating to the
transactions contemplated hereby, except as required by law in the opinion of
their counsel.
10.3 Payment of Expenses. Whether or not the transactions contemplated
hereby are consummated, Centennial shall pay its own expenses and Infos USA
shall pay its own and Infos LUX's and the Subsidiaries' expenses in connection
with the negotiation, authorization, preparation, execution and performance of
this Agreement, including, without limitation, all fees and expenses of
investment banking firms, agents, representatives, counsel and accountants.
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10.4 Governing Law. This Agreement shall be governed in all respects,
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the Commonwealth of Massachusetts in which it has been executed and in
which it has a situs, without regard to its conflict of laws provisions. If any
provision of this Agreement shall be held invalid by a court with jurisdiction
over the parties to this Agreement, then and in that event such provision shall
be deleted from the Agreement, which shall then be construed to give effect to
the remaining provisions thereof. Each of the Infos Corporations and Centennial
consents to the jurisdiction of the courts of the Commonwealth of Massachusetts,
and any federal court located therein, and to the appropriateness of the venue
of such courts, in connection with any dispute which may arise pursuant to this
Agreement or is related to the transactions contemplated hereby.
10.5 Notices. Any payments, notices or other communications required or
permitted hereunder shall be given in writing and deemed to have been properly
given if and when delivered personally or sent by registered, certified or
overnight mail, return receipt requested, postage prepaid, addressed as follows:
if to Centennial: Centennial Technologies, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx
Attention: Xxxxxxx Xxxxx,
Chief Executive Officer
with a copy to: X'Xxxxxx, Xxxxxx & Xxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esquire
if to Infos LUX: Infos International, X.X.
Xxx xx Xxxx, 0
Xxxxxxxxxx
Xxxxxxxxx: Xxxxx Xxxxxxxx, President
with a copy to: Xxxxxxx X. Xxxx, Esquire
Xxxxxxxxxx & Xxxx, P.C.
Two Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
if to Infos USA: Infos International, Inc.
00X Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, President
with a copy to: Xxxxxxx X. Xxxx, Esquire
Xxxxxxxxxx & Xxxx, P.C.
Two Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
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or such other address as shall be furnished in writing by any party, and any
such payment, notice or communication shall be deemed to have been made or given
three business days after the date so mailed (except that a notice of change of
address shall not be deemed to have been given until received by the addressee)
or on the date of actual receipt, whichever first occurs.
10.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors,
assigns, heirs, executors, administrators and legal representatives, provided,
however, that neither of the Infos Corporations shall assign any of their rights
or delegate any of its obligations hereunder to any party without the prior
written consent of Centennial.
10.7 Headings. The descriptive headings of the Sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
10.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall considered one and the same agreement.
10.9 Waiver. The failure of any party to this Agreement at any time or
times to require performance of any provision hereof shall in no manner affect
such party's right at a later time to enforce the same. No waiver by any party
of any condition, or of the breach of any term, covenant, representation or
warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or the breach of any other term, covenant, representation or warranty
of this Agreement.
10.10 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the transactions contemplated herein,
and supersedes all prior agreements and understandings, whether written or oral,
among the parties hereto with respect to the subject matter of this Agreement.
10.11 Additional Actions. Centennial and the Infos Corporations agree
to execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable in
order to consummate or implement expeditiously the transactions contemplated by
this Agreement.
10.12 Remedies. The parties hereto acknowledge that a remedy at law may
be inadequate as to any actual breach of this Agreement, and that in the case of
any actual breach of this Agreement the non-breaching party shall be entitled to
preliminary and permanent injunctions or other equitable remedies (in additional
legal remedies) in any court of competent jurisdiction in accordance with this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been signed by a duly authorized
officers of Centennial Technologies, Inc., Infos International, S.A. and Infos
International, Inc. as of the day and year first above written.
CENTENNIAL TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Xxxxxxx Xxxxx
Chief Executive Officer
INFOS INTERNATIONAL, S.A.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
President
INFOS INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxx
President
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