EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
effective as of January 3, 2006, by and between TRANS-INDUSTRIES, INC., a
Delaware corporation (the "Company"), and CLARK-RELIANCE CORPORATION, a Delaware
corporation (the "Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company, newly issued shares of the
Company's Common Stock, par value $0.10 per share (the "Common Stock"), at the
price per share and upon and subject to the other terms and conditions set forth
in this Agreement;
ACCORDINGLY, the Company and the Purchaser hereby agree as follows:
1. AUTHORIZATION OF SALE OF THE COMMON STOCK
The Company has authorized the issuance and sale to the Purchaser of shares
of Common Stock with an aggregate value of $250,000, as determined in Section
2.2 below, all upon and subject to the terms and conditions set forth in this
Agreement.
2. AGREEMENT TO SELL AND PURCHASE THE COMMON STOCK
2.1 PURCHASE AND SALE
Upon the terms and subject to the terms and conditions set forth in this
Agreement, at the Closing (as defined below), the Company shall issue and sell
to the Purchaser, and the Purchaser shall purchase from the Company, 732,064
shares of Common Stock. The shares of Common Stock to be issued and sold by the
Company to the Purchaser hereunder are referred to herein collectively as the
"Purchased Shares."
2.2 PURCHASE PRICE
The total purchase price payable to the Company by the Purchaser for all of
the Purchased Shares to be issued and sold to such Purchaser hereunder shall be
equal to $250,000. The per share purchase price of the Purchased Shares shall be
$0.3415 (equal to the higher of (1) the average closing purchase price of the
Common Stock as listed on the NASDAQ SmallCap Market or Pink Sheets for the 30
calendar day period preceding the Closing Date (as defined below); (2) the
listed closing price on the day before the Closing Date; or (3) in the event the
purchase will equal or exceed 20% or more of the Common Stock or voting power
previously outstanding, the per share book value of the Common Stock.)
2.3 USE OF PROCEEDS
The Company shall use the proceeds of the sale of the Purchased Shares to
pay the fees and expenses incurred by the Company in connection with the
transactions contemplated by this Agreement and for working-capital and other
general corporate purposes, including the payment of accounts payable,
delinquent taxes and indebtedness to banks.
3. THE CLOSING; CLOSING ACTIONS
3.1 THE CLOSING
The consummation of the purchase and sale of the Purchased Shares and the
other transactions and deliveries contemplated by this Agreement (the "Closing")
shall take place at the offices of Calfee, Halter & Griswold LLP at 1400
McDonald Investment Center, 800 Superior Avenue, Cleveland, Ohio 44114,
simultaneously with the execution and delivery of this Agreement by the Company
and the Purchaser on the date of this Agreement (the "Closing Date").
3.2 ACTIONS AT OR PRIOR TO THE CLOSING
In connection with the execution and delivery of this Agreement, the
following actions shall occur simultaneously with, or prior to, the execution
and delivery of this Agreement (the "Closing Actions").
(I) The Company shall deliver to the Purchaser a certificate of the
Secretary of State of the State of Delaware, dated as of the Closing Date, as to
the status of the Company as a corporation in good standing under the laws of
the State of Delaware as of the Closing Date.
(II) The Company shall deliver to the Purchaser a certificate executed
by its Secretary, in form and substance satisfactory to the Purchaser,
certifying the resolutions authorizing the transactions contemplated by this
Agreement and certain incumbency matters.
(III) The Company shall deliver to the Purchaser one or more
certificates or other instruments representing the Purchased Shares being
purchased by the Purchaser at the Closing pursuant to Section 2.1, which
certificates and instruments shall be in a form satisfactory to the Purchaser
and registered in the name of the Purchaser or such nominee or nominees as the
Purchaser may designate in writing to the Company, against receipt by the
Company of payment of the full amount of the Purchase Price for the Purchased
Shares either by check or by wire-transfer of immediately available funds to the
Company in accordance with wire-transfer instructions furnished by the Company
to the Purchaser at least two business days prior to the Closing Date.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Except (i) as disclosed in any Exchange Act Filings (as defined in Section 4.8
below) filed by the Company with the SEC subsequent to December 31, 2004 or (ii)
as disclosed in the Schedule of Exceptions attached to this Agreement as Exhibit
I, the Company hereby represents and warrants to the Purchaser as follows (which
representations and warranties shall be deemed to apply, where appropriate, to
each subsidiary of the Company):
4.1 ORGANIZATION AND QUALIFICATION
The Company is a corporation that has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware. The
Company has all requisite corporate power and authority to own and operate its
properties and assets and to conduct its business as it is presently being
conducted and as it is proposed to be conducted. The Company is duly qualified
as
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a foreign corporation to transact business in, and is in good standing in, each
jurisdiction in which its ownership, lease or operation of its properties or
assets, the nature of its activities or the conduct of its business makes such
qualification necessary, except for any failure or failures to be so qualified
could not, individually or in the aggregate, reasonably be expected to result in
a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, liabilities, business or prospects of the Company. Except as
disclosed in Section 4.7(d), the Company is not in violation or breach of any of
the terms, conditions or provisions of such Certificate of Incorporation or
By-Laws.
4.2 AUTHORIZATION
The Company has all requisite corporate power and authority to execute and
deliver (a) this Agreement, and (b) the Purchased Shares (collectively, the
"Transaction Documents"), and to perform its obligations under the Transaction
Documents. The execution and delivery by the Company of each of the Transaction
Documents and the performance by the Company of its obligations thereunder have
been duly authorized by all necessary corporate action on its part, and no other
corporate proceedings on its part are necessary to authorize its execution and
delivery of the Transaction Documents or its performance of its obligations
under the Transaction Documents.
4.3 PURCHASED SHARES
The Purchased Shares and the issuance, sale and delivery thereof upon the terms
and conditions set forth in this Agreement have been duly authorized by all
requisite action of the Board of Directors of the Company and all requisite
stockholder action. When issued and delivered to the Purchaser upon the terms
and conditions of this Agreement (and paid for as contemplated by this
Agreement), the Purchased Shares will be validly issued and fully paid and
nonassessable, with no personal liability attached to the ownership thereof and
not subject to any preemptive rights, rights of first refusal or other similar
rights of any stockholder of the Company or any other person, and, based upon
the representations and warranties of the Purchaser set forth in Section 5 of
this Agreement, shall have been issued in compliance with all applicable
securities laws.
4.4 DUE EXECUTION AND DELIVERY; BINDING OBLIGATIONS
Each Transaction Document has been duly executed and delivered by the Company,
and each such Transaction Document constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability and except as rights of indemnity or contribution may
be limited by federal or state securities or other laws or the public policy
underlying such laws.
4.5 NO CONFLICT OR VIOLATION
The execution and delivery by the Company of each Transaction Document, and the
performance by the Company of its obligations under each Transaction Document,
will not result in any conflict with, or result in a violation or breach of any
of the terms, conditions or provisions of, or constitute (with or without due
notice, lapse of time or both) a default under, or give rise to a right of
termination, cancellation or acceleration of any obligation under, or result in
the creation of any lien upon any of the properties or assets of the Company or
any of its subsidiaries under, (i) the
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Certificate of Incorporation or the By-Laws of the Company, or the certificate
of incorporation, articles of incorporation or by-laws of any subsidiary of the
Company, (ii) any material contract to which the Company or any of its
subsidiaries is a party or to which any of their respective properties or assets
is subject; or (iii) any law, statute, ordinance, rule, regulation, judgment,
order, decree, license or permit applicable to the Company or any of its
subsidiaries or to which any of their respective properties or assets is
subject.
4.6 CONSENTS AND APPROVALS
The execution and delivery by the Company of each Transaction Document, and the
performance by the Company of its obligations under each Transaction Document,
do not and will not require any consent, approval, license, permit, order or
authorization of, or any registration, notification, declaration or filing with,
any person (including any securities exchange or self-regulatory organization or
any governmental agency, entity or authority), except for (i) such as have been
obtained or made and are in full force and effect as of the Closing and (ii) the
filing of any notice with respect to the Closing with any governmental agency,
entity or authority which may be required subsequent to the Closing under the
Securities Act of 1933, as amended (the "Securities Act"), any state securities
laws, or the rules and regulations promulgated thereunder (and which, if
required, will be filed on a timely basis as may be so required).
4.7 CAPITALIZATION
(A) All outstanding shares of capital stock of the Company of every class
and series have been duly authorized and validly issued, free of any preemptive
or similar rights except such as have been fully complied with, and are fully
paid and nonassessable, with no liability attaching to the ownership thereof.
(B) Except as set forth in the (x) Certificate of Incorporation, or (y) the
Registration Rights Agreement, the Investor Rights Agreement, the Right of First
Refusal Agreement, or the Voting Agreement (all of which were entered into by
the Company and the various other parties thereto as of March 4, 2004, as they
may have been amended), there are no outstanding (i) rights of first offer or
first refusal, "drag-along" rights, "tag-along" rights or other similar rights
or agreements, arrangements or commitments of any character which obligate the
Company or any of its subsidiaries, or, to the knowledge of the Company, any
stockholder of the Company or other person, to transfer, sell or vote any
Company Securities (as defined below), (ii) obligations on the part of the
Company or any of its subsidiaries to repurchase, redeem or otherwise acquire
any Company Securities, (iii) liabilities on the part of the Company or any of
its subsidiaries for dividends declared or accumulated but unpaid with respect
to Company Securities, (iv) obligations on the part of the Company or any of its
subsidiaries to register for public sale any Company Securities, and (v)
obligations on the part of the Company or any of its subsidiaries or, to the
knowledge of the Company, of any stockholder of the Company or other person for
the voting of Company Securities in any manner whatsoever. "Company Securities"
means (i) shares of capital stock or other voting securities of the Company,
(ii) securities of the Company or any of its subsidiaries convertible into or
exchangeable for shares of capital stock or voting securities of the Company,
and (iii) options, warrants or other rights to acquire from the Company or any
of its subsidiaries.
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(C) Except as set forth in (x) the 1996 Stock Option Plan with respect to
options granted or to be granted thereunder, (y) warrants beneficially owned by
Harry E. Figgie, Jr. or (z) the Certificate of Incorporation, no Company
Securities will become issuable to any Person, nor will the conversion or
exercise price or exchange factor or ratio of any Company Securities be reduced,
pursuant to any so-called "anti-dilution" or similar adjustment provisions of
any Company Securities or pursuant to any agreements, arrangements or
commitments to which the Company or any of its subsidiaries is a party.
(D) The Company has no liability whatsoever to any stockholder, former
stockholder or other person, whether fixed or variable, accrued or contingent,
for the payment of any dividends, whether or not declared and whether cumulative
or non-cumulative, except for the Company's liability for cumulative dividends
accrued with respect to the shares of the Company's Series A Preferred Stock,
par value One Dollar ($1.00) ("Series A Preferred Stock"), presently issued and
outstanding in accordance with the terms thereof as set forth in the Certificate
of Incorporation. None of such dividends are currently due or payable, and the
total amount of the Company's liability for such accrued cumulative dividends on
the prior Preferred Stock as of December 31, 2005, was $41,057.
(E) All shares of capital stock and other equity or debt securities of the
Company and its subsidiaries (including any predecessors of the Company and such
subsidiaries) issued prior to the Closing have been offered, sold and issued
either pursuant to an effective registration statement under the Securities Act,
or in a transaction exempt from registration under the Securities Act, and in
compliance with all applicable state securities laws and all rules and
regulations promulgated under the Securities Act and applicable state securities
laws. Neither the Company nor any of its subsidiaries nor any predecessor
thereof has violated the Securities Act or any applicable state securities laws
or any rules or regulations promulgated thereunder in connection with the
issuance, sale and delivery of any securities.
4.8 EXCHANGE ACT FILINGS
The Company has timely filed all documents required to be filed by the
Company (the "Exchange Act Filings") with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (the "1934 Act"). As of their
respective filing dates, all Exchange Act Filings complied in all material
respects with the requirements of the 1934 Act, and none of the Exchange Act
Filings contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they were made, not
misleading. All financial statements of the Company included in any Exchange Act
Filings complied as to form in all material respects with the then applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, were prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
("GAAP") (except as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q and Regulation S-X) and fairly
present the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and changes in financial position for the periods then ended
(subject, in the case of unaudited statements, to normally, recurring year-end
audit adjustments).
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4.9 FINANCIAL STATEMENTS
All financial statements of the Company included, whether as exhibits or
otherwise, or incorporated by reference in the Exchange Act Filings have been
prepared from and in accordance with the books and records of the Company and
its subsidiaries (which have been maintained in accordance with good business
practices and are true and complete in all material respects), and fairly
present in all material respects the consolidated financial position and
consolidated results of operations, stockholders' equity and cash flows of the
Company and its subsidiaries as of the respective dates thereof and for the
respective periods indicated therein in accordance with GAAP, subject, in the
case of any unaudited financial statements included among such financial
statements, to normal, recurring year-end adjustments (which adjustments are not
material, individually or in the aggregate) and the lack of footnotes and other
presentation items required by GAAP. Since December 31, 2004, except as required
by applicable law or GAAP, there has been no change in any accounting principle,
procedure or practice followed by the Company or any of its subsidiaries or in
the method of applying any such principle, procedure or practice.
4.10 UNDISCLOSED LIABILITIES
The Company and its subsidiaries do not have any liabilities or obligations
whatsoever (whether matured or unmatured, known or unknown, fixed or contingent
or otherwise) of a type required to be reflected on or reserved against in, or
to be disclosed in the notes to, a balance sheet prepared in accordance with
GAAP, except (i) to the extent expressly reflected on or reserved against in, or
otherwise disclosed in the notes to, the Company's audited consolidated
financial statements as of and for the period ended December 31, 2004 (the
"Latest Audited Financial Statements"), as set forth in the company's Annual
Report on Form 10-K as filed with the SEC pursuant to the 1934 Act (the "Annual
Report"), (ii) for those liabilities or obligations expressly disclosed or
reflected in Exchange Act Filings filed by the Company with the SEC subsequent
to the Annual Report, and (iii) for those liabilities or obligations arising
since December 31, 2004 in the ordinary course of business consistent (in amount
and kind) with past practice, none of which, except as expressly set forth in
any Exchange Act Filings filed by the Company with the SEC subsequent to the
Annual Report, is a liability or obligation arising from any breach of contract,
breach of warranty, tort, infringement claim, violation of law or any action,
suit or proceeding.
4.11 NO MATERIAL CHANGE
Since December 31, 2004,
(A) there has been no material adverse change or any development involving
a prospective material adverse effect on or affecting the condition, financial
or otherwise, or the earnings, assets, liabilities, business or prospects of the
Company, whether or not arising in the ordinary course of business;
(B) there have been no transactions entered into by the Company other than
those in the ordinary course of business, which are material with respect to the
Company; and
(C) there has been no dividend or distribution of any kind declared, paid
or made by the Company on or with respect to any class or series of its capital
stock, nor has the Company repurchased or redeemed any shares of its capital
stock.
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4.12 ENVIRONMENTAL MATTERS
Except as could not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, liabilities, business or prospects of the Company,
(A) the Company is in compliance with all applicable Environmental Laws (as
defined below);
(B) the Company has all permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals;
(C) there are no pending or, to the knowledge of the Company, threatened
Environmental Claims (as defined below) against the Company; and
(D) under applicable law, there are no circumstances with respect to any
property or operations of the Company that are reasonably likely to form the
basis of an Environmental Claim against the Company.
For purposes of this Agreement, the following terms shall have the following
meanings: "Environmental Law" means any federal, state, local or municipal
statute, law, rule, regulation, ordinance, code, policy or rule of common law
and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the
environment, human health or safety, or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. "Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any way to
any Environmental Law.
4.13 NO DEFAULTS
The Company is not in material default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, deed, trust, note, lease, sublease, voting
agreement, voting trust, or other instrument or agreement to which the Company
is a party or by which it may be bound, or to which any of the property or
assets of the Company is subject, except for any such defaults as could not,
either individually or in the aggregate, reasonably be expected to result in a
material adverse effect on or affecting the condition, financial or otherwise,
or in the earnings, assets, liabilities, business or prospects of the Company.
4.14 LABOR MATTERS
There exists no material dispute with any employees or group of employees of the
Company, whether or not covered by any collective bargaining agreement, and, to
the knowledge of the Company, no such dispute is or has been threatened.
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4.15 NO ACTIONS
There are no actions, suits, proceedings or investigations before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened against or affecting the Company which
if determined adversely to the Company could, either individually or in the
aggregate, reasonably be expected to result in a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, liabilities,
business or prospects of the Company or which relates in any way to the
transactions contemplated by this Agreement, nor, to the knowledge of the
Company, is there any reasonable basis for any such action, suit or proceeding.
Neither the Company nor any of its subsidiaries is in default with respect to
any judgment, order or decree of any court or governmental agency or
instrumentality applicable the Company or any such subsidiary.
4.16 INTELLECTUAL PROPERTY
(A) The Company owns or is licensed to use or otherwise possesses the legal
right to use all patents, patent applications, inventions, trademarks, trade
names, applications for registration of trademarks, service marks, service mark
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets that are material to the business of the Company as now conducted and
as proposed to be conducted (collectively, "Proprietary Rights").
(B) The Company does not have any knowledge of, and the Company has not
given or received any notice of, any pending conflicts with or infringement of
the rights of others with respect to any Proprietary Rights or with respect to
any license of Proprietary Rights which are material to the business of the
Company.
(C) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the knowledge of the Company,
threatened, which involves any Proprietary Rights and which, if determined
adversely to the Company, could reasonably be expected to result in a material
adverse effect on the condition, financial or otherwise, or the earnings,
assets, liabilities, business or prospects of the Company, nor, to the knowledge
of the Company, is there any reasonable basis therefor.
4.17 PERMITS
The Company possesses and is operating in compliance with all material licenses,
certificates, consents, authorizations, approvals and permits from all
governmental agencies, entities and authorities of any foreign, federal, state,
local or other jurisdiction necessary to conduct the businesses now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such permit or any circumstance which would
lead it to believe that such proceedings are reasonably likely which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could reasonably be expected to result in a material adverse
effect on the condition, financial or otherwise, or the earnings, assets,
liabilities, business or prospects of the Company, nor, to the knowledge of the
Company, is there any reasonable basis therefor.
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4.18 COMPLIANCE
The Company has conducted and is conducting its business in compliance with all
applicable statutes, laws, rules, regulations, ordinances, codes, decisions,
decrees, directives and orders of any foreign or federal, state, local or other
jurisdiction, except where any failure to so comply could not, either
individually or in the aggregate, reasonably be expected to result in a material
adverse effect on the condition, financial or otherwise, or the earnings,
assets, liabilities, business or prospects of the Company.
4.19 TAXES
(A) (i) The Company and its subsidiaries (including their predecessors)
have timely filed in accordance with all applicable laws (taking into account
valid extensions) all tax returns, reports and declarations ("Tax Returns")
required to be filed by them, and all such Tax Returns are true, correct and
complete in all material respects, (ii) the Company and its subsidiaries
(including their predecessors) have timely paid all Taxes (as defined below) due
and required to be paid by them, including any Taxes levied upon any of their
properties, assets, income or franchises, (iii) all amounts required to be
collected or withheld by the Company and its subsidiaries (including their
predecessors) have been collected or withheld and any such amounts which are
required to be remitted to any taxing authority have been duly remitted, (iv) no
taxing authority in any jurisdiction in which the Company or any subsidiary
thereof (including any predecessors thereof) has not filed Tax Returns has made
a claim, assertion or threat that such non-filing entity is or may be subject to
taxation in such jurisdiction, (v) no audit, investigation or other proceeding
is in progress, pending, proposed or, to the knowledge of the Company,
threatened, in each case with regard to any Taxes or Tax Returns of the Company
or any subsidiary thereof (including their predecessors), and (vi) neither the
Company nor any subsidiary thereof nor any predecessor thereof is a party to or
bound by a Tax sharing or Tax allocation or similar agreement or arrangement.
The accruals and reserves for Taxes in the Latest Audited Financial Statements
were complete and adequate to cover any liability of the Company and its
subsidiaries for Taxes for the periods through the dates thereof. The Company is
not currently, nor has it been at any time, a "United States real property
holding corporation" as such term is defined in Section 897 of the Internal
Revenue Code of 1986, as amended.
(B) As used herein, "Taxes" means (i) all income taxes (including any tax
on or based upon net income, gross income, income as specially defined,
earnings, profits or selected items of income, earnings or profits) and all
gross receipts, sales, use, ad valorem, transfer, franchise, license,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property or windfall profits taxes, alternative or add-on minimum taxes, customs
duties and other taxes, fees, assessments or charges of any kind whatsoever,
together with all interest and penalties, additions to tax and other additional
amounts, in each case imposed by any taxing authority (domestic or foreign) on
any person (if any) and (ii) any liability for the payment of any amount of the
type described in clause (i) above as a result of (A) being a "transferee"
(within the meaning of Section 6901 of the Code or any other applicable law) of
another person, (B) being a member of an affiliated, combined or consolidated
group or (C) a contractual arrangement or otherwise.
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4.20 OTHER GOVERNMENTAL PROCEEDINGS
To the Company's knowledge, there are no rulemaking or similar proceedings
before any Federal, state, local or foreign government bodies that involve or
affect the Company, which, if subject to an action unfavorable to the Company,
could involve a prospective material adverse change in or effect on the
condition, financial or otherwise, or in the earnings, assets, liabilities,
business or prospects of the Company.
4.21 INSURANCE
The Company maintains insurance of the type and in the amount that the Company
reasonably believes is adequate for its business, including insurance covering
all real and personal property owned or leased by the Company against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against by similarly situated companies, all of which insurance is in full force
and effect.
4.22 (INTENTIONALLY LEFT BLANK.)
4.23 CONTRACTS
All material contracts to which the Company or any of its subsidiaries is a
party and which are described or incorporated by reference in any Exchange Act
Filing filed by the Company with the SEC subsequent to December 31, 2002, are in
full force and effect on the date hereof, except for any such contracts the
termination or expiration of which could not, individually or in the aggregate,
reasonably be expected to result in a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, liabilities, business or
prospects of the Company. Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any other party is in material breach of or
default under any contract which is material to the business of the Company or
any of its subsidiaries.
4.24 NO INTEGRATED OFFERING
Neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf, has directly or indirectly made any offers or sales in any
security or solicited any offers to buy any security under circumstances that
would require registration under the Securities Act of the issuance and sale of
the Purchased Shares to the Purchaser. The Company will not make any offers or
sales of any security that would cause the offering of the Purchased Shares to
be integrated with any other offering of securities by the Company for purposes
of any registration requirement under the Securities Act or any applicable rules
of any national securities exchange on which any securities of the Company are
on the date hereof or hereafter become traded.
4.25 BROKERS AND FINDERS
No action has been taken by the Company or any other person on the
Company's behalf that would give rise to any valid claim against the Company or
the Purchaser for a brokerage commission, finder's fee or other like payment
with respect to the transactions contemplated by any of the Transaction
Documents.
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4.26 DISCLOSURE
No representation or warranty made by the Company in this Agreement or in any
other writing furnished pursuant hereto contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
and facts contained herein or therein, in light of the circumstances in which
they were or are made, not misleading
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company as follows:
5.1 AUTHORIZATION
The Purchaser has the requisite power and authority to execute and deliver the
Transaction Documents to which it is a party and to perform its obligations
under such Transaction Documents. The execution and delivery by the Purchaser of
the Transaction Documents to which it is a party and the performance by the
Purchaser of its obligations under such Transaction Documents have been duly
authorized by all necessary action on its part, and no other proceedings on its
part are necessary to authorize its execution and delivery of such Transaction
Documents or its performance of its obligations under such Transaction
Documents.
5.2 DUE EXECUTION AND DELIVERY; BINDING OBLIGATIONS
Each Transaction Document to which the Purchaser is a party has been duly
executed and delivered by the Purchaser, and each such Transaction Document
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or conveyance or similar laws relating to or
limiting creditors' rights generally or by equitable principles relating to
enforceability and except as rights of indemnity or contribution may be limited
by federal or state securities or other laws or the public policy underlying
such laws.
5.3 CONSENTS AND APPROVALS
The execution and delivery by the Purchaser of each Transaction Document to
which it is a party, and the performance by the Purchaser of its obligations
under each such Transaction Document, do not and will not require any consent,
approval, license, permit, order or authorization of, or any registration,
declaration or filing with, any Person (including any governmental agency,
entity or authority), except for such as have been obtained or made and are in
full force and effect.
5.4 INVESTMENT REPRESENTATIONS
Solely for establishing that the offer, sale and issuance of the Purchased
Shares being purchased by the Purchaser pursuant to this Agreement are exempt
from the registration requirements of the Securities Act and the comparable
provisions of state securities laws and not in any way to mitigate the
responsibility or liability of the Company for any breach of the representations
and warranties made by the Company in this Agreement, on which the Purchaser is
relying in full in connection with its, his or her decision to invest in the
Company:
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(A) The Purchaser is acquiring the Purchased Shares to be purchased by it
under this Agreement, for its own account, for investment and not with a view to
the distribution thereof in violation of the Securities Act or applicable state
securities laws.
(B) The Purchaser understands that the Purchased Shares have not been
registered under the Securities Act or applicable state securities laws by
reason of their issuance by the Company in transactions exempt from the
registration requirements of the Securities Act and applicable state securities
laws, and that the Company's reliance upon such exemptions is based in part on
the representations of the Purchaser contained in this Agreement; and that each
such security must be held indefinitely unless a subsequent disposition thereof
is registered under the Securities Act and applicable state securities laws or
is exempt from registration.
(C) The Purchaser further understands that the exemption from registration
under the Securities Act afforded by Rule 144 (the provisions of which are known
to the Purchaser) depends on the satisfaction of various conditions and that, if
applicable, Rule 144 affords the basis for sales of only limited amounts and
under limited circumstances.
(D) The Purchaser has had the opportunity to ask questions of the Company's
officers and directors about the business and financial condition of the Company
and its subsidiaries, understands that its purchase of the Purchased Shares
being purchased by it pursuant to this Agreement are speculative investments
which involve a high degree of risk of loss of the entire investment therein;
and has such knowledge and experience in financial and business matters that it
is capable of evaluating the risks and merits of its investment in such
Purchased Shares.
(E) The Purchaser is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
(F) The Purchaser has not employed any broker or finder in connection with
the transactions contemplated by the Transaction Documents.
(G) The principal office of the Purchaser is located at the address listed
on the signature page hereto, and substantially all of the decisions of the
Purchaser with respect to its investment pursuant to this Agreement were made at
such location.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Notwithstanding any investigation made at any time by or on behalf of any party
to this Agreement, all covenants, agreements, representations and warranties
made by the Company and the Purchaser in this Agreement and in any of the other
Transaction Documents shall survive the execution and delivery of this Agreement
and the issuance and delivery to the Purchaser of the Purchased Shares.
7. INDEMNIFICATION
7.1 INDEMNIFICATION OF PURCHASER INDEMNITEES
The Company shall indemnify, defend and hold the Purchaser and its respective
officers, directors, partners, managing directors, affiliates, employees,
agents, consultants, representatives,
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successors and assigns (each a "Purchaser Indemnitee") harmless from and against
all Losses (as hereinafter defined) incurred or suffered by a Purchaser
Indemnitee arising out of, relating to or resulting from (i) any breach of any
of the representations or warranties made by the Company in this Agreement or in
any of the other Transaction Documents or (ii) any breach of any of the
covenants or agreements made by the Company in this Agreement or in any of the
other Transaction Documents. Such right of indemnification shall be in addition
to and not in lieu of any and all other rights and remedies available to the
Purchaser at law or in equity.
7.2 INDEMNIFICATION PRINCIPLES
For purposes of this Agreement, "Losses" shall mean and include each and
all of the following items: claims, actions, demands, losses (including losses
of earnings), liabilities, obligations, payments, damages (actual, punitive and
consequential), charges, judgments, fines, penalties, amount paid in settlement,
costs and expenses (including interest which may be imposed in connection
therewith, costs and expenses of investigation, actions, suits, proceedings,
demands, assessments, and fees, expenses and disbursements of counsel,
consultants and other experts).
8. TRANSFERS OF SECURITIES
8.1 RESTRICTIVE LEGENDS; EXCHANGES; LOST, STOLEN OR MUTILATED CERTIFICATES
Each certificate or other instrument evidencing Purchased Shares and each
certificate or other instrument for any such Purchased Shares issued to
subsequent transferees of any such Purchased Shares shall (unless otherwise
permitted by the provisions of Section 8.3) be stamped or otherwise imprinted
with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID
ACT OR APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
8.2 NOTICE OF TRANSFER
(A) If in the opinion of counsel for the Purchaser any proposed transfer of
Purchased Shares may be effected without registration under the Securities Act,
the holder of such Purchased Shares shall thereupon be entitled to transfer such
Purchased Shares in accordance with the terms of the notice delivered by it to
the Company.
(B) Each certificate or other instrument evidencing the securities issued
upon the transfer of any Purchased Shares (and each certificate or other
instrument evidencing any untransferred balance of such securities) shall bear
the legends set forth in Section 8.1 unless (i) in the opinion of such counsel,
registration of future transfer is not required by the applicable provisions of
the Securities Act or (ii) the Company shall have waived the requirement of such
legends; provided, however, that such legend shall not be required on any
certificate or other instrument evidencing the securities issued upon such
transfer in the event such transfer shall be made in compliance with the
requirements of Rule 144.
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(C) Upon surrender by the Purchaser to the Company of any certificate,
representing Purchased Shares, the Company at its expense will, within five
business days, issue in exchange therefor, and deliver to the Purchaser, a new
certificate or certificates representing such Purchased Shares, in such
denominations as may be requested by such Purchaser. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of any
certificate representing any Purchased Shares purchased or acquired by the
Purchaser hereunder, and in case of any such loss, theft or destruction, upon
delivery of any indemnity agreement satisfactory to the Company, or in any case
of any such mutilation, upon surrender and cancellation of such certificate, the
Company at its expense will, within five business days, issue and deliver to the
Purchaser a new certificate or other instrument for such Purchased Shares of
like tenor, in lieu of such lost, stolen, destroyed or mutilated certificate.
8.3 TRANSFER PURSUANT TO RULE 144
The Company covenants that (a) the Company will comply at all times with the
public information requirements of Rule 144(c)(1); and (b) at all times as Rule
144 is available for use by any Purchaser, the Company will furnish such
Purchaser, upon its request, with all information within the possession of the
Company reasonably required for the preparation and filing of Form 144.
9. MISCELLANEOUS COVENANTS
9.1 CERTAIN TAXES
The Company shall pay, and will hold each Purchaser harmless from, (a) any and
all liability with respect to any transfer, transfer gains, stamp or similar
Taxes which may be determined to be payable in connection with (i) the execution
and delivery and performance of this Agreement or any modification, amendment or
alteration of the terms or provisions of this Agreement, and (b) all Taxes
arising as a result of the issuance of the Purchased Shares to the Purchaser
(collectively, "Transaction-Related Taxes").
9.2 PRESS RELEASE; LISTING OF COMMON SHARES
Within four business days of the Closing Date, the Company shall issue a
press release disclosing the transactions contemplated hereby and shall timely
file a Current Report on Form 8-K under the 1934 Act disclosing the transactions
contemplated hereby. In addition, the Company will make such other filings and
notices in the manner and time required by the SEC and each automated quotation
system upon which shares of Common Stock are currently quoted.
9.3 (INTENTIONALLY LEFT BLANK.)
10. EXPENSES
The Company shall pay (a) all costs and other expenses incurred from time to
time by the Company in connection with the Company's performance of and
compliance with all agreements and conditions contained herein on its part to be
performed or complied with (including the costs and expenses of its counsel
incurred in connection with the drafting, review and negotiation of the
Transaction Documents), (b) all out-of-pocket costs and expenses reasonably
incurred by the Purchaser and their respective affiliates (including the
reasonable fees and expenses of Calfee,
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Halter & Griswold LLP) in connection with the preparation, negotiation,
execution and delivery of this Agreement and the other Transaction Documents and
the purchase of the Purchased Shares hereunder (provided, the payment
obligations of the Company with respect to this clause (b) shall not exceed an
aggregate amount agreed upon by the Company and the Purchaser); (c) all
out-of-pocket costs and expenses actually incurred by the Purchaser (including
the fees, charges and disbursements of counsel for the Purchaser) in connection
with (A) the preparation, negotiation, execution and delivery of any amendments,
modifications or waivers of the provisions of this Agreement or any other
Transaction Document and (B) the enforcement or protection of the Purchaser'
rights under the provisions of this Agreement or any other Transaction Document;
and (d) any Transaction-Related Taxes. All amounts payable under this Section 10
shall be payable by the Company promptly after written demand therefor.
11. NOTICES
Any notices, demands, consents or other communications that are given or made
hereunder shall be in writing and shall be given or made to any party hereto by
physical delivery, U.S. mail (registered or certified mail, postage prepaid,
return receipt requested) or overnight courier or by transmission by facsimile
to such party at its, his or her address (or facsimile number) set forth below,
or such other address (or facsimile number) as shall have been specified by like
notice by such party:
(A) if to the Company, to:
Trans-Industries, Inc.
1780 Opdyke Court
Auburn Hills, MI 48326
Attention: Richard A. Solon, Chief Executive
Officer
Facsimile: (248) 364-0404
with a copy to:
Dawda, Mann, Mulcahy & Sadler, PLC
39533 Woodward Avenue, Suite 200
Bloomfield Hills, Michigan 48304
Attention: Robert P. Anderson, Esq.
Facsimile: (248) 642-7791
or to such other person at such other place as the Company shall designate to
each Purchaser in writing; and
(B) if to the Purchaser, to the Purchaser's address (or facsimile number)
as set forth on the signature page, or to such other address for the Purchaser
as the Purchaser may specify in written notice given to the Company in
accordance with this section.
Each such notice, demand, consent or other communication shall be effective upon
receipt in the case of physical delivery or overnight courier, upon confirmation
of receipt by or on behalf of the addressee in the case of transmission by
facsimile if received prior to 5:00 p.m. local time at the destination of such
facsimile transmission, and, if received after 5:00 p.m. local time at the
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destination of such facsimile transmission, on the next business day immediately
after the date of such receipt, and five business days after deposit in the U.S.
mail in the case of mailing.
12. MISCELLANEOUS PROVISIONS
12.1 ENTIRE AGREEMENT
This Agreement and the other Transaction Documents constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede any prior or contemporaneous understandings, negotiations,
agreements or representations by or among such parties, written or oral, that
may have related in any way to the subject matter hereof or thereof, including
any letter of intent or term sheet dated as of or prior to the date hereof,
between the Company and one or more of the Purchaser (or their affiliates).
12.2 FURTHER ASSURANCES
The Company will, and will cause its subsidiaries to, execute any and all
further documents, agreements and instruments, and take all such further actions
that may be required under any applicable law, or which the Purchaser may
reasonably request, to effectuate the transactions contemplated by the
Transaction Documents, all at the expense of the Company.
12.3 FURTHER ASSURANCES
(A) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and permitted assigns
of such party, and all covenants and agreements by or on behalf of the Company
or the Purchaser which are contained in this Agreement or in any of the other
Transaction Documents shall bind and inure to the benefit of their respective
heirs, successors, and permitted assigns, except that the Company shall not
assign its rights or obligations hereunder without the consent of the Purchaser.
(B) The Purchaser shall have the right, without the consent of the Company
but subject to compliance with applicable securities laws and the applicable
provisions of this Agreement and the other Transaction Documents, to assign, all
or part of, the securities acquired by it hereunder and assign, all or part of,
its rights and obligations under this Agreement or any of the other Transaction
Documents.
12.4 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. Counterparts
transmitted by facsimile may be treated as an original instrument and relied
upon for all purposes as such.
12.5 GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION
(A) All questions concerning the construction, interpretation and validity
of this Agreement shall be governed by and construed and enforced in accordance
with the internal law of the State of Ohio, without giving effect to any choice
or conflict of law provision or rule (whether in the State of Ohio or any other
jurisdiction) that would cause the application of the law of any jurisdiction
other than the State of Ohio. In furtherance of the foregoing, the internal law
of the
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State of Ohio will control the interpretation and construction of this
Agreement, even if under such jurisdiction's choice of law or conflict of law
analysis, the internal law of some other jurisdiction would ordinarily or
necessarily apply.
(B) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS
RELATED HERETO.
(C) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of any
court of the State of Ohio or federal court of the United States of America
sitting in the State of Ohio, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such court of the
State of Ohio or, to the extent permitted by law, in such federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(D) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court of the
State of Ohio or federal court sitting in the State of Ohio. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
12.6 WAIVERS AND AMENDMENTS
(A) No failure or delay of the Purchaser in exercising any power or right
in this Agreement or in any other Transaction Document shall operate as a waiver
hereof or thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such right or
power, preclude any other or further exercise of any other right or power. No
waiver of any provision of this Agreement or any other Transaction Document or
consent to any departure by the Company therefrom shall in any event be
effective unless the same shall be authorized as provided for in Section
12.6(b), and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the Company
in any case shall entitle the Company to any other or further notice or demand
in similar or other circumstances.
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(B) Except as provided in Section 12.3, neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to a written
instrument which specifically references this Agreement which has been signed by
the party against whom such waiver, amendment or modification is sought to be
enforced or such party's authorized officer or representative.
12.7 INCORPORATION OF SCHEDULES AND EXHIBITS
The annexes, schedules and exhibits identified in this Agreement are
incorporated herein by reference and made a part hereof as though fully
rewritten herein.
12.8 INTERPRETATION AND CONSTRUCTION
The term "this Agreement" means this Common Stock Purchase Agreement, together
with all annexes, schedules and exhibits hereto, as the same may from time to
time be amended, modified, supplemented or restated in accordance with the terms
hereof. Accounting terms used but not otherwise defined herein shall have the
meanings given to them under GAAP. The use in this Agreement of the term
"including" means "including, without limitation." The words "herein," "hereof,"
"hereunder" and other words of similar import refer to this Agreement as a
whole, including its annexes, schedules and exhibits, as the same may from time
to time be amended, modified, supplemented or restated, and not to any
particular section, subsection, paragraph, subparagraph or clause contained in
this Agreement. All references to sections, annexes, schedules and exhibits mean
the sections of this Agreement and the annexes, schedules and exhibits attached
to this Agreement, except where otherwise stated. The title of and the section
and paragraph headings in this Agreement are for convenience of reference only
and shall not govern or affect the interpretation of any of the terms or
provisions of this Agreement. The use herein of the masculine, feminine or
neuter forms shall also denote the other forms, as in each case the context may
require or permit. Where specific language is used to clarify by example a
general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement has been
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party. All references to payment
amounts herein are United States dollar amounts, and all payments hereunder
shall be made in United States dollars. Unless expressly provided otherwise, the
measure of a period of one month or year for purposes of this Agreement shall be
that date of the following month or year corresponding to the starting date,
provided that if no corresponding date exists, the measure shall be that date of
the following month or year corresponding to the next day following the starting
date. For example, one month following February 18 is March 18, and one month
following March 31 is May 1.
12.9 NO FIDUCIARY RELATIONSHIP
No provision in this Agreement or in any other Transaction Document and no
course of dealing among the parties hereto shall be deemed to create any
fiduciary duty by the Purchaser or any of their respective affiliates to the
Company or its directors, officers, employees, stockholders or affiliates.
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12.10 SEVERABILITY
It is the desire and intent of the parties that the provisions of this Agreement
be enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Agreement shall be adjudicated by a court of
competent jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
* * *
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IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase
Agreement as of the date first written above.
THE COMPANY:
TRANS-INDUSTRIES, INC.
By: /s/ Richard A. Solon
------------------------------------
Name: Richard A. Solon
Title: President
IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase
Agreement as of the date first written above.
THE PURCHASER:
CLARK-RELIANCE CORPORATION
By: /s/ Dennis Pesek
------------------------------------
Name: Dennis Pesek
Title: President
EXHIBIT I
TO COMMON STOCK PURCHASE AGREEMENT
DATED AS OF JANUARY 3, 2006
SCHEDULE OF EXCEPTIONS
1. All environmental matters set forth by the State of Michigan, Department of
Environmental Quality in its January 20, 2004 correspondence by and between
Bonnie J. Pawloske, Environmental Quality Analyst, and Ms. Susan Hornung,
Vice-President, Transign.
2. Representatives of the Company have discussed with representatives of the
Purchaser certain matters regarding the Company's Profit Sharing Plan that
relate to the purchase of the Series A Preferred Stock by the Profit Sharing
Plan (the "Plan") from the Company and the diversification of the investments
held by the Plan. The Company does not believe that any potential claims that
may arise regarding the Plan are material or reasonably likely at this time.
3. As disclosed in the Company's most recent Forms 10-Q and 10-K, the Company
was and is in violation of certain provisions of the Company's credit agreement
with Huntington National Bank.
4. In July 2005, the Company's subsidiary, Vultron, Inc., entered into a lease,
with a right of first refusal, for its Bad Axe, Michigan facility.
5. The Company's subsidiary, Vultron, Inc., is the subject of an age
discrimination lawsuit, Flanigan v. Vultron, Inc..
6. The Company's subsidiary, Transmatic, Inc., is the subject of a breach of
contract claim based on a typographical error in a severance agreement. The
plaintiff seeks to extend his severance package by one year based on the
typographical error.