EXHIBIT 10.33
SHARE PURCHASE OFFER AGREEMENT
between and among
ARTESYN COMMUNICATION PRODUCTS UK LIMITED
and
ZOZMA INVESTMENTS LIMITED
and
XXXXX XXXXX
Dated: 24 March 2000
SHARE PURCHASE OFFER AGREEMENT
THIS SHARE PURCHASE OFFER AGREEMENT (the "Agreement"), is made this
24th day of March 2000, by and between Artesyn Communication Products UK
Limited, a limited company incorporated in Scotland (Registered Number SC
205009) and having its registered office at 00 Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX
(the "Buyer"), Zozma Investments Limited, a limited company incorporated in the
Bailiwick of Guernsey (Registered Number 30291) and having its registered office
at Xxxxxxxxxxx Xxxxxxxxx, Xx. Xxxxxxx, Xxxxxxxx XX0 0XX ("Zozma"), and Xxxxx
Xxxxx (Zozma and Xxxxx Xxxxx together, the "Sellers").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Sellers are presently the owners of 100 per cent. of the
issued and outstanding share capital (the "Spider Ordinary Shares") of Spider
Software Limited, a limited company incorporated in Scotland (the "Company");
WHEREAS, Buyer desires to acquire 100 per cent. of the Spider Ordinary
Shares, and to have all outstanding options to subscribe for shares in the
Company surrendered or otherwise terminated;
WHEREAS, the Sellers desire to sell to Buyer, and Buyer desires to
purchase from the Sellers, all of the Spider Ordinary Shares held by them, all
in the manner and subject to the terms and conditions hereinafter set forth;
WHEREAS, in order to induce Buyer to agree to purchase such Spider
Ordinary Shares simultaneously herewith, Sellers have executed and delivered to
Buyer a Deed of Representations, Warranties and Covenants in the form of Exhibit
A hereto (the "Deed of Warranty");
WHEREAS, to further induce Buyer to agree to purchase such Spider
Ordinary Shares, Zozma has agreed to (a) invite the holders of options (the
"Option Holders") to subscribe for unissued shares in the Company to renounce
such options for and in exchange for consideration to be paid by Zozma from the
Purchase Price, the invitation, and the statement of such consideration, to be
made by despatch to the Option Holders of a document in the form of Exhibit B.1
hereto, and (b) invite all employees ("Pre-Option Employees") of the Company who
may be entitled to receive options to subscribe for unissued shares in the
Company to renounce such rights for and in exchange for consideration to be paid
by Zozma from the Purchase Price, the invitation, and the statement of such
consideration, to be made by the despatch to the Pre-Option Employees of a
document in the form of Exhibit B.2 hereto (together, the "Circulars"); and
WHEREAS, it is a condition to Buyer's obligations hereunder that all
Option Holders and Pre-Option Employees accept such invitations and deliver
Option Surrenders (as defined herein).
1
Capitalized terms not otherwise defined xxxxx shall have the meanings
as set forth in the Deed of Warranty.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, the
parties hereby agree as follows:
1. Terms of Acquisition.
1.1 Share Purchase. Subject to all of the conditions set forth in
Clause 2.1 and 2.2 being satisfied or waived, as the case may be, and to Closing
taking place, Buyer agrees to purchase and the Sellers agree to sell with full
title guarantee the number of Spider Ordinary Shares set forth opposite the name
of such Seller on Schedule 1.1 hereto together with all dividend, distributions
and other rights of any kind attaching or accruing (now or at any time
hereafter) thereto. The share certificates evidencing the Spider Ordinary Shares
shall be delivered at the Closing (as hereinafter defined) accompanied by duly
executed share transfer forms. Notwithstanding the covenants implied by Section
6(2) and the exclusion of "charges, encumbrances or rights which that person
could not reasonably be expected to know about" in Section 3(1) of the Law of
Property (Miscellaneous Provisions) Xxx 0000 none of which shall apply between
the Parties, all Spider Ordinary Shares shall be sold and purchased free and
clear of any and all encumbrances.
1.2 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Sellers' counsel in
Edinburgh Scotland, at 10:00 A.M., on the day which is three Business Days after
the day on which Zozma has notified the Buyer in writing (the "Closing Notice")
that acceptances in the form set out in Exhibits C.1 and C.2 hereto ("Option
Surrenders") have been received from each of the Option Holders and Pre-Option
Employees, or at such other place and/or on such other date and time as shall be
agreed upon by Buyer and the Sellers (the "Closing Date").
1.3 Purchase Price. The aggregate purchase price for 100 per cent. of
the Spider Ordinary Shares (the "Purchase Price") shall be:
(a) US$28,000,000 less Closing Date Indebtedness and Sellers'
Transaction Costs, subject to distribution as provided in Clause 1.5 hereto and
the Escrow Agreement attached as Exhibit D hereto and being entered into
simultaneously herewith (the "Closing Escrow Agreement"), inclusive of the
amounts payable in respect of the Option Surrenders.
(b) the sum of US$2,485,500 on each of 31 March 2002 and 31
March 2003; and
(c) for each of the Company's trading periods of 12 months
ending on 31 March 2001, 31 March 2002 and 31 March 2003 (each an "Incentive
Payment Year"), an amount, if any, calculated pursuant to Clause 1.7 hereof.
1.4 Initial Payment. On the date of this Agreement, Buyer shall pay to
an escrow account in the joint name of Messrs. Xxxxxxx Xxxxx W.S. and Xxxxxxx,
as escrow agents (the "Escrow Agents"), to be held and disbursed as set forth in
Clause 1.5 hereto and in the Closing Escrow Agreement, the aggregate amount (the
"Initial Payment") of US$28,000,000.
2
The Initial Payment shall be payable in cash by wire transfer of immediately
available funds to The Royal Bank of Scotland plc, 00 Xx. Xxxxxx Xxxxxx,
Xxxxxxxxx XX0 0XX (Sort Code 83 51 00, Account BSFBOSDM-US01, Swift Number
XXXXXX0X). Receipt of funds by the Escrow Agents pursuant to this Clause shall,
subject to the Buyer giving to the Escrow Agents instructions in accordance with
the Escrow Agreement, constitute good discharge of the Buyer in respect of that
portion of the Purchase Price due and payable at Closing to the Sellers and,
subject as aforesaid, the Buyer shall have no responsibility to ensure that the
funds are applied in paying the Sellers, the Option Holders or the Pre-Option
Employees in accordance with their respective entitlements.
1.5 Closing Disbursements.
At Closing, Buyer and Sellers shall direct the Escrow Agents, in
writing, to disburse the Initial Payment as follows:
(a) to the Company, an amount, in pound sterling, equal to the
sum of the Closing Date Indebtedness and PAYE Obligations;
(b) to Xxxxxxx, an amount, in pound sterling, equal to the
aggregate Option Surrender Amount due to Option Holders and Pre-Option Employees
in respect of Option Surrenders and an amount in pounds sterling equal to the
Sellers' Transaction Costs;
(c) to Xxxxx Xxxxx, an amount, in pound sterling, equal to the
Pound Sterling Equivalent of the product of the Notional Share Price times the
number of Spider Ordinary Shares set forth opposite the name of such Seller on
Schedule 1.1 hereto, minus an amount equal to a percentage of the Warranty
Holdback Amount set forth opposite the name of such Seller on Schedule 1.7
hereto;
(d) to Zozma, an amount, in U.S. dollars, equal to the product
of the Notional Share Price times the number of Spider Ordinary Shares set forth
opposite the name of such Seller on Schedule 1.1 hereto, minus an amount equal
to a percentage of the Warranty Holdback Amount set forth opposite the name of
such Seller on Schedule 1.7 hereto;
(e) to the account in the joint name of the escrow agents
under the Warranty Escrow Agreement (as defined in Subclause 2.1(i) hereto), an
amount in U.S. Dollars, equal to the Warranty Holdback Amount; and
(f) to Buyer, the balance of the Initial Payment and all
interest earned in the escrow account thereon.
1.6 Definitions.
For purposes hereof,
(i) "Closing Date Indebtedness" shall mean all
obligations of the Company, as of the Closing Date, in respect of indebtedness
for borrowed money (but not in respect of trade or other creditors incurred in
the ordinary course of business);
3
(ii) "Sellers' Transaction Costs" shall mean all
costs incurred by or chargeable to or payable by the Sellers, as of the Closing
Date, in connection with consummating the transactions contemplated by this
Agreement (it being understood that the Company will not be responsible for any
such costs and the Sellers will be responsible for all such costs), including,
without limitation, transfer taxes (other than stamp duty), legal fees,
accounting fees, and consulting fees, but not including PAYE Obligations or
Employer's National Insurance Contributions, in each case arising as a
consequence of the payments of the Option Surrender Amounts to Option Holders
and Pre-Option Employees;
(iii) "Notional Share Price" shall mean the amount
obtained by (a) subtracting the U.S. Dollar Equivalent of the sum of Closing
Date Indebtedness and Sellers' Transaction Costs from US$28,000,000 and (b)
dividing the result by the sum of (1) the total number of Spider Ordinary Shares
set forth in Schedule 1.1 hereto and (2) the aggregate number of Total Options
set forth in the Share Options Analysis (line item "Total Staff Shares" in Share
Option Analysis);
(iv) "Notional Exercise Price" shall mean, with
respect to each Option Holder and Pre-Option Employee, the amount obtained by
multiplying the number of Total Options set forth opposite the name of such
Option Holder or Pre-Option Employee on the Share Options Analysis by
(pound)1.00;
(v) "Option Surrender Amount" shall mean, with
respect to each Option Holder and Pre-Option Employee, the amount obtained by
(a) multiplying the Pound Sterling Equivalent of the Notional Share Price by the
number of Total Options set forth opposite the name of such Option Holder or
Pre-Option Employee on the Share Options Analysis and (b) subtracting from the
result an amount equal to the sum of (1) PAYE Obligations in respect of the
payment hereunder to be made to such Option Holder or Pre-Option Employee and
(2) the Notional Exercise Price with respect to such Option Holder or Pre-Option
Employee;
(vi) "PAYE Obligations" shall mean all income tax
payable by the Company under the UK PAYE system and the US equivalent in respect
of the payments to the Option Holders and Pre-Option Employees pursuant to the
Circulars and all Employees' National Insurance Contributions payable on behalf
of Option Holders and Pre-Option Employees in respect of such payments;
(vii) "U.S. Dollar Equivalent" shall mean the U.S.
dollar equivalent of pound sterling determined using the same exchange rate used
for purposes of determining Pound Sterling Equivalent;
(viii) "Warranty Holdback Amount" shall mean the
amount obtained by (A) subtracting the U.S. Dollar Equivalent of the sum of
Closing Date Indebtedness and Sellers' Transaction Costs from US$28,000,000 and
(B) multiplying the result by 10 per cent;
(ix) "Share Option Analysis" shall mean the Share
Option Analysis attached as Schedule 3.1.2 to the Deed of Warranty; and
4
(x) "Pound Sterling Equivalent" shall mean the pound
sterling equivalent of U.S. dollars determined at the rate at which the Escrow
Agents are able to purchase pond sterling pursuant to the Closing Escrow
Agreement.
1.7 Payment of Incentive Payments.
(a) In the event that for any Incentive Payment Year, a
payment by Buyer shall become due and payable under Buyer's Earn-Out Incentive
Scheme (the "Incentive Scheme") as described in Part B of Exhibit E hereto
(without regard to whether any Participating Employee remains employed by the
Company), Sellers shall become entitled to receive Incentive Payments hereunder
in respect of such Incentive Payment Year, whether or not the Sellers shall then
have any continuing connection with the Company. The aggregate amount of such
Incentive Payments Sellers shall be entitled to receive in any Incentive Payment
Year shall be equal to 82.85 per cent. of the Base Incentive Amount calculated
pursuant to the Incentive Scheme, and such sum shall be allocated between them
in the percentages set out in Schedule 1.7 hereto.
(b) In order to determine whether amounts shall be payable
under the Incentive Scheme, within 30 days after the end of each Incentive
Payment Year, Buyer shall deliver, or procure to be delivered, to Sellers a
written statement ("EBIT Statement") containing its calculation of EBIT (as
defined in the Incentive Scheme) in reasonable detail, together with a copy of
any financial statements pertaining to the Business on which such EBIT Statement
is based, a certificate of an officer of the Buyer that the amount shown in the
EBIT Statement has been calculated in accordance with the Incentive Scheme and
that the terms of Schedule 1.9 have been observed in respect of the relevant
Incentive Plan Year, and a calculation, in reasonable detail, of the amount of
the Incentive Payment, if any, Buyer shall elect to pay in shares of capital
stock pursuant to Subclause 1.7(c) below. Buyer shall procure that the Sellers
and their advisers shall have reasonable access to the Company's records in
order to verify the information contained in the EBIT Statement.
(c) Buyer may elect to pay all or any part of any Incentive
Payment in cash or in freely tradeable shares of the common stock of its parent
company, Artesyn Technologies, Inc., having an equivalent value, based on the
average closing price of such shares on the applicable exchange on which it is
then traded over the 10-trading day period immediately preceding the date on
which the Incentive Payment is due pursuant to Subclause 1.7(d) below (in the
absence of any dispute), and ranking equally in all respects with all other
shares of common stock of Artesyn Technologies, Inc.
(d) Each Incentive Payment shall be payable, in cash or
shares, as the case may be, on or before the 15th day after delivery of the
related EBIT Statement or, if there exists a dispute as to the accuracy of the
EBIT Statement, within 3 business days from a final determination of such
dispute in accordance with the procedures set forth in Clause 1.8 below.
Incentive Payments shall be paid to Sellers in the percentages set forth in
Schedule 1.7 hereto.
5
1.8 Dispute Resolution.
If the Sellers shall question the accuracy of any EBIT Statement
delivered pursuant to Clause 1.7 hereto, then the Sellers shall have 10 days
from delivery thereof to raise any objection thereto by delivery of written
notice to Buyer setting forth such objections in reasonable detail. In the event
that the Sellers shall fail to so deliver such written objections with respect
to any EBIT Statement within such 10-day period, then any portion of such EBIT
Statement in respect of which no such objection is so delivered shall be deemed
final and binding. In the event that any such objections are so delivered, Buyer
and the Seller shall attempt, in good faith, to resolve such objections and, if
unable to do so within 15 days of delivery of such objections, shall, within 10
business days thereafter designate an internationally recognized firm of
independent public accountants, mutually satisfactory to both (the "Independent
Accountants"). In the event that Buyer and the Sellers are unable to agree on
the Independent Accountants within such 10-business day period, the Independent
Accountants shall be designated by, but shall not be, the independent
accountants of Buyer within 10 business days thereafter. The Independent
Accountants shall resolve all remaining objections to the EBIT Statement made by
the Sellers in accordance herewith within 30 days from their date of
designation. The determination of the Independent Accountants shall be in
writing, delivered to Buyer and the Sellers and shall be final and binding on
the parties.
The fees and expenses of the Independent Accountant shall be deducted
from the Incentive Payment unless the final determination of the EBIT Statement
at issue shall result in an increase in amount of the Incentive Payment of five
(5%) percent or more, in which case such fees and expenses shall be borne by
Buyer.
1.9 Conduct of Business
Buyer agrees that it will cause the Business to be conducted during
each Incentive Payment Year in substantial conformity with Schedule 1.9 hereto.
2. Conditions to Closing.
2.1 Conditions of Buyer's Obligation to Close. The obligation of Buyer
to close under this Agreement is subject to the satisfaction of the following
conditions any of which (subject to Clause 3.16 hereof with respect to the
conditions set forth in Subclauses (b) and (c)) may be waived by Buyer in
writing at or prior to Closing:
(a) Closing Notice. On or before 21 April 2000, Zozma shall
have served the Closing Notice.
(b) Agreements and Conditions. On or before the Closing Date,
the Sellers shall have complied with and duly performed in all material respects
all agreements and conditions on their part to be complied with and performed on
or before the Closing Date hereunder and under the Deed of Warranty.
(c) Representations and Warranties. The representations and
warranties contained in the Deed of Warranty, or otherwise made in connection
with the transactions contemplated hereby, shall be true and correct on and as
of the Closing Date with the
6
same force and effect as though such representations and warranties had been
made on and as of the Closing Date.
(d) Certificate. Buyer shall have received a certificate dated
the Closing Date and executed by each Seller to the effect that the conditions
expressed in Clauses 2.1(b) and 2.1(c) have been fulfilled and which sets forth
the amount of (i) Closing Date Indebtedness, (ii) Sellers' Transaction Costs and
(iii) the amount of the PAYE Obligations. All statements made in such
certificate shall constitute representations and warranties of the Sellers,
jointly and severally, for all purposes of, and subject to the terms of Clause
8.4 of, the Deed of Warranty as though fully set forth therein. The Sellers
shall provide with such certificate, letters (where available) from each payee
of Closing Date Indebtedness, invoices in respect of Sellers' Transaction Costs
and a copy of a letter from the Company estimating the amount of the PAYE
Obligations.
(e) Governmental Approvals. All governmental agencies,
departments, bureaus, commissions and similar bodies, the consent, authorization
or approval of which is necessary under any applicable law, rule, order or
regulation for the consummation by the Sellers of the transactions contemplated
by this Agreement shall have consented to, authorized, permitted or approved
such transactions.
(f) Consents. Buyer shall have received copies of all consents
required by the Company from third parties necessary to effectuate this
Agreement and to consummate the transactions contemplated hereby, except that no
consents will be required with respect to the contracts listed in Clause 8.2 of
the Disclosure Letter.
(g) Non-Compete Agreement. Xxxxxxxx Xxxxxxxx shall have
entered into a non-compete agreement with the Company in the form of Exhibit F
hereto.
(h) Spider Ordinary Shares. Buyer shall have received
certificates representing all of the Spider Ordinary Shares, with duly executed
share transfers, owned by Sellers, and duly executed Option Surrenders from all
of the Option Holders and Pre-Option Employees.
(i) Warranty Escrow. Sellers shall have executed and delivered
the Warranty Escrow Agreement attached as Exhibit G hereto (the "Warranty Escrow
Agreement").
(j) Termination of Profit Sharing Plan. Buyer shall have
received copies of letters substantially in the form of Exhibit H hereto, signed
by each employee of the Company in respect of termination of the Company's Bonus
Scheme (as defined in the Deed of Warranty).
(k) Closing Deliveries.
(i) On Closing the Sellers shall deliver to Buyer the
items and documents specified below:
7
(1) The common seal, if any, of the Company
and the updated statutory books of the Company up to
the date of Closing and each certificate of
incorporation and certificate of incorporation on
change of name for the Company and a copy thereof in
respect of its Affiliate. The common seal, if any,
and the updated statutory books of the Affiliate of
the Company shall be delivered at the registered
offices of each such company.
(2) Share certificates for all shares in the
capital of the Affiliate of the Company issued to the
Company and duly executed share transfers and
declarations of trust by the registered owner in
respect of all those shares that are beneficially
owned by but not registered in the name of the
Company.
(3) An extract from a meeting of the board
of directors of any Seller which is a company
authorising the entering into, execution and delivery
of this Agreement, the Deed of Warranty, the
Disclosure Letter and all other agreements and
documents contemplated by this Agreement and the Deed
of Warranty.
(4) A copy of a letter to the Company from
its auditors resigning their office with effect from
Closing and containing the statement referred to in
section 394 of the Companies Xxx 0000, the original
of the letter having been deposited at the registered
office of the Company. Similar resignation letters
from the auditors of the Company's Affiliate as may
be required by the Buyer.
(5) A letter executed as a deed in the form
of Exhibit I from each director and the secretary of
the Company and its Affiliate, with the exception of
Xxxxx Xxxxx, in each case resigning his or her
respective office (with effect from the end of the
meetings held pursuant to paragraph (ii) below).
(6) The Account and the Management Accounts
(as defined in the Deed of Warranty).
(7) Clear searches in:
(a) the Register of Sasines
against the Landlord of the
Scottish Property; and
(b) the Register of inhibitions
and adjudications against the
Landlord and the Company.
(ii) On Closing the Sellers shall cause:
(1) A board meeting of the Company at which:
8
(a) transfers of the Spider
Ordinary Shares shall be
approved for registration
(subject only to their being
duly stamped);
(b) Xxxxxxx X. Xxxxxxxx and
Xxxxxx X'Xxxxxxx shall be
appointed directors and
secretary of the Company to
take effect at the close of
the meeting; and
(c) all existing mandates shall
be revoked and replaced with
such bank mandates as Buyer
may require.
(2) A board meeting of the Company's
Affiliate at which:
(a) Xxxxxxx X. Xxxxxxxx and
Xxxxxx X'Xxxxxxx shall be
appointed directors and
secretary of the Affiliate to
take effect at the close of
the meeting; and
(b) all existing bank mandates
shall be revoked and replaced
with such bank mandates as
Buyer may require.
(l) Legal Opinion of Sellers' Counsel. Buyer shall have
received a signed legal opinion of Ozannes, counsel to Sellers, in a form
reasonably acceptable to the Buyer.
(m) IP Assignment. Xxxxx Technology Limited and Xxxxxxxx
Xxxxxxxx shall have executed and delivered the IP Assignment attached as Exhibit
J hereto.
(n) Payment for Shares. Buyer shall have received evidence
satisfactory to it that Xxxxx Xxxxx has fully paid for the Spider Ordinary
Shares set forth next to his name in Schedule 1.1 hereof.
(o) Consulting and Service Agreements. The Company shall have
entered into a Consultancy Agreement and a Service Agreement with Xxxxx
Technology Limited and Xxxxx Xxxxx, respectively, in the forms set out in
Exhibits L and M hereto.
(p) Employee Incentive Schemes. The Company shall have adopted
employee incentive schemes having the terms set forth on Exhibit E hereto.
2.2 Conditions of the Sellers' Obligations to Close. The obligations of
the Sellers to close under this Agreement are subject to the following
conditions any of which may be waived by the Sellers in writing at or prior to
Closing:
9
(a) Employee Incentive Schemes. Buyer shall have adopted
employee incentive schemes having the terms set forth on Exhibit E hereto.
(b) Parent Guarantee. The Company and the Sellers shall have
received a Deed of Guarantee from Artesyn Technologies, Inc. in the form of
Exhibit K hereto.
(c) Consulting and Service Agreements. The Company shall have
entered into a Consultancy Agreement and a Service Agreement with Xxxxx
Technology Limited and Xxxxx Xxxxx, respectively, in the forms set out in
Exhibits L and M hereto.
(d) Closing Deliveries. The Sellers shall have received at or
prior to the Closing an extract from a meeting of the board of directors of
Buyer authorising the execution, entry into and delivery of this Agreement, the
Deed of Warranty, the Disclosure Letter and all other documents contemplated by
this Agreement and the Deed of Warranty to which it is a party, together with a
signed opinion of US Counsel to Buyer in a form reasonably acceptable to the
Sellers.
3. Miscellaneous Provisions.
3.1 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same document.
3.2 Amendment. This Agreement may be amended or modified at any time
prior to the Closing Date, but only by a written instrument executed by all of
the parties hereto.
3.3 Entire Agreement. This Agreement (together with the Deed of
Warranty and the other agreements, certificates, instruments and documents
delivered pursuant hereto) constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, oral and written, among the parties hereto with
respect to the subject matter hereof.
3.4 Choice of Law; Consent to Jurisdiction. This Agreement and the
legal relations among the parties hereto shall be governed by and construed in
accordance with the laws of England without regard to principles of conflicts of
laws. The parties hereby consent to the exclusive jurisdiction of the English
courts located in London, England, and irrevocably waive any objection to
proceedings in such courts on the grounds of venue or on the grounds that the
proceedings have been brought in an inconvenient forum.
3.5 Agent for Service of Process.
(a) Each of the Sellers irrevocably appoint Solicitors Xxxx &
Maw at its office from time to time (currently 00 Xxxxxxxxxxx Xxxx, Xxxxxx, XX
0X 6HD) to be its agent for the service of process in England. Each Seller
agrees that any legal process may be effectively served on it in connection with
legal proceedings in England by service on its agent.
10
(b) Buyer irrevocably appoints White & Case (London) Limited
at its London office from time to time (currently 0-00 Xxxxxxxx, Xxxxxx XX0X
0XX) be its agent for the service of process in England. Buyer agrees that any
legal process may be effectively served on it in connection with legal
proceedings in England by service on its agent.
3.6 Service of Process. Any legal process document shall be
deemed to have been duly served if served as set out above and marked if to
Sellers, to the attention of the Company Secretarial Department, Xxxx & Maw or
if to Buyer, to the attention of the Company Secretarial Department, White &
Case (London) Limited (reference PF: RAC 7102976-0004) or at such other address
within England as may be notified in writing and:
(i) left at the specified address; or
(ii) sent to the specified address by first class post.
In the case of legal process left at the specified address, such
document shall be deemed to have been duly served when it is left. In the case
of legal process sent by first class post, such document shall be deemed to have
been served when it is received.
If the agent at any time ceases for any reason to act as such for the
relevant party, such party shall appoint a replacement agent having an address
for service in England and shall notify the other parties of the name and
address of the replacement agent. The provisions of this clause applying to
service on an agent apply equally to service on a replacement agent. A copy of
any document served on an agent shall be copied to all parties to this
Agreement. Failure or delay in so doing shall not prejudice the effectiveness of
service of the legal process.
3.7 Termination. This Agreement may be terminated at any time prior to
the Closing Date by any of the following:
(a) By mutual written agreement of Buyer and the Sellers;
(b) By Buyer or the Sellers, if the Closing has not occurred
by 21 April 2000, upon written notice by such terminating party; provided that
at the time such notice is given a material breach of this Agreement or the Deed
of Warranty by such terminating party shall not be the principal reason for the
Closing's failure to occur;
(c) Subject to the provisions of Clause 3.8 hereof, by Buyer,
by written notice to the Sellers, if there has been a material violation or
breach of any of the Sellers' covenants or agreements made herein or in
connection herewith or if any of the representations, warranties, indemnities or
covenants of the Sellers made in the Deed of Warranty or in connection herewith
are breached or prove to be materially inaccurate or misleading; or
(d) Subject to the provisions of Clause 3.8 hereof, by the
Sellers, by written notice to Buyer, if there has been a material violation or
breach of any of Buyer's covenants or agreements made herein or in connection
herewith.
11
3.8 Effect of Termination. If this Agreement is terminated as provided
in Clause 3.7 hereof, then this Agreement and the Deed of Warranty shall
forthwith terminate and there shall be no liability or obligation on the part of
any party hereto (or any of their respective shareholders, officers, directors
or employees), except based on the agreements contained in Clause 9.2 of the
Deed of Warranty; provided, however, that if Buyer terminates this Agreement
pursuant to Clause 3.7(c) hereof, or the Sellers terminate this Agreement
pursuant to Clause 3.7(d) hereof, the non-terminating party shall remain liable
for any breach hereof to the extent of the non-breaching party's actual losses
which shall not include loss of profits or consequential losses.
3.9 Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
3.10 Assignment. This Agreement may not be assigned by any Seller or
the Buyer without the prior written consent of Buyer or Sellers respectively.
3.11 Binding Effect; Benefits. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto and their respective heirs, legal representatives, successors
and permitted assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
3.12 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
3.13 Further Assurances. The Sellers shall perform or procure the
performance of all acts, and execute or procure the execution of all documents
in form and substance satisfactory to Buyer, as Buyer may reasonably request
from time to time in order to give full effect to this Agreement and the Deed of
Warranty and secure to the Buyer the full benefit of rights, powers and remedies
conferred upon the Buyer in this Agreement and the Deed of Warranty.
3.14 Set-Off. Buyer shall be entitled to set-off against any amounts
due or to become due hereunder from the Buyer to the Sellers any bona fide claim
Buyer may have against Sellers hereunder or under the Deed of Warranty;
provided, that (a) the Buyer shall first have received the opinion of Counsel of
at least ten years standing that there is a reasonable prospect of the claim
against the Sellers succeeding, and in the opinion of such Counsel the amount of
such set-off is reasonable in light of the claim and the amount so set-off may
be set-off only so long as Buyer shall be diligently pursuing such claim against
Sellers and (b) in the event that the actual amount due to the Buyer in respect
of such claim shall be less than the amount of the set-off, Buyer shall promptly
pay the difference, together with interest thereon from the date
12
originally due at the per annum rate of 2 per cent. above the base lending rate
of The Royal Bank of Scotland plc.
3.15 Notices. All notices and other communications hereunder shall be
given as set forth in Clause 9.4 of the Deed of Warranty.
3.16 Certain Waivers. In the event that the Sellers shall identify to
Buyer in writing any breach hereunder or under the Deed of Warranty as a result
of which the conditions set forth in Subclauses 2.1(b) and/or (c) hereof cannot
be satisfied, Buyer may waive satisfaction of such conditions only if it shall
simultaneously waive its rights hereunder and/or under the Deed of Warranty, as
the case may be, with respect to such breach unless the Buyer and Sellers shall
otherwise agree.
13
IN WITNESS WHEREOF, the parties hereto have executed this Share
Purchase Offer Agreement the day and year first above written.
ARTESYN COMMUNICATION PRODUCTS UK LIMITED
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxxx
Director
SELLERS:
ZOZMA INVESTMENTS LIMITED
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxxx Xxxxxxxx
Chairman
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
14
