1
Exhibit 4.12
DATED JUNE 20, 1997
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(1) RADLEY SERVICES LIMITED
(2) PEEK CORPORATION
(3) WPI GROUP (UK)
(4) PEEK PLC
(5) WPI GROUP INC
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A G R E E M E N T
FOR THE SALE AND PURCHASE OF
THE SHARE CAPITAL OF
HUSKY COMPUTERS LIMITED
HUSKY COMPUTERS INC, AND HUSKY COMPUTERS GmbH
-----------------------------------
Xxxxxx Heelis
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx
X0 0XX
Ref: D.6853/0.XXX
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INDEX
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CLAUSES
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1 Interpretation
2 Sale and Purchase
3 Consideration
4 Conditions
5 Completion
6 Period between Contract and Completion
7 Restrictions on the Guarantor and the Vendors
8 Warranties and Representations
9 Guarantees and Indemnities
10 US Lease
11 Pensions
12 Guarantee by the Guarantor
13 General
SCHEDULES
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First Schedule: Vendors and Consideration
Second Schedule: Part 1 - The UK Company
Part 2 - The US Company
Part 3 - The German Company
Third Schedule: Interpretation
Fourth Schedule: Completion Arrangements
Fifth Schedule: Part 1 - Warranties and Representations
Part 2 - US Warranties and Representations
Part 3 - Limitations on Warranties
Sixth Schedule: Pensions
Seventh Schedule: The Properties
Eighth Schedule: Completion Accounts
Ninth Schedule: Conduct of Business before Completion
AGREED FORM DOCUMENTS
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Accounts
Disclosure Letter
Officer's Resignation Letter
Tax Deed
Deed of Indemnity re Litigation
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THIS AGREEMENT is made the day of One thousand nine hundred and
ninety seven
B E T W E E N :-
(1) RADLEY SERVICES LIMITED a company registered in England under number 2617074
whose registered office is at 000 Xxxxxxx Xxxx, Xxxxxx-xx-Xxxxxx, Xxxx, XX0 0XX
("the Vendor")
(2) PEEK CORPORATION a Delaware Corporation having its main place of business at
0000 Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx, Xx.00000-0000 XXX ("the US
Vendor")
(3) WPI GROUP (UK) a company registered in England under number 3227062 whose
registered office is at Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxx, Xxxxx, XX0 0XX
("the Purchaser")
(4) PEEK PLC a company registered in Scotland under number 19299 whose
registered office is at Xxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxx, X0 0XX ("the
Guarantor")
(5) WPI GROUP INC a New Hampshire Corporation having its main place of business
at 0000 Xxx Xxxxxx, Xxxxxxxxxx, XX 00000 XXX ("the Purchaser's Guarantor")
W H E R E A S:
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(A) HUSKY COMPUTERS LIMITED ("the UK Company) is a private company limited
by shares incorporated in England under the Companies Act(s) 1948 to
1976 under company number 1328356 and further information concerning
the UK Company is set out in Part 1 of the Second Schedule.
(B) HUSKY COMPUTERS INC ("the US Company") is a corporation incorporated in
Florida and further information concerning the US Company is set out in
Part 2 of the Second Schedule.
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(C) HUSKY COMPUTERS GmbH ("the German Company") is a corporation
incorporated in Germany and is registered at the Commercial Register of
the Siegburg District Court ("Amsgericht") under file number HRB 3396,
formerly Cologne Xxxxxxxx Xxxxx, XXX 00000, and further information
concerning the German Company is set out in Part 2 of the Second
Schedule.
(D) The Vendors are respectively the beneficial holders of the entire
issued share capital of the Companies as set out in the First Schedule
and the Vendors have the right, power and authority to sell and
transfer such shares free from all and any claims charges liens
encumbrances options or equities thereto.
(E) The Guarantor is the ultimate holding company of the Vendors and the
Purchaser's Guarantor is the ultimate holding company of the Purchaser.
(F) The Vendors have respectively agreed to sell and the Purchaser has
agreed to purchase the entire issued share capital of each of the
Companies on the terms and subject to the conditions set out in this
Agreement and in the Schedules hereto ("the Agreement").
NOW IT IS HEREBY AGREED as follows:
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INTERPRETATION
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In this Agreement the words and expressions defined in the Third
Schedule hereto shall (unless the context otherwise requires)
have the meanings thereby given to them and this Agreement
shall be construed and interpreted accordingly.
SALE AND PURCHASE
Subject to the terms of this Agreement
the Vendor shall sell (or procure the sale of) the UK Shares
and the German Shares with full title guarantee
the US Vendor shall sell (or procure the sale of) the US
Shares with the full title guarantee
and the Purchaser shall purchase the Shares in each case free
from all Encumbrances and together with all rights now or
hereafter attaching thereto
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The Purchaser shall not be obliged to complete the purchase unless
the purchase of all the Shares is completed simultaneously
the UK Vendor hereby waives any pre-emption rights it may have
relating to the UK Shares and the German Shares
howsoever conferred
the US Vendor hereby waives any rights it may have to purchase
the US Shares howsoever conferred
The Purchaser shall be entitled to the benefit of the Shares with
effect from the date hereof.
CONSIDERATION
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The consideration for the said sale and purchase of the Shares shall
be an amount equal to the aggregate of the Net Tangible
Assets and (p)7,000,000 and shall be apportioned between
the Vendors in the manner set opposite their respective names
in the First Schedule.
The sum of (p)13,000,000 on account of the Consideration shall be paid
on the date hereof into one or more joint accounts
respectively in the joint names of the Vendors' Solicitors and
the Purchaser's Solicitors to be held in escrow on terms that
the total sum of (p)13,000,000 plus interest accrued (a) shall
be paid out to the Vendors' Solicitors on Completion of the
Vendors' obligations under Clause 5 or (b) in the event that
Completion shall not occur as hereinafter provided, shall be
paid out to the Purchaser's Solicitors. The parties hereby
instruct their respective solicitors accordingly.
CONDITIONS
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This Agreement is conditional upon the passing at a general meeting of
the Guarantor of a resolution approving the sale of the
Companies.
If the condition referred to in paragraph 4.1 is not fulfilled on or
before 5 August 1997, this Agreement shall be void and cease
to have effect and the rights and obligations of the parties
hereunder shall cease and determine without any claim by any
of them against the other or others of them.
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In the event of it becoming apparent on or before Completion that any
of the Guarantor, the Vendor or the US Vendor is in material
breach of any of the Warranties, the Guarantor's Warranty or
any other material term of this Agreement, the Purchaser may
rescind this Agreement by notice in writing to the Guarantor
but without prejudice to any other rights it may have.
"Material Breach" for the purposes of this clause shall mean
an event or matter which would cause the value of the shares
to decrease by 5% or more.
The Guarantor shall be entitled to waive the condition contained in
Clause 4.1 above by giving written notice to the Purchaser
whereupon the said condition shall be deemed to have been
satisfied.
COMPLETION
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Subject to the provisions of this Clause Completion shall take place
as soon as practicable after the fulfilment of the condition
in Clause 4.1 above, but in no event later than 5th August
1997 ("the Completion Date") at the offices of the Vendors'
Solicitors whereupon the business described in the Fourth
Schedule will be transacted.
If in any respect the provisions of the Fourth Schedule are not
complied with on the last date for Completion set by Clause
5.1 but this Agreement shall otherwise have become
unconditional then the Purchaser may:
defer Completion to a date not more than twenty-eight
days after the last date for Completion set
by Clause 5.1 (and so that the provisions of
this Clause 5 shall apply to Completion as
so deferred); or
proceed to Completion so far as practicable (without
prejudice to its rights hereunder); or
rescind this Agreement.
PERIOD BETWEEN CONTRACT AND COMPLETION
--------------------------------------
Following the date of this Agreement up to and including the Completion
Date the parties agree that the business of the Companies will
be conducted in accordance with the wishes of the Purchaser
and under the effective control of the Purchaser PROVIDED that
the Vendors shall remain the registered owners of the Shares
and
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shall be entitled to appoint and remove directors and officers
of the Companies and the Vendors and the Purchaser agree that
neither of them shall permit without the written consent of
the other any of the Companies to do any of the things set out
in the Ninth Schedule, FURTHER PROVIDED ALWAYS that any losses
and profits attributable to the Companies in the period
between contract and completion shall be at the risk of, or as
the case may be, for the benefit of, the Purchaser.
The Purchaser shall indemnify the Vendors and each of them against all
losses, damages, costs or liabilities suffered or incurred by
the Vendors or any of them arising out of or in connection
with any act or omission of any of the Companies, their
servants and agents performed or omitted to be performed at
the request or instigation of the Purchaser.
During the said period, the Vendor shall not be obliged to fund the
businesses of the Companies and the Purchaser shall be obliged
to maintain adequate working capital facilities for the
continuing activities of the businesses of the Companies.
RESTRICTION ON THE GUARANTOR AND THE VENDORS
--------------------------------------------
Each of the Guarantor and the Vendors hereby covenants and undertakes
with and to the Purchaser and the Company in further
consideration of this Agreement (and as separate and
independent agreements) that save with the written consent of
the Purchaser they will not and will procure that no Vendor
Group Company will:-
at any time during the period of three years after the date of
Completion be engaged concerned or interested either
solely or jointly or with any other period firm or
company and whether directly or indirectly in the
carrying on of any business which is competitive or
likely to be competitive with any businesses carried
on by any of the Companies during the period of one
year prior to the date of Completion including
(without limitation) the business of the design,
manufacture and sale of handheld computer systems
including the provision of related services for
incorporation into customer specific applications.
PROVIDED THAT nothing in this clause shall prevent
the Guarantor (or any of its subsidiaries) from
acquiring any business or company, part of whose
business is competitive as aforesaid but
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where such part represents less than 20% of the
turnover of the company or business concerned. The
Guarantor will make reasonable efforts to dispose of
such part within a reasonable time from such
acquisition.
at any time hereafter either use for its own benefit or
disclose to any person other than the Purchaser any
secret information other than information which
relates to the Guarantor or any of its subsidiaries
(other than the Companies) concerning the business
accounts or finances of any of the Companies any of
their transactions or affairs or concerning
techniques or methods used in the business of any of
the Companies which may come to its knowledge and
shall use its best endeavours to prevent the
publication or disclosure of any confidential
information concerning such matters unless such
information shall then be in the public domain
otherwise than by reason of a breach of the terms of
this paragraph
at any time hereafter use or procure the use in connection
with any business of the names including the words
"Husky" or any other trade names currently used by or
reserved for the use of the Companies or any
colourable imitation thereof
The duration, extent and application of each of the
restrictions contained in Clause 7.1 above are
considered to be no greater than is necessary for
the protection of the goodwill of the business of
the Companies and the value of the Shares and the
restrictions contained in Clause 7.1 are considered
reasonable by the parties having regard to the
global nature of the business of the Companies as
conducted by the Vendor Group and intended to be
conducted by the Purchaser, but in the event that
any such restriction shall be found to be void but
would be valid if some part thereof were deleted
such restriction shall apply with such deletion as
may be necessary to make it valid and effective and
shall be enforced to the extent permitted by law
The Guarantor agrees to procure that the name of Husky
Computers BV is changed within two months of
Completion so as to remove reference to the name
"Husky" or any colourable imitation thereof
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WARRANTIES AND REPRESENTATIONS
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The Vendor warrants and represents to the Purchaser in the terms of
Part I of the Fifth Schedule hereto in respect of the UK
Company and the German Company and the US Vendor warrants and
represents to the Purchaser in the terms of Parts I and 2 of
the Fifth Schedule hereto in respect of the US Company and the
Vendor and the US Vendor acknowledge that the Purchaser is
entering into this Agreement in reliance on each of the
Warranties
The Warranties are given subject to matters fairly disclosed in the
Disclosure Letters
The Warranties shall be separate and independent and save as expressly
provided shall not be limited by reference to any other
sub-paragraph or anything in this Agreement other than the
provisions of Part 3 of the Fifth Schedule.
Without restricting the rights of the Purchaser or the ability of the
Purchaser to claim damages on any basis available to it in the
event that any of the Warranties is broken or proves to be
untrue or misleading, the Warrantors shall in such event pay
to the Purchaser on demand the amount necessary to put the
Companies or any of them into the position which would have
existed if the Warranties had not been broken and had been
true and not misleading together with all costs and expenses
incurred by the Purchaser and any of the Companies as a result
of such breach.
Where any statement in the Fifth Schedule is qualified by the
expression "KIB" "so far as the Warrantors are aware" or the
expression "to the best of the Warrantors' knowledge,
information and belief "or any similar expression or wording
of similar import, that statement shall be deemed to include
an additional statement that it has been made after due
enquiry of the Directors of Husky Computers Limited (other
than X X Xxxxxx and A Xxxxxxxx) and Messrs L Lamb and M A
Xxxxxxx
Any information supplied by or on behalf of the Companies or the
respective officers to the Guarantor, the Warrantors or their
agents or accountants, solicitors or other advisors in
connection with the Warranties or otherwise in relation to the
business and affairs of the Companies shall not constitute a
representation or warranty or guarantee as to the accuracy
thereof by the Company and the Warrantors and the Guarantor
hereby waive any and all claims which they might otherwise
have against the Company in respect thereof
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The Guarantor and the Warrantors shall procure that (save only as may
be necessary to give effect to this Agreement) neither they
nor the Company shall knowingly do or procure any act or
omission before Completion which would constitute a breach of
any of the Warranties if they were given at Completion or
which would make any of such Warranties inaccurate or
misleading if they were so given
Each of the sub-paragraphs of Part 1 of the Fifth Schedule applies
(unless the context otherwise requires) to each of the
Companies and references therein to "the Company" shall be
interpreted accordingly.
Guarantor's Warranty
--------------------
The Guarantor warrants and represents to the Purchaser that
the aggregate value of the Net Tangible Assets of the
Companies at the close of business on 20 June 1997
determined in accordance with the same accounting
policies as those applied in the Accounts and in
accordance with the Eighth Schedule will not be less
than (p)6,000,000 less the amount of any overdraft
with Lloyds Bank plc of the UK Company at Completion.
The parties agree that the procedure set out in the Eighth
Schedule shall be followed in relation to the
determination of the Net Tangible Assets.
GUARANTEES AND INDEMNITIES
--------------------------
Each of the Guarantor and the Vendors undertake with the Purchaser that
they will each use their best endeavours to procure the release of the
Companies from all guarantees, indemnities and securities given by the
Companies in respect of liabilities of any Associate thereof and prior
to the formal release of the Companies from liability under or in
connection with any such guarantees, indemnities and securities shall
indemnify the Companies and keep them indemnified from and against any
payment made under any such guarantees, indemnities and securities and
any expense, loss, damage, cost, claim or liability whatsoever which
the Company may incur under or in connection therewith
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US LEASE
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The US Vendor and the Purchaser shall co-operate together with a view
to obtaining the consent of the landlord of the US Property
pursuant to clause 25 of the US Lease.
The US Vendor and the Purchaser shall use all reasonable endeavours to
obtain from the Landlord a release of any liabilities of the
US Company in respect of the US Property and any liabilities
of the US Vendor as guarantor of the obligations of the US
Company with regard thereto and in connection therewith, the
Purchaser shall offer the Purchaser's Guarantor as a
substitute guarantor for the obligations of the tenant under
the US Lease.
Pending the obtaining of landlord's consent pursuant to clause 25 of
the US Lease and the release of the US Company's and the US
Vendor's liabilities the Purchaser and the Purchaser's
Guarantor shall indemnify and keep indemnified the US Company
and the US Vendor against all costs, claims, demands, expenses
and liabilities whatsoever arising pursuant to the US Lease or
the guarantee thereof by the US Vendor.
PENSIONS
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The provisions of the Sixth Schedule shall apply.
GUARANTEE BY THE GUARANTOR
--------------------------
In consideration of the Purchaser entering into this Agreement at its
request the Guarantor unconditionally and irrevocably
guarantees to the Purchaser
as a primary obligation and debt of the Guarantor the due and
punctual payment by the Vendors and each of them of
any sum due under this Agreement and the Tax Deed
the due and punctual performance of any obligation of the
Vendors and each of them or any other member of the
Vendor Group under this Agreement and the Tax Deed
and undertakes with the Purchaser that if and whenever any
Vendor shall be in default of any of its obligations
under this Agreement and the Tax Deed the
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Guarantor will forthwith make good the default as if
the Guarantor instead of that Vendor was expressed to
be the primary obligor under this Agreement and the
Tax Deed (as the case may be) and notwithstanding any
indulgence granted by the Purchaser to that Vendor.
This guarantee shall not be affected by any legal limitation disability
or other circumstances relating to the Vendors or any
irregularity unenforceability or invalidity or of any
obligations of the Vendors under this Agreement.
The Purchaser's Guarantor (unconditionally and irrevocably guarantees
to the Guarantor (for itself and as trustee for the Vendors),
the due and punctual performance by the Purchaser of each of
its obligations hereunder and under any document in agreed
terms
as a primary obligation and debt of the Purchaser's Guarantor
its due and punctual payments by the Purchaser of any
sum that may become due to the Vendors (or any of
them under this Agreement);
the due and punctual performance of any obligation of the
Purchaser under this Agreement and the Tax Deed.
GENERAL
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This Agreement shall not be assignable save that the Purchaser shall be
entitled to assign the same to a Related Company and
accordingly the expression "the Purchaser" as used herein
shall where the context so admits include any such assignee
PROVIDED that (a) the Purchaser shall remain primarily liable
for all its obligations under this Agreement and (b) the
guarantee of the Purchaser's Guarantor shall remain in full
force and effect
This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the parties hereto in
connection with the sale and purchase of the Shares and it is
expressly declared that no variations hereof shall be
effective unless made in writing and agreed between all the
parties hereto. The Purchaser agrees that it will have no
remedy in respect of any untrue statement made to the
Purchaser upon which the Purchaser relied in entering into
this Agreement and that the only remedies available to the
Purchaser will be for breach of contract.
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The provisions of this Agreement insofar as the same shall not have
been performed at Completion shall remain in full force and
effect notwithstanding Completion
Subject to Clause 13.1 above this Agreement shall be binding upon and
enure for the benefit of the respective assigns successors and
personal representatives of the parties
At any time after the date hereof the Vendors and the Guarantor shall
at the request of the Purchaser, at their cost, execute such
documents as the Purchaser may reasonably require for the
purpose of vesting the Shares in the Purchaser or its nominee
and giving to the Purchaser the full benefit of all the
provisions of this Agreement
This Agreement shall be governed by and construed in accordance with
the laws of England and Wales and the parties hereby submit to
the non-exclusive jurisdiction of the Courts of England and
Wales
Each party to this Agreement shall pay its own costs of and incidental
to this Agreement and the sale and purchase hereby agreed to
be made
No announcement or circular in connection with the subject matter of
this Agreement (except any such announcement as may be
required in the case of the Guarantor to comply with the
requirements of The Stock Exchange or in the case of the
Purchaser to comply with the requirements of the NASDAQ/NMS)
shall be made by or on behalf of the Vendors the Guarantor or
the Purchaser without the prior written approval of the
Guarantor (on its own behalf and on behalf of the Vendors) and
the Purchaser, such consent not being unreasonably withheld or
delayed
(a) Any notice required to be given under this Agreement
shall be sufficiently given:
(i) if delivered personally; or
(ii) if sent by courier; or
(iii) if sent by facsimile copier or other
electronic means of communication followed
by special air service delivery; or
(iv) by letter despatched by first class recorded
delivery pre-paid post (by airmail if to an
overseas address) in which case such
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notice is deemed to be given at the close of
business on the next following Business Day,
(b) "Business Day" means any day (other than a Saturday
or a Sunday) on which clearing banks are open for a
full range of banking transactions in the country of
the recipient
(c) Any notice required to be given under this Agreement
shall be sent:
(i) to the Guarantor and the Vendors
c/o Peek Plc
000 Xxxxxxx Xxxx,
Xxxxxx-xx-Xxxxxx,
Xxxx,
XX0 00X
for the attention of Xxxx Xxxxxxx
(ii) to the Purchaser at:
WPI Group, Inc.
0000 Xxx Xxxxxx
Xxxxxxxxxx
Xxx Xxxxxxxxx 00000
Facsimile No: 000 000 0000
For the attention of: Xxxxxxx Xxxx, Vice
President and General Counsel
with a copy to the Purchaser's Solicitors
at:
Xxxxxx Heelis
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx
X0 0XX
Facsimile No: 0161 661 0048
For the attention of: Xxxxxxxxxxx Xxxx
or to such other address or facsimile number as is
notified in writing from time to time by any party to
the other parties to this Agreement
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Any date or period mentioned in this Agreement may be extended by
mutual agreement between the parties hereto, but as regards
any date or period (whether or not extended as aforesaid) time
shall be of the essence of this Agreement
No waiver by any of the parties of any of the requirements hereof or of
any of its rights hereunder shall have effect unless given in
writing and signed by the party or by the party or by the
director or other duly authorised officer of such party
The Vendors and the Guarantor agree that the obligations and
undertakings on their part which are for the benefit of the
Companies are owed to the Purchaser both for itself and as
trustee for the Companies and the Purchaser hereby declares
itself a trustee of the benefit of such obligations and
undertakings for itself and the Companies
If there are provisions of this Agreement (or of any agreement of
which it forms part) by virtue of which particulars of this
Agreement (or of an agreement of which it forms part) are, at
the date of this Agreement, required to be furnished to the
Director General of Fair Trading under the Restrictive Trade
Practices Act 1976 and 1977;
the parties shall ensure that those particulars are furnished
as soon as possible and in any event within the time
specified by those Acts;
those provisions do not take effect until the day after those
particulars have been furnished.
None of the Vendor the US Vendor and the Guarantor shall be liable to
the Purchaser in respect of any losses costs damages
liabilities or expenses arising in any way whatsoever out of
or in connection with anything done or omitted to be done by
any of them on or before Completion or arising out of or in
connection with any property goods or other assets of the
Companies or any other property that they have at any time
owned or occupied in so far as they relate to or arise from
any Environmental Liability (as defined in Paragraph 9 of
Part 1 of the Fifth Schedule hereto) or any actual or alleged
violation of or non-compliance with any Environmental
Requirement (defined as aforesaid) or Environmental Licence
(defined as aforesaid) unless and to the extent that they
constitute a breach of one or more of the environmental
warranties of Paragraph 9 of the Fifth Schedule hereto.
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I N W I T N E S S whereof this Agreement has been entered into the day and
year first before written
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SIGNED BY )
FOR AND ON BEHALF OF RADLEY )
SERVICES LIMITED )
SIGNED BY )
FOR AND ON BEHALF OF PEEK )
CORPORATION )
SIGNED BY )
FOR AND ON BEHALF OF WPI )
GROUP (UK) )
SIGNED BY )
FOR AND ON BEHALF OF PEEK PLC )
SIGNED BY )
FOR AND ON BEHALF OF WPI )
GROUP, INC. )
