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INVESTMENT AND STOCKHOLDERS AGREEMENT
BY AND BETWEEN
CENTENNIAL TECHNOLOGIES, INC.
AND
VIA, INC.
NOVEMBER 27, 1996
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TABLE OF CONTENTS
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Page
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1. Terms of Purchase ............................................ 1
1.1 Purchase of Shares ................................... 1
1.2 Purchase Price ....................................... 1
1.3 Closing .............................................. 2
2. Representations and Warranties of ViA ........................ 2
2.1 Capitalization of ViA ................................ 2
2.2 Organization of ViA .................................. 3
2.3 Merger Agreement ..................................... 3
2.4 Authorization ........................................ 3
2.5 Subsidiaries of ViA .................................. 4
2.6 Audited Financial Statements ......................... 4
2.7 Tax Matters .......................................... 5
2.8 Title to Properties .................................. 5
2.9 Agreements, Contracts, Licenses and Commitments ...... 6
2.10 Required Consents, No Default ........................ 6
2.11 Litigation ........................................... 6
2.12 Intangible Property .................................. 6
2.13 Governmental Consents ................................ 7
2.14 Compliance with Agreements and Laws .................. 7
2.15 Employee Relations ................................... 7
2.16 Indebtedness to and from Officers, Directors and
Stockholders ........................................ 7
2.17 Insurance of Properties .............................. 7
2.18 Guarantees, Warranties and Discounts ................. 8
2.19 Restricted Securities ................................ 8
2.20 Legends .............................................. 8
3. Affirmative Covenants ........................................ 9
3.1 Maintenance of Records ............................... 9
3.2 Maintenance of Properties ............................ 9
3.3 Conduct of Business .................................. 9
3.4 Maintenance of Insurance ............................. 9
3.5 Compliance With Laws ................................. 9
3.6 Right of Inspection .................................. 10
3.7 Reporting Requirements ............................... 10
3.8 Payment of Taxes and Claims .......................... 11
3.9 Maintenance of Existence ............................. 11
3.10 Payment of Other Obligations ......................... 11
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4. Representations and Warranties of Centennial ................. 12
4.1 Organization and Related Matters ..................... 12
4.2 Authorization of Agreement ........................... 12
4.3 Capitalization of Centennial ......................... 12
4.4 Financial Representations ............................ 12
4.5 Cooperation .......................................... 12
4.6 Investment Intent .................................... 13
4.7 No Brokers or Finders ................................ 13
5. Opinions of Counsel .......................................... 13
6. Indemnification .............................................. 14
6.1 Indemnification by ViA ............................... 14
6.2 Indemnification by Centennial ........................ 14
6.3 Conditions of Indemnification ........................ 14
6.4 Conditions to Indemnification ........................ 14
6.5 Payment for Indemnification .......................... 15
6.6 Survival of Indemnification .......................... 15
6.7 Intent of Parties .................................... 15
7. Registration Rights .......................................... 15
7.1 Registration of Shares ............................... 15
7.2 Compliance with Securities Rules and Regulations ..... 16
7.3 Obligations of ViA ................................... 16
7.4 Indemnification ...................................... 17
8. Future Sales of Shares of Capital Stock of ViA ............... 18
8.1 Participation Right of Centennial .................... 18
9. General ...................................................... 18
9.1 Survival of Representations, Warranties and
Covenants ........................................... 18
9.2 Press Releases ....................................... 18
9.3 Payment of Expenses .................................. 18
9.4 Governing Law ........................................ 18
9.5 Notices .............................................. 19
9.6 Successors and Assigns ............................... 19
9.7 Headings ............................................. 20
9.8 Counterparts ......................................... 20
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9.9 Waiver ............................................... 20
9.10 Entire Agreement ..................................... 20
9.11 Additional Actions ................................... 20
9.12 Remedies ............................................. 20
TABLE OF SCHEDULES AND EXHIBITS
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No. Title
- --- -----
1.3 Shareholder Voting Agreement
2.1 The ViA Shareholders
2.6 Adverse Changes and Undisclosed Liabilities
2.7 Powers of Attorney
2.9 Agreements, Contracts, Licenses and Commitments
2.11 Litigation
2.12 Intangible Property
2.16 Indebtedness to and from Officers, Directors and Stockholders
2.18 Registration Rights Agreement
5(a) Opinion of Counsel to ViA, Inc.
5(b) Opinion of Counsel to Centennial Technologies, Inc.
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INVESTMENT AND STOCKHOLDERS AGREEMENT
This Investment and Stockholders Agreement (the "Agreement") made as of
the 27th day of November, 1996, by and between Centennial Technologies, Inc., a
Delaware corporation having its principal place of business at 37 Manning Road,
Billerica, Massachusetts 01821 ("Centennial") and ViA, Inc., a Minnesota
corporation having its principal place of business at 11 Bridge Square,
Northfield, MN 55057 ("ViA").
RECITALS
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WHEREAS, ViA has authorized 25,000,000 shares of common stock (the
"Common Stock") and 1,000,000 shares of preferred stock, of which 10,840 shares
of common stock are currently issued and outstanding, and of which ViA is
obligated to issue an additional 70,481 shares of common stock as of November
26, 1996, which is the effective date of the Merger Agreement referred to in
section 2.3 below, and of which no shares of preferred stock are outstanding;
and
WHEREAS, Centennial wishes to acquire from ViA and ViA wishes to
transfer to Centennial 11,089 shares of authorized but unissued ViA Common
Stock, after which Centennial will own twelve percent (12%) of the then
outstanding ViA 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) ViA
shall sell, assign and transfer to Centennial eleven thousand eighty-nine
(11,089) shares of ViA Common Stock (the "ViA Shares") which shall constitute
twelve percent (12%) of the then outstanding capital stock of ViA. At the
Closing, ViA shall deliver a certificate or certificates representing the ViA
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 provide ViA
an aggregate payment of a combination of cash and shares of Centennial's common
stock ("Centennial Shares") with a combined value of no less than five million
dollars ($5,000,000), such combination to be determined at the sole discretion
of Centennial. For such purposes, Centennial Shares shall be deemed to have a
value equal to that necessary for ViA to
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receive on the Closing Date (as defined below) $5,000,000 from Lehman Brothers
Finance, S.A. ("Lehman") pursuant to a fully hedged financing transaction of a
term of at least four (4) months utilizing the Centennial Shares or the value
thereof (the "Financing"), which $5,000,000 shall be net of all net interest,
costs, liabilities and expenses incurred by ViA relating to or in connection
with the Financing or the failure thereof.
1.3 CLOSING. The closing (the "Closing") of the purchase of the
ViA Shares under this Agreement shall take place at the offices of Centennial in
Billerica, Massachusetts and at the offices of ViA in Northfield, Minnesota, on
or before the 6th day of December, 1996. 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, except as set forth below. All that the parties
hereto contemplate needs to be completed and executed at the time of the Closing
to effect fully this Agreement are the following:
(a) ViA shall deliver to Centennial certificates representing
the ViA Shares, and, in exchange therefor, Centennial shall deliver to ViA a
certificate or certificates representing the Centennial Shares.
(b) The parties shall deliver to each other the appropriate
Opinion of Counsel described in Section 5 of this Agreement.
(c) ViA shall deliver an executed Shareholder Voting Agreement
substantially in the form attached hereto as EXHIBIT 1.3.
In addition, the obligations of each party hereunder to close this
transaction shall be subject to the fulfillment of the condition that on or
before December 6, 1996, the Financing shall have been consummated to ViA's
reasonable satisfaction. The failure to fulfill this condition to ViA's
reasonable satisfaction on or before December 6, 1996 shall render this
Agreement null and void.
2. REPRESENTATIONS AND WARRANTIES OF ViA.
ViA represents and warrants 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 ViA by Centennial, as follows:
2.1 CAPITALIZATION OF ViA. ViA's authorized capital stock consists
of 25,000,000 shares of common stock, and 1,000,000 shares of preferred stock,
of which 10,840 shares of common stock are currently issued and of which ViA is
obligated to issue an
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additional 70,481 shares of common stock as of November 26, 1996, the effective
date of the Merger Agreement, which are held of record and beneficially as shown
on the attached SCHEDULE 2.1 (the "ViA Shareholders"). All such issued and
outstanding ViA Shares have been and on the Closing Date will be duly and
validly issued and are, or will be on the Closing Date, fully paid and
nonassessable. Except as disclosed on the attached SCHEDULE 2.1, there are not,
and on the Closing Date there will not be, outstanding (i) any options, warrants
or other rights to purchase from ViA any ViA Common Stock; (ii) any securities
convertible into or exchangeable for shares of any ViA Common Stock; or (iii)
any other agreements, arrangements, understandings or commitments of any kind
for the issuance of additional shares of ViA Common Stock, or options, warrants
or other securities of ViA.
2.2 ORGANIZATION OF ViA. ViA is a corporation, duly organized,
validly existing and in good standing under the laws of Minnesota, and has all
requisite power and authority (corporate and other) to own its properties and to
carry on its business as now being conducted. ViA 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 ViA.
Certified copies of the Certificate of Incorporation, as amended and by-laws of
ViA, 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.
2.3 MERGER AGREEMENT. Pursuant to a Contribution and Exchange
Agreement by and among Key Information Delivery, Inc. and the members and
shareholders of Key Idea Development, LLC and Key Information Delivery, Inc.
(the "Merger Agreement"), all of the members of Key Idea Development, LLC, a
Minnesota limited liability corporation ("Key Idea"), contributed all of their
members' capital to Key Information Delivery, Inc., a Minnesota corporation
("Key Information"), in exchange for shares of Common Stock in Key Information.
The name of Key Information was changed to ViA on November 26, 1996. The Merger
Agreement, and all other agreements related thereto, were duly and validly
authorized, executed and delivered by each of the parties thereto, and
constitute valid and legally binding obligations, enforceable by and against the
parties in accordance with their respective terms. All documents required to be
filed in order to effect the terms of the Merger Agreement either have been
filed or will be filed within thirty (30) days of the Closing Date with the
appropriate governmental agencies. ViA, Key Information and Key Idea are
sometimes collectively referred to herein as the "ViA Corporations."
2.4 AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by ViA. This Agreement and all other agreements and
obligations entered into and undertaken in connection with the transactions
contemplated hereby to which ViA is a party constitute the valid and legally
binding obligations of ViA, enforceable against it in accordance with their
respective terms except insofar as enforceability may be
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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 ViA, and
the consummation by ViA 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 ViA; (b)
violate the provisions of the Certificate of Incorporation, charter documents or
by-laws of ViA; (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 ViA pursuant to, any indenture, mortgage, deed of trust or other
instrument or agreement to which ViA is a party or by which ViA or any of its
predecessors is or may be bound.
2.5 SUBSIDIARIES OF ViA. Except for Key Idea, ViA has no
subsidiaries, and ViA 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 ViA has, directly or indirectly, an equity interest representing
50% or more of the capital stock thereof or other equity interests therein.
2.6 AUDITED FINANCIAL STATEMENTS.
(a) FINANCIAL STATEMENTS. ViA has delivered to Centennial true
and complete copies of audited combined financial statements of Key Information
and Key Idea as of June 30, 1996 and 1995 (the "1996 Financial Statements") and
before December 6, 1996 will deliver to Centennial unaudited interim financial
statements of Key Information and Key Idea for the period July 1, 1996 to
September 30, 1996 (the "Interim Financial Statements"). The 1996 Financial
Statements and Interim Financial Statements are collectively referred to as the
"Financial Statements." All such Financial Statements are in accordance with the
books and records of the ViA Corporations and (i) present fairly and correctly
the combined financial position of Key Information and Key Idea 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"), applied on a basis consistent
with prior periods and practices. From September 30, 1996 through the Closing
Date, the ViA Corporations have not and shall not change their accounting
practices and procedures.
(b) NO ADVERSE CHANGES OR UNDISCLOSED LIABILITIES. Except as
set forth on SCHEDULE 2.6, since September 30, 1996, and except for the
transactions contemplated by the Merger Agreement, 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 ViA Corporations, or (ii) any event, condition or set of
facts of any character known to the ViA Corporations which
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might materially and adversely affect the results of operations, assets,
financial condition, prospects or business of any of the ViA Corporations.
Except as set forth on Schedule 2.6, the ViA Corporations 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 September 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 ViA Corporations, and (ii)
liabilities and obligations permitted or contemplated by this Agreement.
2.7 TAX MATTERS.
(a) The ViA Corporations 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 ViA Corporations 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 ViA Corporations 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 ViA Corporations 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 ViA, are threatened with respect to any Taxes
for which any of the ViA Corporations 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 ViA Corporations 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 ViA Corporations or
their predecessors, and no power of attorney granted by the ViA Corporations or
their predecessors with respect to any matters relating to Taxes is currently in
force, except as provided in SCHEDULE 2.7.
2.8 TITLE TO PROPERTIES. ViA has good and marketable title to all
of the properties and assets reflected in the Financial Statements or acquired
since September 30, 1996, except properties and assets disposed of in the
ordinary course of business since September 30, 1996.
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2.9 AGREEMENTS, CONTRACTS, LICENSES AND COMMITMENTS. Except as set
forth on SCHEDULE 2.9, ViA is not, and none of the ViA Corporations at the time
of the execution of the Merger Agreement were, a party to or liable in
connection with any oral or written agreement or arrangement for the sale of any
of the assets of the ViA Corporations, for the licensing of rights regarding any
of the assets or property of the ViA Corporations, for the grant of any
preferential rights to purchase any of the assets, property or rights of the ViA
Corporations, or requiring the consent of any party for the transfer and
assignment of such assets, property or rights of the ViA Corporations.
2.10 REQUIRED CONSENTS, NO DEFAULT. Neither the execution and
delivery of this Agreement nor compliance by ViA 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. ViA is not, and
none of the ViA Corporations at the time of the execution of the Merger
Agreement were in default under or in violation of any provision of their
Certificates of Incorporation, charter documents or by-laws. ViA is not in
default under or in violation of any provision of any indenture, mortgage,
lease, loan or other agreement to which it or any of its predecessors 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 ViA.
2.11 LITIGATION. Except as provided in SCHEDULE 2.11, (a) there is
no action, suit or proceeding to which any of the ViA Corporations is a party
(either as a plaintiff or defendant) pending or, to the best knowledge of ViA,
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 ViA taken as a whole, and, to the best
knowledge of ViA, there is no basis for any such action, suit or proceeding; (b)
neither the ViA Corporations nor, to the best knowledge of the parties hereto,
any officer, director or employee of the ViA Corporations, 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 ViA Corporations; 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 ViA Corporations to take any action of any kind with respect to
their business, assets or properties.
2.12 INTANGIBLE PROPERTY. ViA (a) owns or has the adequate right to
use all patents, trademarks, service marks, trade names, copyrights, licenses
and rights with respect to the foregoing used in the conduct of its business as
now conducted without, to its knowledge, infringing upon or otherwise acting
adversely to the right or claimed right of any person under or with respect to
any of the foregoing, (b) except as set forth in SCHEDULE 2.12, is not obligated
or under any liability to make any payments of a material nature by way of
royalties, fees or otherwise to any owner of, licensor of, or
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other claimant to, any patent, trademark, trade name, copyright or other
intangible asset, with respect to the use thereof or in connection with the
conduct of its business or otherwise, (c) owns or has adequate right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, and (d) to its knowledge, is not using any confidential information or trade
secrets of others.
2.13 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 ViA Corporations in connection with the execution and delivery of
this Agreement or the sale and delivery of the ViA 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.
2.14 COMPLIANCE WITH AGREEMENTS AND LAWS. ViA has all requisite
licenses, permits and certificates, including environmental, health and safety
permits, from federal, provincial and local authorities necessary to conduct the
businesses of the ViA Corporations as currently conducted (collectively, the
"Permits"). The businesses of the ViA Corporations 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 ViA.
2.15 EMPLOYEE RELATIONS. There are no pending labor strike or
other material labor trouble affecting ViA.
2.16 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND STOCKHOLDERS.
Except as provided in SCHEDULE 2.16, ViA is not, and on the Closing Date will
not be, indebted, directly or indirectly, to any person who is an officer,
director or stockholder of ViA, 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 ViA. In
addition, ViA is 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 ViA 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.
2.17 INSURANCE OF PROPERTIES. All of the properties and operations
of ViA 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 ViA
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carries, 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.
2.18 GUARANTEES, WARRANTIES AND DISCOUNTS. Except as disclosed in
the Financial Statements:
(a) Except as set forth on SCHEDULE 2.18, none of the ViA
Corporations 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 ViA
Corporations; and
(b) The ViA Corporations 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 ViA Corporations and except for
warranties implied by law.
2.19 RESTRICTED SECURITIES. ViA understands that the shares of
Centennial's common stock it is receiving under this Agreement are characterized
as "restricted securities" under the federal securities laws inasmuch as they
are being acquired from Centennial in a transaction not involving a public
offering and that under such laws and applicable regulations such securities may
be resold without registration under the Securities Act of 1933, as amended (the
"Act") only in certain limited circumstances. In this regard, ViA represents
that it is familiar with Rule 144 promulgated under the Act, as such Rule is
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
2.20 LEGENDS. It is understood that the certificates evidencing
Centennial's common stock to be transferred to ViA under this Agreement may bear
one or all of the following legends or their substantial equivalent:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
UNLESS (A) A REGISTRATION STATEMENT IS IN EFFECT WITH RESPECT TO SUCH
SECURITIES UNDER THE ACT OR THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED, OR (B) THE SECURITIES
ARE SOLD PURSUANT TO RULE 144 PROMULGATED UNDER THE ACT."
(b) Any legend required by state securities laws.
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The legend referred to in clause (a) above shall be removed by
Centennial from any certificate at such time as the holder of the shares
represented by the certificate delivers an opinion of counsel reasonably
satisfactory to Centennial to the effect that such legend is not required in
order to establish compliance with any provisions of the Act (or its equivalent
in effect at such time), and provided further that Centennial has received from
the holder a written representation that (i) such holder is not an affiliate of
Centennial and has not been an affiliate during the preceding three months, (ii)
such holder has beneficially owned the shares represented by the certificate for
a period of at least three (3) years (or such shorter period as may be required
by Rule 144(k) as in effect at such time), and (iii) such holder otherwise
satisfies the requirements of Rule 144(k) (or its equivalent in effect at such
time) with respect to such shares.
3. AFFIRMATIVE COVENANTS.
So long as Centennial or any of its successors or assigns owns of record
or beneficially holds any ViA Common Stock, ViA shall, and any other
subsidiaries acquired by any of it 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.
3.2 MAINTENANCE OF PROPERTIES. Maintain, keep, and preserve all of
its properties (tangible and intangible) necessary or useful in the proper
conduct of its 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
businesses.
3.3 CONDUCT OF BUSINESS. Continue to engage in the same general
type of businesses as conducted by it 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.
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 it or upon its property,
noncompliance with which would have a material and adverse effect on its
business and operations.
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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 ViA and any after-acquired
subsidiaries and to discuss the affairs, finances, and accounts of ViA and any
after-acquired subsidiaries with any of its officers, directors and independent
accountants so long as said activities do not unreasonably disrupt their
businesses. Centennial shall maintain all information obtained by it during its
investigation of ViA and otherwise obtained in accordance with this Section 3.6
as confidential information and shall not use such information for its own
purposes (other than to evaluate such business or to enable it to carry out its
obligation under this agreement) to any extent whatsoever; provided, however,
the foregoing obligations of confidentiality and restrictions on use shall not
apply to information (a) known to Centennial prior to its disclosure by ViA, (b)
independently developed by Centennial, (c) acquired by Centennial from others,
provided that such other persons by disclosing such information have not
violated any confidentiality obligations owed to ViA, (d) known to the public,
or (e) required to be disclosed by governmental officials.
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
September 30, December 31 and March 31, unaudited consolidated balance sheets of
ViA 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 ViA or any after-acquired subsidiary, all prepared in
accordance with GAAP consistently applied, subject to year end adjustments, and
certified by an officer of ViA;
(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 consolidated annual financial reports for such fiscal year,
including a balance sheet of ViA and any after-acquired subsidiary as of the end
of such fiscal year and statements of income and retained earnings of ViA and
any after-acquired subsidiary for such fiscal year, and a statement of cash flow
of ViA 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;
(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 ViA or any after-acquired subsidiary, which, if
determined adversely to ViA
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or any after-acquired subsidiary, could have a material adverse effect on the
financial condition, properties, or operations of ViA 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 ViA 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 ViA 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 ViA 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) ViA and any after-acquired
subsidiary shall have set aside on their 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 of ViA or any
after-acquired subsidiary.
3.9 MAINTENANCE OF EXISTENCE. Preserve and maintain its corporate
existence and good corporate standing in the jurisdictions of its 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 businesses, operations or
financial statements of ViA or any after-acquired subsidiary.
3.10 PAYMENT OF OTHER OBLIGATIONS. Punctually and promptly make all
payments and perform all other obligations which may be required of ViA and any
after-acquired subsidiary 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 ViA or any after-acquired subsidiary or the property of ViA or any
after-acquired subsidiary, and all obligations under the terms of any lease in
which ViA or any after-acquired subsidiary is the lessee. The provisions of this
section shall not preclude ViA or any after-acquired subsidiary from contesting
in good faith and diligently defending against any such indebtedness or
obligation.
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4. REPRESENTATIONS AND WARRANTIES OF CENTENNIAL.
Centennial represents and warrants to ViA, upon which representations
and warranties ViA relies and which representations and warranties shall survive
Closing for a period of one (1) year as follows:
4.1 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.
4.2 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.
4.3 CAPITALIZATION OF CENTENNIAL. As of September 30, 1996,
Centennial's authorized capital stock consisted of 15,000,000 shares of
Centennial Common Stock, $.01 par value per share, of which 8,522,375 shares
were issued and outstanding; and 1,000,000 shares of Preferred Stock, $.01 par
value per share, none of which are outstanding. On November 12, 1996, Centennial
filed a Certificate of Amendment to its Certificate of Incorporation to increase
its number of authorized shares of Common Stock from 15,000,000 to 50,000,000
shares. 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.
4.4 FINANCIAL REPRESENTATIONS. Centennial has delivered or, before
Closing, will deliver to the ViA, true and complete copies of its Annual Report
on Form 10-K for the fiscal year ended June 30, 1996 (the "Report") which was
duly filed with the U. S. Securities and Exchange Commission. The Report and the
financial statements contained therein are in accordance with the books and
records of Centennial, and (i) present fairly the financial position of
Centennial as of the dates and for the 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.
4.5 COOPERATION. Centennial shall execute all documents, and
perform all such other acts, as are reasonably requested by ViA and Lehman to
maintain the Financing until the shares of Centennial common stock issued
pursuant to section 1.2 hereof, if any, may be sold in accordance with Rule 144.
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4.6 INVESTMENT INTENT. The shares of ViA common stock being
acquired by Centennial are being purchased for investment for Centennial's own
account and not with the view to, or for resale in connection with, any
distribution or public offering thereof. Centennial understands that such Shares
have not been registered under the Securities Act or any state securities laws
by reason of their contemplated issuance in transactions exempt from the
registration requirements of the Securities Act pursuant to section 4(2) thereof
and applicable state securities laws, and that the reliance of ViA and others
upon these exemptions is predicated in part upon this representation by
Centennial. Centennial further understands that the ViA Shares may not be
transferred or resold without (i) registration under the Securities Act and any
applicable state securities laws, or (ii) an exemption from the requirements of
the Securities Act and applicable state securities laws. The ViA Shares shall
incorporate a legend substantially in the form set forth in Section 2.20(a) of
this Agreement.
Centennial understands that an exemption from such registration is not
presently available pursuant to Rule 144 promulgated under the Securities Act by
the Securities and Exchange Commission (the "Commission") and that in any event
Centennial may not sell any securities pursuant to Rule 144 prior to the
expiration of a two-year period after such Investor has acquired such
securities. Centennial understands that any sales pursuant to Rule 144 can be
made only in full compliance with the provisions of Rule 144.
4.7 NO BROKERS OR FINDERS. No person, firm or corporation has or
will have as a result of any act or omission by Centennial, any right, interest
or valid claim against ViA for any commission, fee or other compensation as a
finder or broker, or in any similar capacity, in connection with the
transactions contemplated by this agreement. Centennial will indemnify and hold
ViA harmless against any and all liability with respect to any such commission,
fee or other compensation which may be payable or determined to be payable as a
result of the actions of such Investor in connection with the transactions
contemplated by this Agreement.
5. OPINIONS OF COUNSEL.
As soon as practicable after the Closing Date, ViA shall deliver to
Centennial an opinion from Dorsey & Whitney, LLP, counsel to ViA, dated as of
the Closing Date, in the form and substance satisfactory to Centennial, as to
the matters set forth in EXHIBIT 5(a). As soon as practicable after the Closing
Date, Centennial shall deliver to ViA an opinion from O'Connor, Brodie &
Aronson, counsel to Centennial, dated as of the Closing Date, in the form and
substance satisfactory to ViA, as to the matters set forth in EXHIBIT 5(b).
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6. INDEMNIFICATION.
6.1 INDEMNIFICATION BY ViA. Subject to the limitations set forth
in section 6.3, ViA agrees to indemnify Centennial with respect to, and hold
Centennial harmless from, and reimburse Centennial for, any out-of-pocket loss,
liabilities, costs or expense (including, but not limited to, reasonable legal
fees) which Centennial may directly or indirectly incur or suffer by reason of,
or which results, arises out of or is based upon (a) the inaccuracy of any
representation or warranty made by ViA in this Agreement, or (b) the failure of
ViA to comply with any of its covenants under this Agreement.
6.2 INDEMNIFICATION BY CENTENNIAL. Subject to the limitations set
forth in section 6.3, Centennial agrees to indemnify ViA with respect to, and
hold ViA harmless from, and reimburse ViA for any out-of-pocket losses,
liabilities, interest, costs or expenses (including, but not limited to,
reasonable legal fees) (the "Losses") which ViA may directly or indirectly incur
or suffer by reason of, or which results, arises out of or is based upon (a) the
inaccuracy of any representation or warranty made by Centennial in this
Agreement, (b) the failure of Centennial to comply with any of its covenants
under this Agreement, and (c) the Financing or the failure thereof, or ViA's
inability to arrange with Lehman (on terms at least as favorable as the
Financing) substitute or continued financing covering the period commencing on
the Closing Date and ending two (2) years thereafter. It is expressly agreed
that any losses incurred in connection with the Financing, including prepayment
penalties, fees, extra interest charges or the cost of refinancing the same in
the event of early foreclosure of the same shall give rise to the indemnity
contemplated by this section 6.2(c). In the event of any foreclosure by Lehman
with respect to the Centennial Shares, Centennial shall indemnify ViA by making
a payment to ViA in cash for any Losses. In the event ViA is unable to secure
comparable financing at the end of the term of the Financing, ViA shall return
the Centennial Shares and any other cash value derived therefrom on the
Financing thereof, and Centennial shall reimburse ViA in cash $5 million and any
other additional Losses incurred.
6.3 CONDITIONS OF INDEMNIFICATION. It is agreed and understood
between Centennial and ViA that the obligations under this Section 6 to
indemnify and hold harmless from any loss, cost, liability or expense described
in Sections 6.1 and 6.2 (a) and (b) shall only become operative after, and to
the extent that, the total amount of all claims for indemnification hereunder
exceeds Fifty Thousand Dollars ($50,000).
6.4 CONDITIONS TO INDEMNIFICATION. The obligations and liabilities
of the parties 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
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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 6.4(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 6.4(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.
6.5 PAYMENT FOR INDEMNIFICATION. The Indemnifying Party shall pay
to the Indemnified Party the amount of established claims for indemnification
within fifteen (15) days after the establishment thereof (the "Due Date") in
cash or by certified check.
6.6 SURVIVAL OF INDEMNIFICATION. The indemnification provided in
this Section 6 shall survive the Closing Date for those representations,
warranties and covenants of the parties contained herein or in any schedule or
certificate delivered hereunder, to the extent not waived by the other party.
6.7 INTENT OF PARTIES. Any remedies of the parties 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.
7. REGISTRATION RIGHTS.
7.1 REGISTRATION OF SHARES. For so long as Centennial owns at
least five percent (5%) of the outstanding shares of ViA, and until the fourth
anniversary of the date of this Agreement, each time ViA shall determine to
proceed with the actual preparation and filing of a registration statement under
the Securities Act of 1933 (the "Securities
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Act") in connection with the proposed offer and sale for money of any of its
securities by it or any of its security holders on a form that permits the
inclusion of shares by selling security holders, ViA will give written notice of
its determination to Centennial. Upon the written request of Centennial given
within 30 days after receipt of any such notice from ViA, ViA will, except as
herein provided, cause all such shares of common stock that Centennial has
requested be registered, to be included in such registration statement, all to
the extent requisite to permit the sale or other disposition by Centennial of
such shares to be registered; provided, however, that nothing herein shall
prevent ViA from, at any time, abandoning or delaying any such registration
initiated by it. If any registration pursuant to this section shall be
underwritten in whole or in part, ViA may require that the shares requested for
inclusion pursuant to this section be included in the underwriting on the same
terms and conditions as the securities otherwise being sold through the
underwriters. In the event that, in the good faith judgment of the managing
underwriter of such public offering the inclusion of all of the shares
originally covered by a request for registration would reduce the number of
shares to be offered by ViA or interfere with the successful marketing of the
shares of stock offered by ViA, the number of shares otherwise to be included in
the underwritten public offering may be reduced pro rata among the holders
thereof requesting such registration, other than those certain shareholders who
are parties to or beneficiaries of the Registration Rights Agreement referred to
in SCHEDULE 2.18. Those shares which are thus excluded from the underwritten
public offering shall be withheld from the market by the holders thereof for a
period, not to exceed 90 days, which the managing underwriter reasonably
determines is necessary in order to effect the underwritten public offering.
7.2 COMPLIANCE WITH SECURITIES RULES AND REGULATIONS. In
connection with any registration referred to in this Section 8, ViA 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.
7.3 OBLIGATIONS OF ViA. ViA agrees to furnish to Centennial, at
the sole expense of ViA, 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, ViA shall, at their own
expense in connection with any registration under this Section 8:
(a) Notify Centennial, at any time when a prospectus relating
to the ViA Common Stock is required to be delivered under the Act, of the
happening of any event which ViA, in its best judgment, believes would make a
supplement to, or an
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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 ViA 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
(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 ViA 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.
7.4 INDEMNIFICATION. In the event of the registration of any ViA
Common Stock owned by Centennial, ViA 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 ViA Common Stock is 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 ViA through an instrument duly executed by Centennial specifically
for use in the preparation thereof, ViA shall not be so liable to Centennial.
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8. FUTURE SALES OF SHARES OF CAPITAL STOCK OF ViA.
8.1 PARTICIPATION RIGHT OF CENTENNIAL. For so long as Centennial
owns any ViA Common Stock, if ViA shall sell any additional securities, then ViA
shall, within ten (10) days of such sale 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 a number of additional
securities that would allow Centennial to preserve Centennial's equity interest
in ViA (the "Participation Securities") at an amount equal pro rata to the price
or other consideration paid to ViA for such additional securities; provided,
however, that the participation rights of Centennial pursuant to this Section
8.1 shall not apply to securities issued: (i) as a stock dividend or upon any
subdivision of shares of such common stock, provided that the securities issued
pursuant to such stock dividend or subdivision are limited to additional shares
of such common stock; and (ii) pursuant to a firm commitment underwritten public
offering, or any securities issued thereafter. ViA's written notice to
Centennial shall describe the securities sold by ViA and specify the number,
price and payment terms. Centennial may, in its sole discretion, accept ViA's
offer to purchase any or all of the Participation Securities prior to the
expiration of the aforesaid thirty (30) day period, in which event ViA shall
promptly sell and Centennial shall buy, upon the terms specified, such number of
the Participation Securities as Centennial shall agree to purchase.
9. GENERAL.
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants of the parties contained herein or in
any schedule or certificate delivered hereunder shall survive the Closing Date
and shall remain in full force and effect and shall be unaffected by any
investigation made by the parties 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.
9.2 PRESS RELEASES. Unless approved in advance by Centennial, ViA
shall not 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.
9.3 PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereby are consummated, Centennial shall pay its own expenses and
ViA shall pay its own 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.
9.4 GOVERNING LAW. This Agreement shall be governed in all
respects, whether as to validity, construction, capacity, performance or
otherwise, by the laws of the
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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. ViA and Centennial consent 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.
9.5 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.
37 Manning Road
Billerica, Massachusetts 01821
Attention: Emanuel Pinez, Chief
Executive Officer
with a copy to: Centennial Technologies, Inc.
37 Manning Road
Billerica, Massachusetts 01821
Attention: Donald R. Peck, General
Counsel
if to ViA: ViA, Inc.
11 Bridge Square
Northfield, MN 55057
Attention: James L. Carroll, President
with a copy to: Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, MN 55402
Attention: Thomas O. Martin
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.
9.6 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 ViA shall
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not assign any of its rights or delegate any of its obligations hereunder to any
party without the prior written consent of Centennial.
9.7 HEADINGS. The descriptive headings of the Sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
9.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together shall be considered one and the same
agreement.
9.9 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.
9.10 ENTIRE AGREEMENT. This Agreement and the Voting Agreement
among Centennial, James L. Carroll and David W. Carroll 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.
9.11 ADDITIONAL ACTIONS. Centennial and ViA 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.
9.12 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 duly authorized
officers of Centennial Technologies, Inc. and ViA Inc., as of the day and year
first above written.
CENTENNIAL TECHNOLOGIES, INC.
By:
----------------------------------------
Donald R. Peck
Treasurer
VIA, INC.
By:
----------------------------------------
James L. Carroll
President
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