SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (date of earliest event reported):
June 25, 1996
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DATAPOINT CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-7636 74-1605174
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(Commission File No.) (I.R.S. Employer
Identification No.)
5-7 rue Montalivet 75008, Paris, France
8400 Datapoint Drive, San Antonio, Texas 78229-8500
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(Address of Principal Executive Offices) (Zip Code)
(33-1) 40 07 37 37
(210) 593-7000
--------------
(Registrant's telephone number, including area code)
not applicable
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(Former Name of Former Address, if Changed Since Last Report)
Page 1 of 126 Pages
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Item 2. Acquisition or Disposition of Assets.
------------------------------------
(a) On June 25, 1996 (the "Closing Date"), Datapoint Corporation, a
Delaware corporation (the "Registrant") completed the sale of substantially all
of the assets representing the Registrant's European Automotive Dealer
Management Systems. Registrant reported the sale in a press release on June 25,
1996, a copy of which is attached hereto as Exhibit 1. Such sale was completed
pursuant to the terms of the Umbrella Acquisition Agreement dated as of May 29,
1996 (the "Umbrella Acquisition Agreement"), a copy of which is attached hereto
as Exhibit 2 and incorporated herein by reference, between the Registrant,
Kalamazoo Computer Group plc, Company No. 100591, (a company organized under the
laws of England) and Kalamazoo Investment plc, Company No. 3156697 (a company
organized under the laws of England) (together "Kalamazoo") and pursuant to the
terms of the acquisition agreements (the "Acquisition Agreements") and Agreement
for the sale of "DARTS" Software referred to immediately below. A copy of the
form of Acquisition Agreement entered into by certain of the Registrant's
subsidiaries is attached hereto as Exhibit 3 and incorporated herein by
reference.
Pursuant to the terms of the Umbrella Acquisition Agreement, on May 29,
1996, each of Datapoint Belgium N.V., Datapoint Deutschland GmbH, Datapoint
Iberica S.A., Datapoint Nederland B.V., Datapoint (Schweiz) Ltd. and Datapoint
Svenska AB, all of which are wholly-owned subsidiaries of the Registrant (each
of the foregoing together with Datapoint S.A. are sometimes referred to herein
individually as a "Subsidiary" and collectively as the "Subsidiaries"), entered
into an Agreement with Kalamazoo Investment plc or one of its subsidiaries (the
"Purchaser") for the sale and purchase of part of the business and assets of
such Subsidiary to the Purchaser. Also on May 29, 1996, the Registrant, the
Subsidiaries and Kalamazoo entered into an Agreement for the Sale of "DARTS"
Software (the "Darts Transfer Agreement"), a copy of which is attached hereto as
Exhibit 4 and incorporated herein by reference, pursuant to which the Registrant
and the Subsidiaries agreed to transfer to Kalamazoo and certain of its
subsidiaries all right, title and interest in and to the application software
programs comprising the system for use in automobile dealerships and presently
known as "DARTS", together with the associated documentation, materials and
intellectual property rights related thereto. Except as set forth below or as
more particularly described in the agreements attached hereto as exhibits and
incorporated herein by this reference, all of the transactions contemplated by
the
Page 2 of 126 Pages
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Acquisition Agreements and the Darts Transfer Agreement were consummated on the
Closing Date.
On the Closing Date, Datapoint S.A., a subsidiary of the Registrant
organized in France, entered into an Acquisition Agreement with a subsidiary of
Kalamazoo Computer Group plc. As of the date of this filing, the proceeds of
the sale of assets in Belgium are being held in escrow pending the release of
certain security interests in such assets. The sale of the assets by Datapoint
S.A. in France is currently in the process of being approved by a French
tribunal. Both sales are expected to be consummated no later than July 15,
1996.
The aggregate purchase price for the assets acquired from the Registrant
and the Subsidiaries was approximately $33,000,000, which includes the amounts
payable with respect to the sales by Datapoint Belguim S.A. and Datapoint S.A.
and is before giving effect to certain amounts placed in escrow as provided in
the Acquisition Agreements. The aggregate purchase price was determined based
upon arms length negotiations among the parties.
Item 7. Financial Statements, Proforma Financial Information and Exhibits.
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(b) Pro Forma Financial Information.
-------------------------------
It is impracticable to provide the pro forma financial information required
under Item 7(b) as of the required filing date of this Form 8-K. Such required
pro forma financial information will be filed under cover of Form 8-K/A as soon
as practicable following the completion or termination of the sales in Belgium
and France.
Page 3 of 126 Pages
<PAGE>
(c) Exhibits.
--------
Sequentially
Exhibit Numbered
Number Exhibit Title Page
- ------- ------------- -----------
1. Press Release issued by the Registrant on
June 25, 1996.
2. Umbrella Acquisition Agreement dated as of May 29, 1996
between Kalamazoo Computer Group plc. and Kalamazoo
Investment plc. and Datapoint Corporation.
3. Form of Agreement for the sale and purchase of part of the
business and assets of [Datapoint Group Vendor] dated as of
May 29, 1996 between Datapoint Group Vendor and Kalamazoo
Investment plc.
4. Agreement for sale of "DARTS" Software dated as of May 29,
1996 between Datapoint Corporation, Datapoint Deutschland
Gmbh, Datapoint Belgium S.A., Datapoint Nederland B.V.,
Datapoint Iberica S.A., Datapoint (Schweiz) Ltd. and
Datapoint Svenska AB and Kalamazoo Computer Group plc. and
Kalamazoo Investment plc.
Page 4 of 126 Pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 10, 1996
DATAPOINT CORPORATION
(Registrant)
By:
------------------------
Gerald N. Agranoff
General Counsel and
Secretary
Page 5 of 126 Pages
<PAGE>
Exhibit Index
-------------
Sequentially
Exhibit Numbered
Number Exhibit Title Page
- -------- ------------- ----------
1. Press Release issued by the Registrant on 7
June 25, 1996.
2. Umbrella Acquisition Agreement dated as 10
of May 29, 1996 between Kalamazoo
Computer Group plc. and Kalamazoo
Investment plc. and Datapoint Corporation
3. Form of Agreement for the sale and purchase 43
of part of the business and assets
of [Datapoint Group Vendor] dated as of
May 29, 1996 between Datapoint Group
Vendor and Kalamazoo Investment plc
4. Agreement for sale of "DARTS" Software 87
dated as of May 29, 1996 between Datapoint
Corporation, Datapoint Deutschland Gmbh,
Datapoint Belgium S.A., Datapoint Nederland
B.V., Datapoint Iberica S.A., Datapoint
(Schmeia) Ltd. and Datapoint Svenska AB and
Kalamazoo Computer Group plc. and Kalamazoo
Investment plc.
Page 6 of 126 Pages
Exhibit 1
News Release
Datapoint Corporation, 8400 Datapoint Drive, San Antonio, Texas 78229-8500
FOR IMMEDIATE RELEASE Contact: Blake Thomas
Chief Operating Officer
331.40.07.37.01
Philip P. Krumb
Chief Financial Officer
210.593.7901
DATAPOINT CORPORATION ANNOUNCES SALE OF
EUROPEAN AUTOMOTIVE DEALER NETWORK
San Antonio, Texas/Paris, France - June 25, 1996...Datapoint
Corporation (NYSE:DPT) announced today that it has consummated the sale to
Kalamazoo Computer Group, plc, an English public limited company, of Datapoint's
European Automotive Dealer Management Systems division. From the sales
proceeds, including the sale of its French and Belgium operations expected to
close within 30 days, Datapoint expects to realize approximately $29.5 million
(net of transaction related expenses and adjustments). Under the terms of the
sale, Datapoint will continue to provide computer hardware service to the
network through a subcontract arrangement with Kalamazoo.
Sales proceeds will be applied, in part, as follows: $2.857 million to
pay the June 1, 1996 interest payment on Datapoint's 8-7/8% Convertible
Subordinated Debentures due 2006, $2.2 million to Northern Telecom, Inc.,
representing the two deferred principal payments on the secured debt which were
due in December 1994 and December 1995 and accrued and unpaid interest,
<PAGE>
and $850,000 to satisfy and discharge in full the outstanding senior secured
indebtedness owing to the CIT Group/Credit Finance. The balance of the proceeds
will be utilized by Datapoint for working capital purposes and to pay other
obligations of the Company. This may include, from time to time, repurchasing
in the public market or in privately negotiated transactions the 8-7/8%
Convertible Debentures or to otherwise reduce existing debt owed by the Company
to its credit groups.
Datapoint is continuing to explore the sale, on a selected basis, of
certain operations in order to strengthen its financial position. As previously
announced, Datapoint expects to present to its stockholders an exchange offer to
exchange the outstanding Preferred Stock into Common Stock. Such a measure
which would eliminate accrued and unpaid as well as ongoing dividend
requirements, will be a further step in strengthening the financial position of
the Company.
Separately, Datapoint announced that a contract that is had entered
into to sell, for approximately $4 million net of first mortgage obligations,
the three buildings which Datapoint owns in San Antonio, Texas, has been
terminated. The Company has contacted other interested parties and will
continue to offer for sale these properties.
Datapoint, a leading supplier of automotive dealer applications,
network information technology, telebusiness and desktop video conferencing
solutions, markets it products and
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services in 49 countries worldwide.
###
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Exhibit 2
Private & Confidential
DATED 1996
---------------------------------------------
KALAMAZOO COMPUTER GROUP PLC (1)
AND
KALAMAZOO INVESTMENT PLC (2)
AND
DATAPOINT CORPORATION (3)
-----------------------------
UMBRELLA ACQUISITION AGREEMENT
relating to the acquisition of the European
DMS business of the Datapoint Corporation group of companies
-----------------------------
WRAGGE & CO
<PAGE>
CONTENTS
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HEADING PAGE
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CLAUSE
1 Definitions and interpretation . . . . . . . . . . . . . . . . . . 2
2 Conditions precedent . . . . . . . . . . . . . . . . . . . . . . . 8
3 Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4 Escrow Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 11
5 Set-off of Net Asset Value differences . . . . . . . . . . . . . . 12
6 Warranties and Limitations . . . . . . . . . . . . . . . . . . . . 12
7 Restrictive covenants . . . . . . . . . . . . . . . . . . . . . . 17
8 Guarantee and Indemnity . . . . . . . . . . . . . . . . . . . . . 19
9 Assignability . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10 Remedies to be cumulative . . . . . . . . . . . . . . . . . . . . 21
11 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12 Further assurance . . . . . . . . . . . . . . . . . . . . . . . . 22
13 Announcements and circulars . . . . . . . . . . . . . . . . . . . 22
14 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16 Choice of law, submission to jurisdiction and address for
service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
<PAGE>
SCHEDULE
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Part 1
Datapoint Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 26
Part 2
Kalamazoo Warranties . . . . . . . . . . . . . . . . . . . . . . . . 28
2 Parties to Acquisition Agreements . . . . . . . . . . . . . . . . 30
AGREED FORM DOCUMENTS
Acquisition Agreements
Business Plan
Hardware Maintenance Agreement
RMS Software Licence Agreement
Spanish Tax Indemnity
Swedish Management Agreement
The Replies
Darts Transfer Agreement
Notice of Meeting
French Application
Joint Instruction Letters
<PAGE>
THIS AGREEMENT is dated 1996 and is made BETWEEN:
(1) KALAMAZOO COMPUTER GROUP PLC (No. 100591) (a company incorporated
under the laws of England) whose registered office is at Mill Lane,
Northfield, Birmingham, B31 2RW ("THE GUARANTOR");
(2) KALAMAZOO INVESTMENT PLC (No. 3156697) (a company incorporated under
the laws of England) whose registered office is at Mill Lane,
Northfield, Birmingham, B31 2RW ("KALAMAZOO"); and
(3) DATAPOINT CORPORATION (a company incorporated under the laws of
Delaware, U.S.A.) whose principal office is at 8400 Datapoint Drive,
San Antonio, Texas 78229-8500 U.S.A. ("DATAPOINT").
WHEREAS:
(A) Datapoint and the Datapoint Vendors have agreed to sell and the
Kalamazoo Purchasers have agreed to purchase the business and assets
specified in the Acquisition Agreements to which they will
respectively be parties;
(B) Prior to the date hereof Datapoint has informed Kalamazoo that it has
transferred all rights in the Darts software in Germany to Datapoint
Deutschland GmbH (but has withheld all other details of this
transaction) and Datapoint (in so far as it is able) and each of the
Datapoint Vendors have agreed to transfer title to the Darts software
to Kalamazoo (or to a subsidiary of it) pursuant to the Darts Transfer
Agreement;
(C) Datapoint has agreed to enter into the RMS Software Licence Agreement
Datapoint and Kalamazoo have agreed, inter alia, to enter into the
Hardware Maintenance Agreement and Datapoint Svenska AB (a Datapoint
subsidiary) and Kalamazoo have agreed to enter into the Swedish
Management Agreement;
(D) The Guarantor has agreed to guarantee the performance by Kalamazoo of
its obligations under this Agreement and the performance by the
Kalamazoo Purchasers of their obligations under the Acquisition
Agreements on the terms set out below; and
(E) Datapoint has agreed to guarantee the performance by the Datapoint
Vendors of their respective obligations under the Acquisition
Agreements, the Hardware Maintenance Agreement, the RMS Software
Licence Agreement, the Darts Transfer Agreement, the Swedish
Management Agreement and the Spanish Tax Indemnity on the terms set
out below.
NOW IT IS HEREBY AGREED as follows:
1
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1 DEFINITIONS AND INTERPRETATION
------------------------------
1.1 In this Agreement unless the context otherwise requires:
(a) the following expressions have the following meanings:
"THE ACQUISITION AGREEMENTS" means the agreements in the agreed form
to be entered into between those parties named in schedule 2 pursuant
to which the Datapoint Vendors will transfer the Business (and, except
in Sweden, the assets relating thereto) as carried on by them in the
Territory to the Kalamazoo Purchasers;
"AUTOLINE" means the products and services currently marketed by the
Vendor under the brand name "Autoline"
"THE BUSINESS" means within the Territory and as now carried on by
Datapoint and the Datapoint Vendors:
(a) the sale of computer hardware systems, and the licence of
operating and communications systems and software applications
products, in relation to automotive dealer management systems
(other than in relation to Autoline);
(b) the provision of ongoing software support services, including
help desk and hot-line support, and computer hardware
maintenance services in relation to Darts and Darts Central
automotive dealer management systems (but for the avoidance of
doubt, not in relation to Autoline or computer hardware
maintenance services in the United Kingdom and the Republic of
Ireland); and
(c) the systems, software and related services to enable the
provision of communications services between Ford dealers and
Ford Motor Company of Europe through the Darts Central
operations;
"BUSINESS DAY" means a day on which banks are open for normal banking
business in the City of London and New York (excluding Saturdays) and
"Business Days" shall be construed accordingly;
"THE BUSINESS PLAN" means the Business Plan prepared by Kalamazoo in
the agreed form;
"COMPLETION" means the completion of this Agreement by the carrying
out of the matters described in clause 3;
"THE DARTS TRANSFER AGREEMENT" means the agreement transferring the
Darts software from Datapoint and the Datapoint Vendors to Kalamazoo
and the Kalamazoo Purchasers in the agreed form;
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"THE DATAPOINT VENDORS" means those subsidiaries of Datapoint
identified in column (1) of schedule 2;
"THE DATAPOINT WARRANTIES" means the representations and warranties
made and given pursuant to clause 6.1(a):
"DISCLOSURE DOCUMENTS" means the Disclosure Letter and the Replies;
"DISCLOSURE LETTER" means a letter of even date from Linklaters &
Paines to Wragge & Co specifying qualifications to the Datapoint
Warranties;
"DOLLAR" and "$" means the lawful currency of the United States of
America;
"FRENCH ACQUISITION AGREEMENT" means the Acquisition Agreement between
Datapoint S.A. and Kalamazoo Computer Group S.A. in the agreed form;
"FRENCH APPLICATION" means the application to the tribunal in Paris to
be made by Datapoint S.A. for consent to enter into the French
Acquisition Agreement in the agreed form;
"GROUP" means in relation to any company, that company and any company
which is a holding company or subsidiary of that company and any
subsidiary of any such holding company and for the purposes of this
Agreement "subsidiary" and "holding company" have the meanings
ascribed thereto by sections 736 and 736A Companies Act 1985;
"THE HARDWARE MAINTENANCE AGREEMENT" means the agreement between
Datapoint and Kalamazoo whereby the former shall provide sub-
contracted hardware maintenance services to the customers of the
latter and its subsidiaries in the agreed form;
"INSOLVENCY EVENT" means, in respect of any company, that such company
has ceased to trade or:
(a) (in England) has had a receiver, administrative receiver,
administrator or manager appointed over the whole or a
substantial part of its assets or enters into any composition
or arrangement with its creditors, or an order made or
resolution passed for its liquidation (unless such liquidation
is for the purposes of a solvent reconstruction or
amalgamation); or
(b) (in the United States of America) has (i) commenced a voluntary
case under any applicable bankruptcy, insolvency, dissolution,
liquidation or other similar law, whether state or federal, now
or hereafter in effect, (ii) an involuntary case of
3
<PAGE>
the type described in subparagraph (i) herein commenced against
it which is not discharged or remains unstayed, (iii) an order,
judgment or decree of a court appointing a receiver,
liquidator, sequestrator, trustee, custodian or other officer
having similar powers, whether on an interim or permanent basis
or otherwise, over the company or over all or a substantial
part of its assets entered with respect to it, (iv) an order,
judgment, decree or warrant of attachment, execution or similar
process issued with respect to a substantial part its assets,
(v) an order, judgment or decree entered against it ordering
its involuntary dissolution, (vi) made an assignment for the
benefit of creditors, or (vii) resolved, through its Board of
Directors or otherwise, to consent to or approve any of the
foregoing; or
(c) (in Spain) has applied to a Court to be declared in suspension
of payments (suspension de pagos) or either itself or any of
its creditors has requested to be declared in bankruptcy
(quiebra), or it has ceased to make payments generally to its
creditors, or it has fallen under any type of administrative or
Court administration, or has started any negotiations with its
creditors with a view to the general readjustment or
rescheduling of its indebtedness or makes a general assignment
of its assets for the benefit of or a composition with its
creditors, or a significative portion of its assets is subject
to attachment (embargo);
(d) (in France, other than in relation to Datapoint S.A.) (i) has
stopped payment or is insolvent or is unable to pay its due
debts with its liquid assets (etat de cessation des paiements);
(ii) is in the process of being wound up or liquidated or is
subject to any insolvency procedure such as an alert procedure
(procedure d'alerte), an amicable settlement or composition
with creditors (reglement amiable) or court administration
(administration judiciaire) in respect of all or any part of
its assets or activities; or (iii) no steps have been taken by
the company, any creditor or the Procureur de la Republique,
for the appointment of a conciliator (conciliateur), an
administrator (administrateur judiciaire) or a liquidator
(liquidateur) in relation to any proceeding in relation
thereto;
(e) (in the Netherlands) (i) is in a situation where it has stopped
payments as defined in article 1 of the Dutch Bankruptcy Act
(Faillissementswet); (ii) resolves, through its Board of
Managing Directors or otherwise, to file a request to be
declared in a state of bankruptcy (faillissement) as defined in
article 1 of the Dutch Bankruptcy Act or files such a request
or has such a request filed by a third party with respect to
it; (iii) resolves, through its Board of Managing Directors or
otherwise, to file a request for moratorium of payments
(surseance van betaling) as defined in article 213 of the Dutch
Bankruptcy Act or files such a request; (iv) has a substantial
part of its assets attached by way of conservatory attachment
(conservatoir beslag) or attachment in execution (executoriaal
beslag); (v) in case of an event leading to
4
<PAGE>
liquidation (ontbinding) of that company (such as the events
enumerated in articles 19 and 19a of Book 2 of the Dutch Civil
Code (Boek 2 Burgerlijk Wetboek); (vi) the filing of a request
for or the commencing of proceedings for the liquidation of
that company; or (vii) resolves, through its Board of Managing
Directors or otherwise, to consent to or approve any of the
foregoing;
(f) (in Germany) (i) its shareholders have resolved the liquidation
of the company; (ii) the company or its shareholders have
resolved to apply for the opening of bankruptcy or composition
proceedings in relation to the company, or an application for
the opening of bankruptcy or composition proceedings has been
filed with the Insolvency Court in relation to the company by
creditors or other third parties, which is discharged
(Konkurseroffnung abgelehnt) for reason of lack of assets or
which is not discharged or remains unstayed for a period of 30
days or which results in the appointment of a sequestrator or
administrator in relation to the company; (iii) an attachment
order has been issued with respect to a substantial part of the
company's assets; or (iv) an order has been entered into
against the company ordering its involuntary deletion from the
Commercial Register;
(g) (in Belgium) (i) has filed for or has been put into bankruptcy
(faillite or faillissement), (ii) or an order has been made or
a resolution has been passed for its liquidation (liquidation
or vereffening) or dissolution, or (iii) has entered into an
arrangement or reorganisation plan with its creditors, whether
with or without abandoning its assets (including by way of
example only, the concordat judiciaire avec ou sans cession de
biens or gerechtelijk akkord met of zonder boedelafstand), or
(iv) in the case of an appointment of a sequester, ad hoc
administrator or other custodian over a substantial part of its
assets, or (v) in the event of an attachment and seizure, the
foreclosure of a mortgage or pledge over a substantial part of
its assets, or (vi) in the event of cessation of payments to
creditors;
(h) (in Switzerland) (i) is in a situation of overindebtedness and
has or should have notified the judge pursuant to Art. 725 of
the Swiss Code of Obligations, (ii) is subject to bankruptcy
proceedings under the Swiss Debt Collection and Bankruptcy Act
of April 11, 1889 or (iii) enters into any agreement with all
or some of its creditors, whether in connection with pending
bankruptcy proceedings or in the absence of any such
proceedings, in view of the avoidance or suspension of such
proceedings; and
(i) (in Sweden) (i) declared a suspension of payments, (ii) entered
into negotiations concerning voluntary composition with its
creditors, (iii) filed for the appointment of an administrator
under the Composition Act (1970:847), (iv)
5
<PAGE>
filed for bankruptcy or has been declared bankrupt in
accordance with the Bankruptcy Act (1987:672), or (v) passed a
resolution or has had an order passed for its liquidation.
In this definition of Insolvency Event the expression "substantial
part of its assets" shall mean in respect of any company either (i)
more than 50% in value of the relevant company's assets or (ii) any
assets constituting at least 25% of the assets of the relevant company
transferred or to be transferred pursuant to the Acquisition
Agreements or the Darts Transfer Agreement;
"JOINT INSTRUCTION LETTERS" means the joint letters of instruction
from Datapoint and Datapoint Deutschland GmbH on the one hand and
Kalamazoo and the Guarantor on the other to Wragge & Co and Linklaters
& Paines in the agreed form;
"KALAMAZOO PURCHASERS" means Kalamazoo or those subsidiaries of
Kalamazoo identified in column (2) of schedule 2;
"KALAMAZOO WARRANTIES" means the representations and warranties made
and given pursuant to clause 6.1(b);
"THE NOTICE OF MEETING" means the draft notice of extraordinary
general meeting of the Guarantor in the agreed form;
"THE PARTIES" means the parties to this Agreement and "PARTY" means
any of them;
"THE PLACING AGREEMENT" means the placing agreement to be entered into
between, inter alia, KPMG Corporate Finance, Albert E. Sharp and the
Guarantor on today's date;
"THE REPLIES" means the documents and other information supplied by or
on behalf of Datapoint in response to enquiries raised by Kalamazoo as
more particularly identified in the indexes of that delivered in the
agreed form;
"RESTRICTED PRODUCT TRANSACTIONS" means the production, distribution,
sale or supply of computer software products (other than of Autoline
to third party customers of the Datapoint Group existing at today's
date who operate or use
6
<PAGE>
Autoline) to automobile dealerships and the manufacture, production,
distribution, sale or supply of computer hardware and consumable items
(but not the provision of maintenance services or supply of consumable
items in connection with computer hardware maintenance services) to
Ford automobile dealerships;
"THE RESTRICTED SERVICES" means the supply installation and support of
software products implemented in automotive dealer management systems
(other than of Autoline to third party customers of the Datapoint
Group existing at today's date who operate or use Autoline) including
without limitation the supply, installation and support of the Darts
user base within Ford dealerships and Darts Central and the
relationship with IBM for DCAS in Germany (but for the avoidance of
doubt, not computer hardware maintenance services in the United
Kingdom and the Republic of Ireland);
"RMS SOFTWARE LICENCE AGREEMENT" means the software licence and escrow
agreement to be granted by Datapoint to Kalamazoo on Completion
relating to the RMS operating system in the agreed form;
"SPANISH TAX INDEMNITY" means the indemnity relating to Spanish
taxation proposed to be entered into by Datapoint and Kalamazoo
Computer Group S.L. in the agreed form;
"SWEDISH MANAGEMENT AGREEMENT" means the management agreement to be
entered into between Datapoint Svenska AB and Kalamazoo relating to
the management of the latter's business in Sweden in the agreed form;
"TAXATION" means all forms of taxation whether direct or indirect and
whether levied by reference to income, profits, gains, net wealth,
asset values, turnover, added value or other reference and statutory,
governmental, state, provincial, local governmental or municipal
impositions, duties, contributions, rates and levies (including
without limitation social security contributions and any other payroll
taxes), whenever and wherever imposed (whether imposed by way of a
withholding or deduction for or on account of tax or otherwise) and in
respect of any person and all penalties, charges, costs and interest
relating thereto;
"THE TERRITORY" means the territories of the United Kingdom and the
Republic of Ireland and on the European continent of Andorra, Austria,
Belgium, Germany, Gibraltar, Italy, Liechtenstein, Luxembourg, Monaco,
the Netherlands, Spain, Sweden and Switzerland Denmark, Norway,
Portugal and, if (and only if) completion of the French Acquisition
Agreement occurs, France;
"WARRANTIES" means the Datapoint Warranties and/or the Kalamazoo
Warranties as the context requires;
"THE WARRANTOR" means Datapoint or Kalamazoo as the context requires;
(b) any document expressed to be "IN THE AGREED FORM" means a
document in a form approved by (and for the purpose of
identification signed by or on behalf of) the Parties;
(c) references:
(i) to clauses and the schedules are unless otherwise stated to
clauses of and the schedules to this Agreement; and
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(ii) to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, Court,
official or any legal concept or thing shall in respect of any
jurisdiction other than England be deemed to include what most
nearly approximates in that jurisdiction to the English legal
term;
(d) references to any enactment (meaning any statute or statutory
provision, whether of the United Kingdom or elsewhere,
subordinate legislation (as defined by section 2(1)
Interpretation Act 1978) and any other subordinate legislation
made under any such statute or statutory provision) shall be
construed as references to:
(i) any enactment which that enactment has directly or indirectly
replaced (whether with or without notification); and
(ii) that enactment as re-enacted, replaced or modified from time to
time, whether before, on or after the date hereof.
(e) words importing the singular include the plural and vice versa,
words importing a gender include every gender and references to
persons include bodies corporate or unincorporate;
(f) the headings to the clauses and the schedules are for
convenience only and shall not affect the construction or
interpretation of this Agreement; and
(g) the Interpretation Act 1978 shall apply in the same way as it
applies to an enactment.
2 CONDITIONS PRECEDENT
--------------------
2.1 This Agreement (other than the provisions of clauses 2.2, 2.3, 8, 9,
11, 13, 14, 15 and 16) is conditional on:
(a) the passing at an Extraordinary General Meeting of the
Guarantor of all of the resolutions set out in the Notice of
Meeting;
(b) all conditions to completion of the Placing Agreement (other
than any conditions relating to completion of this Agreement)
having been fulfilled or waived in accordance with their terms;
(c) the consent of each of Ford Motor Company, Inc. and relevant
members of its Group and International Business Machines
Corporation and relevant members of its Group to the
transactions contained and referred to herein;
(d) the entering into of the Acquisition Agreements (other than the
French Acquisition Agreement) and all conditions to completion
thereof (other than any conditions relating to completion of
this Agreement) having been fulfilled or waived in accordance
with their terms;
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(e) the entering into of the Darts Transfer Agreement and all
conditions to completion thereof (other than any conditions
relating to completion of this Agreement) having been fulfilled
or waived in accordance with their terms;
(f) the entering into and completion of the Hardware Maintenance
Agreement, the RMS Software Licence Agreement and the Swedish
Management Agreement;
(g) no matter coming to Kalamazoo's attention after the date hereof
which, after proper investigation by Kalamazoo, gives Kalamazoo
good reason to be concerned that an Insolvency Event in
relation to Datapoint or any of the Datapoint Vendors (other
than Datapoint S.A.) is likely to occur within 90 days
following Completion (Kalamazoo agreeing to decide whether to
rely on this clause as soon as possible following it becoming
aware of the matter in question);
(h) no Insolvency Event having occurred and continuing in relation
to Datapoint or any of the Datapoint Vendors (other than
Datapoint S.A.);
(i) no Insolvency Event having occurred and continuing in relation
to the Guarantor, Kalamazoo or any of the Kalamazoo Purchasers;
(j) no matter coming to Datapoint's attention after the date hereof
which, after proper investigation by Datapoint, gives Datapoint
good reason to be concerned that an Insolvency Event in
relation to the Guarantor, Kalamazoo or any of the Kalamazoo
Purchasers is likely to occur within 90 days following
Completion (Datapoint agreeing to decide whether to rely on
this clause as soon as possible following it becoming aware of
the matter in question).
2.2 If all such conditions are not:
(a) fulfilled; or
(b) (in the case of the conditions in clauses 2.1(b) to 2.1(h)
inclusive) waived by Kalamazoo (provided that the condition in
clause 2.1(g) shall be deemed to be waived by Kalamazoo in the
event that Completion does not take place on or before 25th
June 1996 except as a result of the non-fulfilment of the
conditions in clause 2.1(c) or (by reason of a breach of clause
2.3 (a) or (c) by Datapoint) clauses 2.1(d), 2.1(e) or 2.1(f));
or
(c) (in the case of the conditions in clauses 2.1(i) and 2.1(j))
waived by Datapoint (provided that the condition in
clause 2.1(j) shall be deemed to be waived by Datapoint in the
event that Completion does not take place on or before 25th
June 1996 except as a result of the non-fulfilment of the
conditions in clauses 2.1(d), 2.1(c) or 2.1(f) by reason of a
breach of
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clauses 2.3(b) or (c) by Kalamazoo)
in each case by 25th June 1996 (or such later date as the Parties may
agree) then the provisions of this Agreement (with the exception of those
set out in this clause 2.2 and in clauses 2.3, 8, 9, 11, 13, 14, 15 and
16) shall forthwith terminate and cease to be of effect and, save as
aforesaid, no Party shall have any claim against the others for any
breach of this Agreement except with respect to any such breach occurring
prior to such termination.
2.3 (a)
Datapoint shall use its best endeavours to perform and procure
that each member of its Group performs all obligations on the
part of Datapoint and its Group necessary to procure the
fulfilment of the conditions in clauses 2.1(c), 2.1(d), 2.1(e)
and 2.1(f).
(b) Kalamazoo shall use its best endeavours to perform and procure
that such member of its Group performs all obligations on the
part of Kalamazoo and its Group necessary to procure the
fulfilment of the conditions in clause 2.1(d), (e) and (f) in
all cases by 25th June 1996.
(c) Both Datapoint and Kalamazoo shall use their best endeavours to
perform and procure that each member of their respective Groups
perform all obligations necessary on their respective parts to
procure the fulfilment of the conditions to completion of the
French Acquisition Agreement following Completion and by 31
August 1996 (or such later date as the Parties may agree) and
without placing on Kalamazoo the obligation to pay any amount
greater than US$ 1,500,000. If such conditions are not
fulfilled (or waived in accordance with their terms) by such
date, clause 4 shall apply; and
(d) Datapoint shall procure that the French Application is
submitted to the relevant tribunal after Completion and within
two Business Day's of Kalamazoo's written request to Datapoint
referring to this clause and that all requests of such tribunal
or the administrator appointed by such tribunal in relation to
Datapoint S.A. are acted upon fully and promptly.
3 COMPLETION
----------
3.1 Completion shall occur within two Business Days at the offices of De
Brauw Blackstone Westbroek in Amsterdam upon the fulfilment (or
waiver) of the last of the conditions contained in clause 2 whereupon
the Parties shall procure that the matters and events referred to in
the Acquisition Agreements (other than the French Acquisition
Agreement) and the Darts Transfer Agreement as required to occur on
completion thereof shall take place or have taken place and continue
to subsist.
4 ESCROW ACCOUNTS
---------------
4.1 In addition to the sums payable under the Darts Transfer Agreement and
the Acquisition
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Agreements (other than the French Acquisition Agreement), Kalamazoo
shall pay the sum of of $1,500,000 which shall be held in escrow as
security for the consideration payable by the relevant Kalamazoo
Purchaser under the French Acquisition Agreement and the parties shall
procure that so much of that sum as is required to satisfy such
consideration in full is paid to the administrator of Datapoint S.A.
(or as he may direct) promptly following the entering into of the
French Acquisition Agreement and on satisfaction of the final
condition to its completion ("ESCROW FUND 1").
4.2 The sum of $1,500,000 shall be retained from the amounts payable to
the Datapoint Vendors under the DARTS Transfer Agreement (pro rata
from the respective considerations payable to each of them thereunder)
and shall be held in escrow as security for Datapoint's obligation
under clause 8.11 hereof, for the purposes of clause 4.4 hereof and
the obligations of each Datapoint Vendor under the provisions of each
Acquisition Agreement relating to the adjustment of the consideration
payable thereunder on the determination of Net Asset Value in each of
the Acquisition Agreements and the obligations of Datapoint
Deutschland GmbH under clause 5.2 of the Acquisition Agreement to
which it is a party and shall be paid to Kalamazoo or the relevant
Kalamazoo Purchaser (as the case may be) promptly following any
determination of a liability to pay of Datapoint or the relevant
Datapoint Vendors as aforesaid ("ESCROW FUND 2").
4.3 Any amounts to be applied towards Escrow Fund 1 and Escrow Fund 2 in
the manner prescribed in this clause 4 below shall be paid into a
nominated bank account in the joint names of Linklaters & Paines (for
Datapoint and the Datapoint Vendors) and Wragge & Co (for Kalamazoo,
the Guarantor and the Kalamazoo Purchasers) to be held in accordance
with the terms of the Joint Instruction Letter.
4.4 If the French Acquisition Agreement is not entered into (otherwise
than solely as a result of the relevant Kalamazoo Purchaser's failure
to comply with its obligations) within six months after Completion,
the obligation on Kalamazoo and the Guarantor to procure such shall
lapse and the amounts held in Escrow Fund 1 and Escrow Fund 2 shall be
paid promptly to Kalamazoo.
4.5 If following the completion of the French Acquisition Agreement any
amount remains in Escrow Fund 1 such amount shall be paid promptly to
Datapoint.
4.6 Any amounts not paid to Kalamazoo Purchasers following the conclusion
of the purpose of Escrow Fund 1 and Escrow Fund 2 shall be paid to
Datapoint immediately following the conclusion of the purpose of both
Escrow Funds.
4.7 Any interest earned during the operation of this clause 4 shall follow
the principal.
5 SET-OFF OF NET ASSET VALUE DIFFERENCES
--------------------------------------
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5.1 Kalamazoo (for itself and as trustee for each Kalamazoo Purchaser)
shall be entitled to exercise a right of set-off, withholding or
deduction over all sums held under Escrow Fund 2 against all amounts
due to it and/or each Kalamazoo Purchaser from Datapoint Vendors under
each of the Acquisition Agreements or from Datapoint pursuant to
clause 8.11 below.
6 WARRANTIES AND LIMITATIONS
--------------------------
6.1 Subject to the provisions of this clause 6:
(a) in consideration of Kalamazoo entering into this Agreement and
the Darts Transfer Agreement and procuring that the Kalamazoo
Purchasers enter into, inter alia, the Acquisition Agreements,
Datapoint:
(i) represents and warrants to Kalamazoo in the terms contained in
part 1 of schedule 1; and
(ii) represents and warrants to Kalamazoo that the warranties and
representations made by each Datapoint Vendor to each Kalamazoo
Purchaser under each Acquisition Agreement are true and
accurate in all respects subject to the limitations in such
agreements;
and it is acknowledged and agreed that it is within the contemplation
of the parties that any damages or loss suffered by any Kalamazoo
Purchaser shall constitute damages or loss suffered by Kalamazoo under
the Datapoint Warranties and shall not be limited to or by the value
of the assets acquired or the consideration paid by the relevant
Kalamazoo Purchaser subject always to the provisions of clause 6.9(a);
(b) in consideration of Datapoint entering into this Agreement and
the Darts Transfer Agreement and procuring that the Datapoint
Vendors enter into the Acquisition Agreements, Kalamazoo
represents and warrants to Datapoint in the terms contained in
part 2 of schedule 1.
6.2 Subject to the provisions of this clause 6, all the remedies of
Kalamazoo or Datapoint respectively for any breach of any of the
Warranties shall continue to subsist notwithstanding completion of
this Agreement and any matters pursuant hereto.
6.3 Each of the Warranties shall be construed separately and independently
from the others so that Kalamazoo or Datapoint (as the case may be)
shall have a separate claim and right of action in respect of every
breach of each relevant Warranty.
6.4 In interpreting the Warranties, where a Warranty is given "so far as"
... a Warrantor ..." is aware" (or so far as any other person is
aware) or "to the best of the knowledge and belief
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of" a Warrantor (or of any other person) or with any similar
qualification, such Warranty shall be deemed to include a further
warranty to the effect that the relevant Warrantor has made due,
diligent and careful enquiries to establish the accuracy of the
Warranty in question.
6.5 Datapoint (on behalf of itself and each Datapoint Vendor):
(a) agrees with Kalamazoo to waive any right which it may have
against any employee of the Business for any error, omission or
misrepresentation in the information and opinions given by him
to Datapoint or to Kalamazoo on behalf of Datapoint in
connection with the negotiation and preparation of this
Agreement, the Darts Transfer Agreement, the Acquisition
Agreements or the Disclosure Documents except in the case of
fraud or wilful misconduct by such employee;
(b) acknowledges that any such rights shall not constitute a
defence to any claim by Kalamazoo relating to this Agreement,
the Darts Transfer Agreement or the Acquisition Agreements; and
(c) waives and releases absolutely any right to claim any damages
or contribution from any such employee in respect of any claim
against it by Kalamazoo relating to this Agreement, the Darts
Transfer Agreement or the Acquisition Agreements.
6.6 Datapoint shall not have any liability under the Datapoint Warranties
in respect of any matter to the extent that such matter is disclosed
in or pursuant to in the Disclosure Documents in a manner which would
enable Kalamazoo reasonably to make an informed assessment of the
matter but no other information of which Kalamazoo has (or later
obtains) knowledge (actual implied or constructive) shall prejudice or
affect any claim made by it under the Datapoint Warranties or operate
to reduce any amount recoverable.
6.7 Kalamazoo confirms to Datapoint that Kalamazoo does not have actual
knowledge that it has the ability to make a claim for breach of the
Datapoint Warranties immediately following the coming into effect of
this Agreement.
6.8 A Warrantor ("THE NON-CLAIMANT") shall not be liable under this
Agreement (other than clause 7) to the relevant other party ("THE
CLAIMANT"):
(a) in respect of any claim unless notice of such claim is given in
writing by the Claimant to the Non-Claimant setting out all
reasonable details of the specific matter in respect of which
the claim is made including an estimate of the amount of such
claim, if practicable, by the second anniversary of Completion
(save in the case of the Spanish Tax Indemnity where the
temporal limits therein shall prevail) and any such claim shall
(if it has not been previously satisfied, settled or withdrawn)
be deemed to be withdrawn either six months after such
notification or (in the case of a claim in relation to a
contingent liability) six
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months after it has become an actual liability and is due and
payable, in each case unless legal proceedings in respect of
such claim have been commenced by being both issued and served;
(b) in respect of any claim unless the aggregate amount of all
claims for which the Non-Claimant would otherwise be liable
under this Agreement (in the case of Datapoint when aggregated
with the amount of the liability of all members of Datapoint's
Group for breach of warranties under the Acquisition
Agreements, the Darts Transfer Agreement and the Spanish Tax
Indemnity) exceeds $125,000, in which case the liability of the
Non-Claimant shall be for the whole amount of all such claims
and not merely the excess;
(c) in respect of any liability which is contingent unless and
until such contingent liability becomes an actual liability and
is due and payable (without prejudice to the Claimant's ability
to notify such a liability as a claim within the period
specified in clause 6.8(a));
(d) in respect of any matter, act, omission or circumstance to the
extent that the same would not have occurred but for:
(i) any matter act or thing done or omitted to be done by the Non-
Claimant or any member of the Non-Claimant's Group pursuant to
the Acquisition Agreements or (in the case where Kalamazoo is
the Claimant) any voluntary act, omission or transaction of
Kalamazoo or any member of Kalamazoo's Group or their
respective directors, employees or agents or successors in
title after Completion outside the ordinary course of business
and otherwise than pursuant to a legally binding agreement
subsisting at Completion;
(ii) the passing of, or any change in, after the date of this
Agreement, any law, rule, regulation or administrative practice
of any government, governmental department, agency or
regulatory body including (without prejudice to the generality
of the foregoing) any increase in the rates of Taxation or any
imposition of Taxation or any withdrawal of relief from
Taxation not actually (or prospectively) in effect at the date
of this Agreement;
(iii) (in the case where Kalamazoo is the Claimant) any change in
accounting or Taxation policy, bases or practices of Kalamazoo
or any member of Kalamazoo's Group introduced or having effect
after Completion (except changes implemented to comply with any
legal or regulatory requirement or generally accepted
accounting practice not previously complied with by Datapoint
or the relevant Datapoint Vendor);
(e) in respect of any claim to the extent that any costs, losses,
liabilities and expenses whatsoever arising from such claim are
recovered by the Claimant under a policy of insurance in force
on the date of this Agreement (and the Claimant shall use its
reasonable
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<PAGE>
endeavours to secure such recovery); and
(f) in any respect of any claim for any costs, losses, liabilities
and expenses whatsoever suffered by the Claimant or any member
of the Claimant's Group to the extent of any corresponding
savings by or net benefit to the Claimant or any member of the
Claimant's Group arising directly from the matter giving rise
to that claim.
6.9 Notwithstanding clauses 6.1 to 6.7:
(a) Datapoint shall not be liable for breach of the Datapoint
Warranties or under clause 8 to Kalamazoo in respect of any
claim to the extent that the aggregate amount of its liability
for all claims made for breach of the Datapoint Warranties and
under clause 8 (when aggregated with the amount of the
liability of all members of Datapoint's Group under the Darts
Transfer Agreement, the Acquisition Agreements and the Spanish
Tax Indemnity) would exceed the sum of $33,000,000;
(b) Kalamazoo shall not be liable for breach of the Kalamazoo
Warranties to Datapoint in respect of any claim to the extent
that the aggregate amount of its liability for all claims made
for breach of the Kalamazoo Warranties would exceed $500,000.
6.10
(a) If Kalamazoo or Datapoint becomes aware of any matter that it
is aware may give rise to a claim against the other under this
Agreement it shall give notice of that fact to the other as
soon as reasonably practicable.
(b) Without prejudice to the validity of the claim or alleged claim
in question, the Claimant shall (so far as is reasonable or
reasonably practicable) allow, and (so far as it is able) shall
procure that the members of the Claimant's Group allow, the
Non-Claimant and its accountants and professional advisers to
investigate the matter or circumstance alleged to give rise to
such claim and whether and to what extent any amount is payable
in respect of such claim and for such purpose the Claimant
shall (so far as it is reasonable or reasonably practicable)
give, and shall procure that the relevant members of the
Claimant's Group so give, subject to their being paid all
reasonable costs and expenses, all such information and
assistance, including access to premises and personnel, and the
right to examine and copy or photograph any assets, accounts,
documents and records, as the Non-Claimant or its accountants
or professional advisers may reasonably request.
6.11 If the claim in question is a result of or in connection with a claim
by third party against a member of the Claimant's Group then:
(a) no admission of liability shall be made by or on behalf of any
member of the Claimant's Group and the claim shall not be
compromised, disposed of or settled without the consent of the
Non-Claimant (such consent not to be unreasonably withheld or
delayed); and
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(b) the Claimant shall (so far as possible) keep the Non-Claimant
promptly informed of the progress and conduct of any related
proceedings, negotiations or appeals.
6.12 If a Non-Claimant pays an amount in discharge of any claim under this
Agreement and the Claimant or any member of the Claimant's Group
subsequently recovers (whether by payment, discount, credit, relief or
otherwise) from a third party a sum which is referable to the subject
matter of the claim and which would not otherwise have been received
by the Claimant, the Claimant shall pay, or shall procure that the
relevant member of the Claimant's Group pays, to the Non-Claimant an
amount equal to (i) the sum recovered from the third party less any
costs and expenses incurred by it in obtaining such recovery or (ii)
if less, the amount previously paid by the Non-Claimant to the
Claimant.
6.13 In calculating the liability of the Non-Claimant for any breach of
this Agreement, there shall be taken into account the amount (if any)
by which any Taxation for which the Claimant or any member of the
Claimant's Group would otherwise have been accountable or liable to be
assessed is actually reduced or extinguished as a result of the matter
giving rise to such liability.
6.14 This Agreement contains the whole agreement between the parties
relating to the subject matter of this Agreement at the date hereof to
the exclusion of any terms implied by law which may be excluded by
contract. The Parties acknowledge that they have not been induced to
enter into this Agreement by, and so far as is permitted by law and
except in the case of fraud, hereby waive any remedy in respect of,
any warranties, representations and undertakings not incorporated into
this Agreement.
6.15 So far as is permitted by law and except in the case of fraud, the
Parties agree and acknowledge that the only right and remedy which
shall be available in connection with or arising out of or related to
any of the statements contained in the Warranties shall be damages in
contract for breach of this Agreement and not rescission of this
Agreement, nor damages in tort or under statute (whether under the
Misrepresentation Act 1967 or otherwise), nor any other remedy.
6.16 Each Party to this Agreement confirms it has received independent
legal advice relating to all the matters provided for in this
Agreement, including the provisions of this clause 6, and agrees
having considered the terms of clause 6 and the Agreement as a whole,
.
that the provisions of clause 6 are fair and reasonable.
6.17 In clauses 6.14 to 6.17, "this Agreement" includes all documents
entered into pursuant to this Agreement.
6.18 Kalamazoo and the Kalamazoo Purchasers shall not be entitled to
recover from any one or more of Datapoint and the Datapoint Vendors
more than once in respect of the same damages suffered and,
accordingly, Datapoint and the Datapoint Vendors shall not be
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liable in respect of any breach of this Agreement the Acquisition
Agreements, the Spanish Tax Indemnity or the Darts Transfer Agreement
if and to the extent that any costs, losses, liabilities or expenses
whatsoever are or have been included in another claim under any other
such warranties or agreements which has been satisfied.
7 RESTRICTIVE COVENANTS
---------------------
7.1 Datapoint undertakes and agrees with Kalamazoo and each of the
Kalamazoo Purchasers that Datapoint will not, and will procure that
each of the members of Datapoint's Group will not, whether by itself,
its employees or agents or otherwise howsoever during the period from
today's date until 5 years from the date of Completion ("THE
RESTRICTION PERIOD") directly or indirectly:
(a) be engaged or interested in any capacity (whether for reward or
otherwise) in any business which is or is about to be engaged
in the Restricted Product Transactions or any of them or the
supply of the Restricted Services or any of them in the
Territory; or
(b) in relation to the Restricted Product Transactions or any of
them or the Restricted Services or any of them solicit or
canvass or otherwise deal with any person, firm, company or
other organisation which was a customer of the Business at any
time during the year preceding Completion or which during such
time was in the process of negotiating or contemplating doing
business with the Business in the Territory;
(c) solicit or entice away or endeavour to solicit or entice away
from Kalamazoo or any member of its Group any director or
manager or salesperson employed or otherwise engaged by the
Business at any time during the year preceding Completion,
whether or not such person would commit any breach of his
contract of employment by reason of his leaving service;
(d) employ or otherwise engage any person who was at any time
during the year preceding Completion employed or otherwise
engaged by the Business and who by reason thereof is or is
reasonably likely to be in possession of any confidential
information relating to the Business.
7.2 Datapoint undertakes and agrees with Kalamazoo and each of the
Kalamazoo Purchasers that Datapoint will not, and will procure that
each member of Datapoint's Group will not, at any time following
Completion, whether by itself, its employees or agents or otherwise
howsoever, directly or indirectly:
(a) use, whether for itself or on behalf of any third party, or
divulge to any third party any confidential information
relating to the Business; or
(b) do or permit anything to be done or say anything at any time
which is harmful to the
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reputation of the Business or which is likely to cause any
person to reduce the amount of business transacted between that
person and the Business or seek to change the terms of such
business in a manner adverse to the Business.
7.3 Each of paragraphs (a) to (d) of clause 7.1 and of paragraphs (a) and
(b) of clause 7.2 shall be deemed to constitute a separate agreement
and shall be construed independently of the other paragraphs in the
relevant clause.
7.4 While the Parties consider that the restrictions aforesaid are
reasonable in all the circumstances, it is agreed that if any such
restrictions taken together shall be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the
interests of the relevant Party or Parties but would be adjudged
reasonable if part or parts of the wording thereof were deleted or
amended or qualified or the periods thereof were reduced or the range
of products or area dealt with were thereby reduced in scope, then the
relevant restriction or restrictions shall apply with such
modification or modifications as may be necessary to make it or them
valid and effective.
7.5 No provision of this Agreement or of any agreement or arrangement of
which this Agreement forms part which in any case is of such a nature
as to make this Agreement and or the arrangement of which it forms
part liable to registration under the Restrictive Trade Practices Act
1976 shall take effect until the day after the date on which
particulars required by that Act to be furnished to the Director
General of Fair Trading in respect of this Agreement or of the
agreement or arrangement of which it forms part have been furnished to
him in accordance with that Act.
8 GUARANTEE AND INDEMNITY
-----------------------
8.1 In consideration of the assumption by Datapoint and the Datapoint
Vendors of their obligations under or pursuant to this Agreement, the
Acquisition Agreements, the Darts Transfer Agreement, the Hardware
Maintenance Agreement, the RMS Software Licence Agreement, the Spanish
Tax Indemnity and the Swedish Management Agreement ("THE GUARANTEED
AGREEMENTS") the Guarantor hereby unconditionally and irrevocably
guarantees to Datapoint and the Datapoint Vendors the due and punctual
performance and observance of all the obligations, commitments,
undertakings, warranties and indemnities of Kalamazoo and the
Kalamazoo Purchasers under or pursuant to the Guaranteed Agreements
and agrees to indemnify Datapoint and the Datapoint Vendors against
all losses, liabilities, costs, charges, expenses, actions,
proceedings, claims and demands which Datapoint may suffer through or
arising from any breach by Kalamazoo and the Kalamazoo Purchasers of
their obligations, commitments, warranties or undertakings under or
pursuant to the Guaranteed Agreements. The liability of the
Guarantor under this Agreement shall not be released or diminished by
any variation of the terms of the Guaranteed Agreements (whether or
not agreed by the Guarantor), any forbearance, neglect or delay in
seeking performance of the obligations hereby imposed or any granting
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of time for such performance.
8.2 If and whenever Kalamazoo or the Kalamazoo Purchasers default for any
reason whatsoever in the performance of any obligation or liability
undertaken or expressed to be undertaken by them under or pursuant to
the Guaranteed Agreements, the Guarantor shall forthwith upon demand
unconditionally perform (or procure performance of) and satisfy (or
procure the satisfaction of) the obligation or liability in regard to
which such default has been made in the manner prescribed by the
Guaranteed Agreements and so that the same benefits shall be conferred
on Datapoint the Datapoint Vendors as they would have received if such
obligation or liability had been duly performed and satisfied by
Kalamazoo or the Kalamazoo Purchasers.
8.3 This guarantee is to be a continuing guarantee and accordingly is to
remain in force until all the obligations, commitments, undertakings,
warranties and indemnities of Kalamazoo or the Kalamazoo Purchasers in
or pursuant to the Guaranteed Agreement shall have been performed or
satisfied.
8.4 This guarantee is in addition to and without prejudice to and not in
substitution for any rights or security which Datapoint and/or the
Datapoint Vendors may now or hereafter have or hold for the
performance and observance of the obligations, commitments,
undertakings, warranties and indemnities of Kalamazoo and the
Kalamazoo Purchasers under or in connection with the Guaranteed
Agreement or not at all.
8.5 As a separate and independent stipulation the Guarantor agrees that
any obligation expressed to be undertaken by Kalamazoo or the
Kalamazoo Purchasers (including, without limitation, any moneys
expressed to be payable) which may not be enforceable against or
recoverable from Kalamazoo or the Kalamazoo Purchasers by reason of
any legal limitation, disability or incapacity on or of Kalamazoo or
the Kalamazoo Purchasers or any other fact or circumstance (other than
any limitation imposed by the Guaranteed Agreements) shall
nevertheless be enforceable against and recoverable from the Guarantor
as though the same had been incurred by the Guarantor and the
Guarantor were the sole or principal obligor in respect thereof and
shall be performed or paid by the Guarantor on demand.
8.6 In consideration of the assumption by Kalamazoo and the Kalamazoo
Purchasers of their obligations under or pursuant to this Agreement,
the Acquisition Agreements, the Darts Transfer Agreement, the Spanish
Tax Indemnity, the Property Licence, the Hardware Maintenance
Agreement, the RMS Software Licence Agreement and the Swedish
Management Agreement ("RELEVANT AGREEMENTS"), Datapoint hereby
unconditionally and irrevocably guarantees to each of Kalamazoo and
the Kalamazoo Purchasers respectively the due and punctual performance
and observance by each Datapoint Vendor of all its obligations,
commitments, undertakings, warranties and indemnities under or
pursuant to the Relevant Agreements and agrees to indemnify each of
Kalamazoo and the Kalamazoo
19
<PAGE>
Purchasers against all losses, liabilities, costs, charges, expenses,
actions, proceedings, claims and demands which Kalamazoo or that
Kalamazoo Purchaser may suffer through or arising from any breach by
any Datapoint Vendor of its obligations, commitments, warranties or
undertakings under or pursuant to the Relevant Agreements. The
liability of Datapoint under this Agreement shall not be released or
diminished by any variation of the terms of this Agreement, any
forbearance, neglect or delay in seeking performance of the
obligations hereby imposed or any granting of time for such
performance.
8.7 If and whenever a Datapoint Vendor defaults for any reason whatsoever
in the performance of any obligation or liability undertaken or
expressed to be undertaken by such Datapoint Vendor under or pursuant
to any of the Relevant Agreements, Datapoint shall forthwith upon
demand unconditionally perform (or procure performance of) and satisfy
(or procure the satisfaction of) the obligation or liability in regard
to which such default has been made in the manner prescribed by such
of the Relevant Agreements and so that the same benefits shall be
conferred on the respective Kalamazoo Purchaser or Kalamazoo as it
would have received if such obligation or liability had been duly
performed and satisfied by Datapoint.
8.8 This guarantee is to be a continuing guarantee and accordingly is to
remain in force until all the obligations, commitments, undertakings,
warranties and indemnities of the Datapoint Vendors in or pursuant to
the Relevant Agreements shall have been performed or satisfied.
8.9 This guarantee is in addition to and without prejudice to and not in
substitution for any rights or security which the Kalamazoo Purchasers
or Kalamazoo may now or hereafter have or hold for the performance and
observance of the obligations, commitments, undertakings, warranties
and indemnities of the Datapoint Vendors under or in connection with
the Relevant Agreements or at all.
8.10 As a separate and independent stipulation Datapoint agrees that any
obligation expressed to be undertaken by a Datapoint Vendor
(including, without limitation, any moneys expressed to be payable)
which may not be enforceable against or recoverable from such
Datapoint Vendor by reason of any legal limitation, disability or
incapacity on or of such Datapoint Vendor or any other fact or
circumstance shall nevertheless be enforceable against and recoverable
from Datapoint as though the same had been incurred by Datapoint and
Datapoint were the sole or principal obligor in respect thereof and
shall be performed or paid by Datapoint on demand.
8.11 If the administrator and/or the tribunal in Paris causes, requests or
requires Kalamazoo Computer Group S.A. to pay more than $1,500,000 in
connection with the French Acquisition Agreement, Datapoint hereby
agrees to indemnify Kalamazoo/as trustee for Kalamazoo Computer Group
S.A. in relation thereto and to pay to it immediately on demand the
amount of such excess and any amounts so paid by Datapoint shall be
20
<PAGE>
regarded as a reduction in the price it receives under the Darts
Transfer Agreement.
9 ASSIGNABILITY
-------------
9.1 This Agreement shall be binding on and shall enure for the benefit of
each Party's successors and assigns.
9.2 Except as permitted by clause 9.3, none of the Parties may, without
the written consent of the others, assign any of their respective
rights or obligations under this Agreement.
9.3 Any Party may assign the benefit of this Agreement to another member
of that Party's Group provided that such assignment shall not be
absolute but shall be expressed to have effect only for so long as the
assignee remains a member of the relevant Party's Group.
10 REMEDIES TO BE CUMULATIVE
-------------------------
10.1 Subject to clauses 6.14 and 6.15, no remedy conferred by any of the
provisions of this Agreement is intended to be exclusive of any other
remedy available at law, in equity, by statute or otherwise. Each and
every other remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law
in equity, by statute or otherwise. The election by any party to
pursue one or more of such remedies shall not constitute a waiver by
such party of the right to pursue any other available remedy.
11 COSTS
-----
11.1 Each of the Parties shall be responsible for its respective legal and
other costs incurred in relation to the preparation and completion of
this Agreement.
12 FURTHER ASSURANCE
-----------------
12.1 Each of the Parties shall, and shall use their respective endeavours
to procure that any necessary third parties shall, execute and deliver
to the other Parties such other instruments and documents and take
such other action as may be required to carry out, evidence and
confirm the provisions and intended purpose of this Agreement.
13 ANNOUNCEMENTS AND CIRCULARS
---------------------------
13.1 Subject as required by law or by the rules and regulations of any
recognised stock exchange or by any relevant national or supra-
national regulatory authorities, all announcements and circulars by or
on behalf of any of the Parties and relating to the subject matter of
this Agreement shall be in terms and subject to a timetable and manner
of publication to be agreed between the Parties in advance of issue.
21
<PAGE>
14 MISCELLANEOUS
-------------
14.1 No purported variation of this Agreement shall be effective unless
made in writing and signed by the Parties hereto.
14.2 If any term or provision in this Agreement shall be held to be illegal
or unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part shall to that extent be deemed not
to form part of this Agreement but the enforceability of the remainder
of this Agreement shall not be affected.
14.3 A Party's failure to insist on strict performance of any provision of
this Agreement shall not be deemed to be a waiver thereof or of any
right or remedy for breach of a like or different nature. Subject, as
aforesaid, no waiver shall be effective unless specifically made in
writing and signed by a duly authorised officer of the Party granting
such waiver.
14.4 This Agreement may be entered into in any number of counterparts and
by the Parties to it on separate counterparts, each of which when
executed and delivered shall be an original, but all the counterparts
shall together constitute one and the same instrument.
14.5 Kalamazoo hereby declares itself trustee of the obligations and
covenants given in this Agreement by Datapoint insofar as they are
expressed to be for the benefit of any member of Kalamazoo's Group and
holds the said obligations and covenants upon trust for the absolute
benefit of such member of Kalamazoo's Group and Datapoint hereby
covenants with Kalamazoo in its capacity as such trustee to perform
each of the said obligations and covenants.
14.6 Datapoint hereby declares itself a trustee of the guarantees,
obligations and covenants by the Guarantor insofar as they are
expressed to be for the benefit of any member of Datapoint's Group and
holds the said guarantees, obligations and covenants upon trust for
the absolute benefit of such member of Datapoint's Group and the
Guarantor hereby covenants with Datapoint in its capacity as such
trustee to perform each of the said guarantees, obligations and
covenants.
15 NOTICES
-------
15.1 Any notice or other document to be given under this Agreement shall be
in writing and shall be deemed duly given if left at or sent by
registered post or facsimile transmission to the following addresses
or numbers:
(a) in the case of the Guarantor:
22
<PAGE>
name: Kalamazoo Computer Group plc
address: Northfield
Birmingham
B31 2RW
attention: Ian Davidson/David Deacon
facsimile no.: 0121 478 0077
(b) in the case of Kalamazoo:
name: Kalamazoo Investment plc
address: Northfield
Birmingham
B31 2RW
attention: Ian Davidson/David Deacon
facsimile no.: 0121 478 0077
and copy to:
name: Wragge & Co
address:55 Colmore Row
Birmingham
England
B3 2AS
attention: Maurice Dwyer/Jeremy Millington
facsimile no.:0121 214 1099
23
<PAGE>
(c) in the case of Datapoint:
name: Datapoint Corporation
address: 5-7 rue Montalivet 75008
Paris
France
attention: Blake Thomas
facsimile no.: 0033 1400 73702
and copy to:
name: Pryor Cashman Sherman & Flynn
address: 410 Park Avenue,
New York, NY USA
attention: Selig Sacks/Gerry Agranoff
facsimile no.: 001 212 326 0806
or to such other addresses and/or numbers as such Parties may by
notice to all other Parties hereto expressly substitute therefor.
15.2 Any such notice shall be deemed to be received when in the ordinary
course of the means of transmission it would first be received by
the addressee in normal business hours.
15.3 In proving the giving of a notice it shall be sufficient to prove
that the notice was left or that the envelope containing such notice
was properly addressed and posted or that the applicable means of
telecommunications was properly addressed and despatched (as the
case may be).
16 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
-----------------------------------------------------------------
16.1 This Agreement shall be governed by and interpreted in accordance
with English law.
16.2 Any disputes or claims in any way relating to or in connection with
this Agreement shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with the said Rules. The place
of the arbitration shall be London and the language of the
arbitration shall be English.
24
<PAGE>
16.3 Datapoint hereby irrevocably authorises and appoints Datapoint (UK)
Limited at its registered office for the time being, (being at the
date hereof at Datapoint House, 400 North Circular Road, London SW10
0JG) to accept service of all legal process arising out of or
connected with this Agreement and service on such process agents
shall be deemed to be service on Datapoint. If such process agent
ceases to exist or to have an address in England, Datapoint
irrevocably agrees without notice to appoint new process agents
acceptable to Kalamazoo and to deliver a written acceptance of
appointment by such process agents.
IN WITNESS whereof this Agreement has been entered into the day and year
first above written
25
<PAGE>
Schedule 1
----------
Part 1
------
("THE DATAPOINT WARRANTIES")
GENERAL
1 In this schedule 1 part 1 references to Datapoint shall be deemed also
to be references to each and every Datapoint Group company which has
been engaged in the Business and references to the Business (unless
otherwise indicated by the words "any" or "part of "..." the
Business") shall be deemed to be references to the Business as a whole
as carried on throughout the Territory.
CAPACITY OF DATAPOINT
2.1 Datapoint is not subject to any obligation or liability or duty to any
person or company which could in any material way:
(a) prevent or restrict it from entering into this Agreement; or
(b) prevent or restrict Kalamazoo or any member of its Group from
doing business with any person firm or company which a customer
or supplier or the provider of services to the Business.
2.2 Datapoint has the requisite power and authority to enter into and
perform this Agreement.
2.3 This Agreement constitutes and all other documents which are referred
to in this Agreement as having been or to be executed by Datapoint
("ANCILLARY AGREEMENTS") constitute or will, when executed, constitute
binding obligations of Datapoint in accordance with their respective
terms.
2.4 The execution and delivery of, and the performance by Datapoint of
obligations under this Agreement and the Ancillary Agreements will
not, in any material respect:
(a) result in a breach of any provision of the Certificate of the
Incorporation or the Bylaws of Datapoint;
(b) result in a breach of, or constitute a default under, any
instrument to which Datapoint or any member of the Datapoint
Group is a party or body or by which Datapoint is bound; or
(c) result in a breach of any order, judgment or decree of any court
or governmental agency to which Datapoint or any member of the
Datapoint Group is a party or by which Datapoint or any member of
the Datapoint Group is bound.
26
<PAGE>
DISCLOSURE OF MATERIAL FACTS
3 All statements of fact contained in the Disclosure Documents is true
and accurate in all material respects and Datapoint is not aware of
any other fact, matter or circumstance which could be reasonably
expected to render any such information misleading in any material
respect.
BUSINESS PLAN
4 The facts supplied by Datapoint for use in the preparation of the
Business Plan are so far as Datapoint is aware true and accurate in
all material respects and Datapoint is not aware of any other facts
which could reasonably be expected to make inaccurate or misleading
such facts in any material respect (and "material" for the purposes of
this paragraph only shall be regarded as having an adverse cost effect
of at least $250,000 in any one year).
LITIGATION
5 Datapoint is not in relation to any part of the Business engaged in
any capacity in any litigation, arbitration, prosecution or other
legal proceedings or in any proceedings or hearings before any
statutory or Governmental body, department, board or agency. So far
as Datapoint is aware no such matters are pending or threatened and
Datapoint is not aware of any circumstances which may give rise to any
such matter.
MISCELLANEOUS
6 Datapoint:
(a) has no equity interest in any other company or business which has
a close trading relationship with or is in competition with the
Business;
(b) since 1st January 1993, has not been prosecuted and no notice has
been received by Datapoint that it is and remains at the date
hereof liable to be prosecuted in any part of the world of any
criminal offence;
(c) so far as it is aware, has not any unsatisfied order or judgment
against it;
(d) has not been adjudged insolvent or has compounded with its
creditors generally.
7 So far as Datapoint is aware, Datapoint in relation to the Business is
not and never has been in receipt of aids that are incompatible with
the common market as defined in Article 4(c) of the ECSC Treaty or
Article 92(1) of the ECSC Treaty.
27
<PAGE>
Part 2
------
("THE KALAMAZOO WARRANTIES")]
GENERAL
1 In this schedule 1 part 2 references to Kalamazoo shall be deemed also
to be references to each and every Kalamazoo Group company.
CAPACITY OF KALAMAZOO
2.1 Kalamazoo is not subject to any obligation or liability or duty to any
person or company which could in any material way prevent or restrict
it from entering into this Agreement.
2.2 Kalamazoo has the requisite power and authority to enter into and
perform this Agreement.
2.3 This Agreement constitutes and all other documents which are referred
to in this Agreement as having been or to be executed by Kalamazoo
("ANCILLARY AGREEMENTS") constitute or will, when executed, constitute
binding obligations of Kalamazoo in accordance with their respective
terms.
2.4 the execution and delivery of, and the performance by Kalamazoo of
obligations under this Agreement and the Ancillary Agreements will
not, in any material respect:
(a) result in a breach of any provision of the memorandum or articles
of association of Kalamazoo;
(b) result in a breach of, or constitute a default under, any
instrument to which Kalamazoo or any member of the Kalamazoo
Group is a party or body or by which Kalamazoo is bound; or
(c) result in a breach of any order, judgment or decree of any court
or governmental agency to which Kalamazoo or any member of the
Kalamazoo Group is a party or by which Kalamazoo or any member of
the Kalamazoo Group is bound.
MISCELLANEOUS
3 Kalamazoo:
(a) since 1st January 1993, has not been prosecuted and no notice has
been received by Kalamazoo that it is and remains at the date
hereof liable to be prosecuted in any part of the world of any
criminal offence;
(b) so far as it is aware, has not any unsatisfied order or judgment
against it;
(c) has not been adjudged insolvent or has compounded with its
creditors generally.
28
<PAGE>
Schedule 2
----------
Parties to Acquisition Agreements
---------------------------------
====================================================================
(3)
PRINCIPAL
(1) (2) COUNTRY WHERE
VENDOR PURCHASER BUSINESS
PURCHASED IS
BASED
====================================================================
Datapoint Belgium S.A. Kalamazoo Belgium
- --------------------------------------------------------------------
Datapoint S.A. Kalamazoo France
- --------------------------------------------------------------------
Datapoint Deutschland GmbH Kalamazoo Germany
- --------------------------------------------------------------------
Datapoint Nederland B.V. Kalamazoo the Netherlands
- --------------------------------------------------------------------
Datapoint Iberica S.A. Kalamazoo Spain
- --------------------------------------------------------------------
Datapoint (Schweiz) Ltd Kalamazoo Switzerland
- --------------------------------------------------------------------
Datapoint Svenska AB Kalamazoo Sweden
====================================================================
29
<PAGE>
EXECUTED AS A DEED by )
KALAMAZOO COMPUTER GROUP )
PLC acting by: )
Director
Director/Secretary
EXECUTED AS A DEED by )
KALAMAZOO INVESTMENT PLC )
acting by: )
Director
Director/Secretary
EXECUTED AS A DEED by )
DATAPOINT CORPORATION )
acting by: )
Director
Director/Secretary
30
Exhibit 3
Private & Confidential Draft (13) 25 May 96
947908/MJD/ATS
DATED 1996
----------------------------------------------
[DATAPOINT GROUP VENDOR] (1)
AND
[KALAMAZOO INVESTMENT PLC] (2)
------------------------------------
AGREEMENT
FOR THE SALE AND PURCHASE OF [PART OF] THE BUSINESS
AND ASSETS OF [DATAPOINT GROUP VENDOR]
------------------------------------
<PAGE>
CONTENTS
- --------
CLAUSEHEADINGPAGE
1 Purpose and definitions . . . . . . . . . . . . . . . . . . . . . 1
2 Vendor's representations . . . . . . . . . . . . . . . . . . . . . 5
3 The Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Sale of the Business and assets . . . . . . . . . . . . . . . . . 6
5 Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6 Conduct of the Business pending Completion . . . . . . . . . . . . 10
7 Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8 Value Added Tax . . . . . . . . . . . . . . . . . . . . . . . . . 13
9 Post-Completion matters (including announcements and circulars) . 14
10 Outstanding contracts, pending contracts, engagements and orders
and
apportionments . . . . . . . . . . . . . . . . . . . . . . . . 15
11 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12 Pensions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
13 [Competition Law Compliance] . . . . . . . . . . . . . . . . . . . 18
14 Warranties and limitations . . . . . . . . . . . . . . . . . . . . 19
15 Investment trusts and regional development trusts . . . . . . . . 20
16 Continuing effects of this Agreement . . . . . . . . . . . . . . . 20
17 Releases, etc., by the Purchaser . . . . . . . . . . . . . . . . . 20
18 Other provisions . . . . . . . . . . . . . . . . . . . . . . . . . 20
19 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
20 Choice of law, submission to jurisdiction and address for
service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
<PAGE>
SCHEDULE
1 The Consideration Apportionment . . . . . . . . . . . . . . . . .
2 Assets being sold (exclusive of assets comprised in schedules 3
and 4) 35
3 Intellectual Property Rights . . . . . . . . . . . . . . . . . . .
Part A - Patents and patent applications . . . . . . . . . . . . .
Part B - Trade and service marks and trade and service mark
applications . . . . . . . . . . . . . . . . . . . . . .
Part C - Registered designs and registered design applications . .
Part D - Business names and unregistered trade or service marks .
4 Agreements and licences . . . . . . . . . . . . . . . . . . . . .
Part A - Licences in respect of Intellectual Property Rights . . .
Part B - The Leasing Agreements . . . . . . . . . . . . . . . . .
Part C - Customer Contracts . . . . . . . . . . . . . . . . . . .
5 Assets excluded from the sale . . . . . . . . . . . . . . . . . .
6 Pension arrangements . . . . . . . . . . . . . . . . . . . . . . .
7 The Employees . . . . . . . . . . . . . . . . . . . . . . . . . .
8 Warranties and Representations . . . . . . . . . . . . . . . . . .
AGREED FORM DOCUMENTS
DOCUMENT
the Property Licence
[IN SPAIN ONLY - Sundry Debtors]
<PAGE>
THIS AGREEMENT is dated ................... 1996 and is made BETWEEN:
(1) [DATAPOINT GROUP VENDOR] (No.........................) [of/whose
registered office is at] ................................
("THE VENDOR")
(2) [KALAMAZOO INVESTMENT PLC] (No [UK3156697] [of/whose registered office
is at] Mill Lane, Northfield, Birmingham, England, B31 2RW
("THE PURCHASER")
NOW IT IS HEREBY AGREED as follows:
1 PURPOSE AND DEFINITIONS
-----------------------
1.1 This is an Agreement for the sale and purchase of the Business (as
defined in clause 1.2) and certain assets used in connection with the
Business.
1.2 In this Agreement unless the context otherwise requires:
(a) the following expressions have the following meanings:
"THE ACCOUNTS" means the audited accounts of the Vendor for the
period ended on the Accounts Date
"THE ACCOUNTS DATE" means 31st July 1995
"AUDITORS" means Deloitte & Touche of [local address]
"AUTOLINE" means the products and services currently marketed by
the Vendor under the brand name "Autoline"
"BUSINESS DAY" means a day on which banks are open for business
in [ ]
"THE BUSINESS" means the business as now carried on by the Vendor
in [country] of:
(a) the sale of computer hardware systems, and the licence of
operating and communications systems and software
applications products, in relation to automotive dealer
management systems (other than in relation to Autoline);
(b) the provision of ongoing software support services,
including help desk and hot-line support, and computer
hardware maintenance services in relation to Darts and Darts
Central automotive dealer management systems (but for the
avoidance of doubt, not in relation to Autoline or computer
hardware maintenance services in the United Kingdom and the
Republic of Ireland); and
<PAGE>
(c) the systems, software and related services to enable the
provision of communications services between Ford dealers
and Ford Motor Company of Europe through the Darts Central
operations;
"COMPLETION" means completion of this Agreement in accordance
with its terms and where the context requires also means the
performance by the parties of the several obligations contained
in clause 7
"THE COMPLETION DATE" means [ ] June 1996 or such later date
(not being after [ ] 1996) as is the business day next
following the date on which the conditions stated in clause 3
shall have been fulfilled
"THE CONDITIONS" means the conditions stated in clause 3
"CUSTOMER CONTRACTS" means contracts with customers entered into
by the Vendor in the course of the Business for both software
support and hardware maintenance services as listed in part C of
schedule 4
"DEFAULT INTEREST RATE" means two per cent above the London Inter
bank market rate for deposits in [RELEVANT CURRENCY] held for
three months from time to time
"THE DEFERRED INCOME" means an amount to be regarded as owed at
Completion by the Vendor to the Business in the Special Accounts
which is equal to the aggregate (in each case excluding [VAT]) of
the amounts paid or payable by customers under Software Contracts
which relate to the period following Completion until its expiry
(calculated on a time-expired apportionment basis)
"DISCLOSURE LETTER" means the Disclosure Letter as defined in the
Umbrella Acquisition Agreement insofar as it relates to the
Business
"THE EMPLOYEES" means the employees employed by the Vendor in the
Business at Completion and which will be employed by the
Purchaser as from Completion as listed in schedule 7
"GROUP" means in relation to any company, that company and any
company which is a holding company or subsidiary of that company
and any subsidiary of any such holding company and for the
purposes of this Agreement the terms "subsidiary" and "holding
company" shall have the meanings ascribed thereto [by sections
736 and 736A Companies Act 1985]
"INDEPENDENT ACCOUNTANTS" means such independent firm of
[chartered] accountants as may be agreed between the parties
hereto or, in the absence of such agreement, nominated by [INSERT
DESCRIPTION OF HEAD OF RELEVANT NATIONAL
2
<PAGE>
ASSOCIATION OF ACCOUNTANTS] on the application of either the
Vendor or the Purchaser
"HARDWARE CONTRACTS" means those of the Customer Contracts which
relate (or to the extent they relate) to the supply of
maintenance of hardware and equipment services
"INTELLECTUAL PROPERTY RIGHTS" means patents, registered designs,
trade marks and service marks (whether registered or not),
copyright (including vested, contingent and future copyright),
design rights, and all similar property rights, including those
subsisting (in any part of the world) in inventions, designs,
drawings, performances, computer programs and operating and
applications software and all derivating variations, versions and
developments thereof of all such programs and software,
semiconductor topographies, confidential information, know-how,
business names and the style of presentation of goods or services
and in applications for protection thereof (other than that
transferred pursuant to the Darts Transfer Agreement)
"THE LEASEHOLD[S]" means the leasehold propert[y/ies] specified
in the Property Licence which is located in [country]
"THE LEASING AGREEMENTS" means the leasing, conditional sale,
credit sale, hire purchase and like agreements relating to the
Business at Completion listed in part B of schedule 4
"THE LIABILITIES" means the aggregate of:
(i) that proportion of all outstanding employee costs relating
to the period prior to Completion including without
limitation taxation relating thereto, bonuses, commissions
and holiday entitlement accruals;
(ii) all outstanding amounts under the Leasing Agreements and any
contract hire, hire purchase, conditional sale or other
agreements requiring any payment in respect of any assets
used in the Business at Completion;
(iii) any other amounts representing liabilities of the
Business and relating to the period prior to the
Completion Date (whether on an accruals basis or
otherwise) actually assumed or paid by the Purchaser or
agreed to be so assumed or paid (including without
limitation telephone and services charges)
"THE NET ASSET VALUE" means a sum equal to the value of the
Tangible Assets, the Stock [IN SPAIN ONLY - the Sundry Debtors]
and the Prepayment at the Completion Date less a sum equal to the
Liabilities and the Deferred Income, all as shown in the Special
Accounts
3
<PAGE>
"THE PREPAYMENT" means 85% of the amounts paid or payable by
customers under Hardware Contracts which relate to the period
following Completion until its expiry (calculated on a time-
expired apportionment basis)
"THE PROPERTY LICENCE" means the relevant licence relating to the
occupation of, inter alia, the Leasehold[s] proposed to be
entered into between the Vendor and the Purchaser and certain
members of their respective Groups in the agreed form
"THE PURCHASER'S SOLICITORS" means [ ]
"RECEIVABLES" means the book and other debts receivable by or
owing to the Vendor relating to goods and services supplied in
connection with the Business prior to Completion (whether or not
yet due and payable) (including without limitation, trade debts
deposits and retrospective rebates and interest thereon) [in
Spain only - (other than Sundry Debtors)]
"RECORDS" means all:
(a) accounting and financial records;
(b) taxation records for the six years ending on the accounting
reference date of the Vendor next following Completion;
(c) correspondence;
(d) sales literature and publicity material;
(e) lists (including without limitation customer and supplier
lists), books and documents; and
(f) other information (whether recorded on computer or otherwise
howsoever),
relating to used or intended for use exclusively or primarily in
the Business
[LOCAL LAWYER TO ASSESS REQUIREMENT FOR HOLDING AND ACCESS TO
RECORDS ETC]
"SOFTWARE CONTRACTS" means those of the Customer Contracts which
relate (or to the extent they relate) to the supply of software
support services
"THE SPECIAL ACCOUNTS" means the balance sheet relating to the
Business showing the Net Asset Value as at the Completion Date to
be prepared in accordance with clause 5.2
"STATUTORY RECORDS" means all Records which are required by law
to be retained by the Vendor after Completion
"THE STOCK" means all such stock-in-trade and work in progress as
is referred to in paragraph 2 of schedule 2 and which as at
Completion has been held by the Vendor
4
<PAGE>
for less than 6 months, is marketable to be used in the ordinary
course of the Business and is not obsolete, slow-moving,
deteriorated or excessive
[IN SPAIN ONLY - "SUNDRY DEBTORS" means those debtors of the
Vendor as more particularly identified in the list in the agreed
form and which arose in the ordinary and normal course of
business]
"THE TANGIBLE ASSETS" means all tangible assets relating to the
Business and listed in paragraphs 3, 5, 6, 7, 8 and 9 of
schedule 2
"UMBRELLA ACQUISITION AGREEMENT" means the Agreement of even date
between Kalamazoo Computer Group plc (1), Kalamazoo Investment
plc (2) and Datapoint Corporation (3)
["VAT" means [value added tax] or such other tax calculated by
reference to turnover or value added as may be in effect in [
] from time to time]
"THE VENDOR'S LAWYERS" means [ ] of [ ]
"THE WARRANTIES" means the warranties, representations and
undertakings contained in or referred to in clause 14 and
schedule 8
(b) words and expressions defined in or for the purpose of the
Umbrella Acquisition Agreement shall (unless the context
otherwise requires or they are specifically defined herein) have
the same meanings in this Agreement;
(c) any document expressed to be "IN THE AGREED FORM" means a
document in a form approved by (and for the purpose of
identification signed by or on behalf of) the parties hereto;
(d) references:
(i) to clauses and schedules are [unless otherwise stated] to
clauses of and schedules to this Agreement;
(ii) to statutory provisions shall be construed as references to
those provisions as respectively replaced, amended or
re-enacted (whether before or after the date hereof) from
time to time and shall include any provisions of which they
are re-enactments (whether with or without modification);
(e) words importing the singular include the plural and vice versa,
words importing a gender include every gender and references to
persons include bodies corporate or unincorporate;
5
<PAGE>
(f) the headings to the clauses are for convenience only and have no
legal effect;
(g) [applicability of any relevant statutes concerning interpretation
of commercial agreements.]
2 VENDOR'S REPRESENTATIONS
------------------------
2.1 The Vendor has represented to the Purchaser that:
(a) the Vendor has the requisite power and authority to enter into
and perform this Agreement;
(b) this Agreement constitutes and all other documents which are to
be executed by the Vendor at Completion will, when executed,
constitute binding obligations of the Vendor in accordance with
their respective terms;
(c) the execution and delivery of, and the performance by the Vendor
of obligations under, this Agreement [and the other documents
which are to be executed by the Vendor at Completion] will not:
(i) result in a breach of any provision of the [Memorandum or
Articles of Association] of the Vendor;
(ii) result in a breach of, or constitute a default under, any
instrument to which the Vendor is a party or by which the
Vendor is bound; or
(iii) result in a breach of any order, judgment or decree of any
court or governmental agency to which the Vendor is a party
or by which the Vendor is bound.
3 THE CONDITIONS
--------------
3.1 This Agreement (other than the provisions of clauses 16 to 20
inclusive) is conditional on:
(a) the fulfilment or waiver of all conditions precedent to the
Umbrella Acquisition Agreement (other than any conditions
relating to completion of or the fulfilment or waiver of the
conditions to completion of this Agreement), any other
Acquisition Agreement or the Darts Transfer Agreement;
(b) [specific condition re: compliance with domestic competition law
requirements and obtaining of necessary domestic clearances;]
6
<PAGE>
(c) [specific conditions re: compliance with domestic employee or
works council consultation procedures.]
3.2 In the event of the Condition[s] not being fulfilled (or waived by the
Purchaser) by [ ] June 1996 (or such later date as the parties shall
agree), all liabilities of the parties hereunder (with the exception
of those in clause 18.4) shall cease and determine and (save as
aforesaid) no party shall have any claim against the other.
4 SALE OF THE BUSINESS AND ASSETS
-------------------------------
4.1 With the exception of those items listed or referred to in schedule 5
(which items are excluded from the sale and purchase hereunder), the
Vendor as beneficial owner shall sell free from all liens, charges and
encumbrances (other than those (if any) specified in the Disclosure
Letter) and the Purchaser, relying on the warranties of the Vendor
herein contained, shall purchase as at Completion for the respective
considerations stated in the relative schedules:
(a) the assets listed in schedule 2;
(b) all Intellectual Property Rights owned by the Vendor relating to
or used exclusively or primarily in connection with the Business,
including without limitation all such rights as are listed in
schedule 3;
(c) subject to clauses 4.3 and 4.4, the benefit (subject to the
burden) of all undischarged contracts, pending contracts,
engagements and orders and licences relating exclusively or
primarily to the Business, including, without limitation:
(i) all licences in respect of the use of Intellectual Property
Rights used exclusively or primarily in connection with the
Business (including without limitation those listed in part
A of schedule 4);
(ii) the Leasing Agreements; and
(iii) the Customer Contracts.
4.2 All the assets hereby agreed to be sold shall as from Completion
(pending an assignment or assurance thereof) be held by the Vendor on
trust for the Purchaser absolutely.
4.3 (a) Except as otherwise expressly provided in this Agreement, the
Purchaser shall have no responsibility for creditors or other
liabilities of the Vendor in relation to the Business existing at
Completion or arising by reason of anything done or omitted to be
done prior to Completion. Except as otherwise expressly provided
in this Agreement and without limiting clause 4.1(c), the Vendor
shall be responsible for all the creditors and other liabilities
of the Business arising on or before or by reference
7
<PAGE>
to the period on or before Completion and shall indemnify the
Purchaser against all liability in respect thereof.
(b) The Vendor shall have no responsibility for creditors or other
liabilities arising by reason of anything done or omitted to be
done by the Purchaser on or after Completion and the Purchaser
shall indemnify the Vendor against all liability in respect
thereof.
4.4 Nothing in this Agreement shall be construed as an attempt to assign
any contracts (including, without limitation, the Leasing Agreements),
pending contracts, engagements or orders and licences comprised in the
assets to be sold hereunder which by their terms or by law are not
assignable without the consent, licence, approval, permission,
authorisation or waiver of a third party, unless such consent,
licence, approval, permission, authorisation or waiver shall have
been given. Insofar as any such contracts, pending contracts,
engagements or orders and licences comprised in the assets to be sold
hereunder:
(a) are not assignable or cannot be assigned without such assignment
constituting an event of default or termination, the Vendor shall
at the option of the Purchaser (exercisable by notice to the
Vendor given within 3 months following Completion) and in all
respects at the Vendor's expense:
(i) join in using reasonable endeavours to procure that the
existing arrangements with the Vendor be terminated and that
the Purchaser be granted corresponding rights (and for this
purpose shall do all such acts and things and make all such
representations as the Purchaser may reasonably require); or
(ii) use all reasonable endeavours to procure that all relevant
third parties waive the relevant provisions; or
(iii) execute a declaration of trust for the benefit and in favour
of the Purchaser; or
(iv) otherwise deal with the assignment as the Purchaser may
reasonably direct;
(b) cannot effectively be transferred to, or the obligations
thereunder cannot effectively be assumed by, the Purchaser except
by an agreement of novation with third parties:
(i) the parties shall use their respective reasonable endeavours
to procure the same to be novated; and
(ii) unless and until any such novation is entered into, the
Vendor shall do all such acts and things in relation thereto
as the Purchaser may reasonably require.
8
<PAGE>
5 CONSIDERATION
-------------
5.1 The consideration payable for all the Business and assets hereby
agreed to be sold shall (subject to clause 5.2) be the sum of US$1
(and the assumption of the Liabilities) allocated as set out in
schedule 1 which shall be payable on today's date and receipt of whith
the Vendor hereby acknowledges.
5.2 (a) Subject to and in accordance with clause 4 in the Umbrella
Acquisition Agreement, if the Net Asset Value is less than zero
the Vendor shall pay to the Purchaser a sum equal to the
difference.
(b) Every sum payable under clause 5.2(a) shall be paid from the
monies received by the Purchaser in accordance with clause 10.2
below and any shortfall shall be paid (if not discharged to the
Purchaser or (on its behalf) to a member of its Group pursuant to
clause 5 of the Umbrella Acquisition Agreement):
(i) on the 90th day following Completion; and
(ii) together with interest thereon at the Default Interest Rate
which shall accrue from day to day and shall be calculated
on the basis of a year of 365 days from the Completion Date
up to and including the date of payment.
(c) The Purchaser shall procure that there shall be a stocktaking of
the Stock on or on the day following the Completion Date by the
Auditors and that as soon as practicable following Completion
Date, and in any event not later than 30 days after the
Completion Date a draft of the Special Accounts ("THE DRAFT
SPECIAL ACCOUNTS") shall be prepared jointly by the parties and
reviewed by the Auditors in accordance with clause 5.2(d) and
(once so reviewed) delivered simultaneously to the Purchaser and
the Vendor.
(d) The draft Special Accounts shall be prepared:
(i) [on a historical cost basis and on a going concern basis] in
accordance with accounting principles and practices
generally accepted in [INSERT RELEVANT JURISDICTION] which
are in force at Completion; and
(ii) notwithstanding the provisions of clauses 5.2(d)(i) in
accordance with the following specific matters.
[INCLUDE ANY SPECIAL VALUATION CRITERIA]
(e) The Purchaser and the Vendor shall within 10 days after such
delivery ("THE REVIEW PERIOD"), review the draft Special Accounts
and endeavour to agree what adjustments
9
<PAGE>
(if any) need to be made to them in order for them to comply with
clause 5.2(d). If the Purchaser and the Vendor agree that no
adjustments need to be made to the draft Special Accounts or
agree on the adjustments to be made they shall jointly
incorporate into the draft Special Accounts any necessary
adjustments and the draft Special Accounts (as adjusted if
required) and the amount of the Net Assets Value specified in
such draft shall be the Special Accounts and the Net Assets Value
respectively for all purposes of this Agreement.
(f) If the Purchaser and the Vendor are unable to agree within the
Review Period on whether adjustments need to be made to the draft
Special Accounts the adjustments to be made thereto or the amount
of the Net Assets Value within 10 days after delivery of the
draft Special Accounts pursuant to clause 5.2(c), then such
matter or matters (but no other matters) shall thereupon be
referred to the Independent Accountants for determination on the
following basis:
(i) The Independent Accountants shall be instructed to notify
the Purchaser and the Vendor of their determination of any
such matter within 30 days of such referral;
(ii) The Purchaser and the Vendor shall be entitled to make
written submissions to the Independent Accountants, but
subject thereto the Independent Accountants shall have power
to determine the procedure to be followed in relation to
their determination;
(iii) Any submissions to and the determination of the Independent
Accountants shall be in the English language and any oral
hearings shall be conducted in English in London;
(iv) In making such submissions the Purchaser and the Vendor
shall state their respective best estimates of monetary
amounts of the matters referred for determination;
(v) In making their determination the Independent Accountants
shall act as experts and not as arbitrators, their decision
as to any matter referred to them for determination shall
(in the absence of manifest error) be final and binding in
all respects on the Purchaser and the Vendor;
(vi) The fees of the Independent Accountants shall be borne and
paid as the Independent Accountants shall direct.
(g) The Purchaser and the Vendor jointly shall as soon as practicable
incorporate into and reflect in the draft Special Accounts the
matters determined by the Independent Accountants and the draft
Special Accounts as so amended and the amount of the Net
10
<PAGE>
Assets Value specified in such draft shall be the Special
Accounts and the Net Assets Value respectively for all purposes
of this Agreement.
5.3 If the Vendor is required to make a payment to the Purchaser pursuant
to clause 5.2 or in respect of any claim against the Vendor for any
breach of this Agreement the payment shall be made by way of
adjustment of the consideration paid or satisfied by the Purchaser for
the Business under this Agreement and the consideration shall be
deemed to have been reduced by the amount of such payment.
6 CONDUCT OF THE BUSINESS PENDING COMPLETION
------------------------------------------
6.1 Pending Completion or the Conditions failing:
(a) (subject to any applicable confidentiality provisions agreed in
writing between Datapoint and the Guarantor) the Vendor shall
give the Purchaser and any person authorised by the Purchaser on
reasonable notice, reasonable access to all premises used in the
Business and to all the books and records of the Business and
shall instruct the directors and employees of the Vendor to give
promptly all such information and explanations as the Purchaser
or any such person may reasonably request provided that the
obligations of the Vendor under this clause shall not extend to
allowing access to information which is reasonably regarded as
confidential to the activities of the Vendor otherwise than in
connection with the Business;
(b) except as required pursuant to this Agreement, the Vendor shall
not except with the prior written consent of the Purchaser (which
consent shall not be unreasonably withheld or delayed in the case
(only) of the matters referred to at clauses 6.1(b)(i)(A) and (B)
and 6.1(b)(iii)):
(i) otherwise than in the ordinary course of the Business:
(A) in relation to the Business incur in connection with a
single transaction any liability (whether as principal
or surety) for a principal amount which exceeds or
could exceed $50,000;
(B) create any mortgage, charge, pledge, hypothecation or
other security interest over the Business or the
undertaking or any of the assets to be sold hereunder
or permit any lien to arise in respect thereof;
(ii) make any material change (including but not limited to any
change by the incorporation, acquisition or disposal of a
subsidiary or subsidiary undertaking or a business) in the
nature or extent of the Business;
11
<PAGE>
(iii) make any material change in the terms or conditions of
employment or engagement of any employees or officers
engaged in the Business;
(iv) in relation to the Business, commit or omit to do any act or
thing the commission or (as the case may be) the omission of
which is in contravention of any applicable law, order or
regulation and which could have a material adverse effect on
the Business;
(v) depart from continuing the Business in its ordinary course;
(vi) in relation to the Business incur or enter into or amend any
contract or commitment which is not capable of being
terminated without compensation at any time with three
months' notice or less;
(vii) fail to keep in place existing insurance cover relating to
the Business and the assets to be sold hereunder;
(viii) fail to maintain the confidentiality of customer and
supplier information and of other confidential or
proprietary information relating to the Business;
(ix) fail to keep proper accounting records;
(x) in relation to the Business enter into any borrowing,
factoring or other financing or any lending commitments,
being in each case commitments outside the ordinary course
of the Business; or
(xi) do, allow or procure any act or omission before Completion
which would constitute a material breach of any of the
warranties and representations respectively set out in
clauses 2 and 14 and schedule 8 if they were given at
Completion or which would make any of them inaccurate or
misleading to a material extent if they were so given.
7 COMPLETION
----------
7.1 Completion shall take place on the Completion Date at the offices of
De Brauw Blackstone Westbroek in Amsterdam when all (but not part only
unless the parties shall so agree) of the following business shall be
transacted:
(a) the Vendor shall:
(i) give possession to the Purchaser of such of the assets
hereby agreed to be sold as are transferable by delivery;
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<PAGE>
(ii) execute and deliver to the Purchaser deeds of assignment in
the agreed form in respect of the [patents, trade marks and
registered designs] hereby agreed to be sold to the
Purchaser;
(iii) (if requested by the Purchaser so to do) deliver to the
Purchaser duly executed assignments or other assurances of
such other of the assets hereby agreed to be sold as are not
transferable by delivery;
(iv) give possession to the Purchaser (if appropriate) of the
equipment the subject of the Leasing Agreements;
(v) give possession to the Purchaser of the Records other than
the Statutory Records (provided that following Completion
the Vendor shall be given reasonable access to and shall be
entitled to take copies of the Records for any reasonable
purpose);
(b) the Purchaser shall pay the consideration payable in accordance
with clause 5; and
[(c) the arrangements stated in schedule 6 with regard to pension
entitlements of employees of the Vendor in the Business shall be
effected.]
7.2 If the Vendor or the Purchaser shall be unable to comply with any of
its obligations under the preceding provisions of this clause on the
Completion Date or if the Vendor is in breach of any of its covenants
under clause 6 (which breach is incapable of remedy or has not been
remedied by the Vendor within 5 business days of notice being given of
such breach by the Purchaser to the Vendor), the other party may:
(a) (subject to clause 3.2 above) defer Completion to a date not more
than 28 days after the said date (and so that the provisions of
this clause 7.2 shall apply to Completion as so deferred) but
provided that such deferral may occur only once; or
(b) proceed to Completion so far as practicable, but without
prejudice to the rights available to it (whether under this
Agreement generally or under this clause 7) to the extent that
the other party shall not have complied with its obligations
thereunder; or
(c) rescind this Agreement.
7.3 Title and risk of loss or damage to the assets to be sold hereunder
shall pass to the Purchaser on Completion.
8 VALUE ADDED TAX
---------------
[8.1 All payments to be made pursuant to this Agreement shall (save where
otherwise specifically stated) be taken to be exclusive of VAT (if
applicable) and any VAT chargeable in respect of
13
<PAGE>
the matters giving rise to such payments shall be charged in addition
thereto in accordance with the relevant regulations in force and shall
be payable by the paying party only against receipt from the other of
a valid VAT invoice in respect thereof.
8.2 The parties acknowledge and agree that it is considered that [relevant
VAT statute] will apply to the sale and purchase of the Business, so
that the transaction is treated as a transfer of a going concern.
Accordingly:
(a) the Vendor and Purchaser shall give such notice of such transfer
to [relevant tax authority] as required by law;
(b) the Vendor shall on Completion so far as required by law deliver
to the Purchaser all records referred to in [relevant VAT
statute] and the Purchaser hereby undertakes to preserve such
records as are so delivered in such a manner for such periods as
may be required by law and, during that period, to give the
Vendor or its agents reasonable access during normal business
hours to inspect such records and (at the Vendor's expense) to
take copies of such records;
[OR]
--
(b) the Vendor shall apply for a direction pursuant to [relevant VAT
statute] permitting the retention by the Vendor of all the
records of the Business for VAT purposes referred to in [relevant
VAT statute] provided that if [relevant tax authority] require
that such records are delivered to the Purchaser, then the Vendor
shall notify the Purchaser and shall deliver the same to the
Purchaser. Whichever party retains the said records shall
preserve the records for such periods as may be required by law
and during that period shall give reasonable access during normal
business hours to the other party or its agents to inspect such
records and (at the other party's expense) to take copies of such
records;
(c) the Vendor and the Purchaser shall use all reasonable endeavours
to secure that pursuant to the provisions referred to above the
sale of the Business hereunder is treated as neither a supply of
goods nor a supply of services for VAT purposes [LOCAL COUNSEL TO
ADVISE WHETHER IT IS COMMON FOR AN APPLICATION TO BE MADE FOR
CONFIRMATION FROM THE RELEVANT TAX AUTHORITIES. IF SO, THIS
SHOULD BE REFERRED TO.];
(d) if, notwithstanding the provisions referred to above, any VAT
shall be payable in relation to the sale hereunder, the Purchaser
shall pay in cash to the Vendor an amount in respect of VAT in
addition to the consideration payable under clause 5 together
with any penalties or interest unavoidably incurred by the Vendor
as a result of late payment, provided that the Purchaser shall
make such payment in respect of VAT on the due date for payment
of such VAT by the Vendor or (if later) delivery by the Vendor to
the Purchaser of a valid VAT invoice in respect thereof provided
14
<PAGE>
that the Purchaser shall not be obliged to make such payment
until the date on which the Purchaser obtains the benefit of
credit for such amount of VAT (whether by way of deduction from
the output tax due from, or by way of payment to, the Purchaser).
(e) No re-allocation of the Vendor's VAT registration number to the
Purchaser shall be applied for.
[OR]
--
(e) The Vendor and the Purchaser shall make an application on form
[ ] for the Vendor's VAT registration number to be
reallocated to the Purchaser.
[PURCHASER'S LAWYERS INCLUDE APPROPRIATE PROVISIONS ON VAT
GENERALLY AND ANY PARTICULAR PROVISIONS RE: VAT IN RELATION TO
LAND OR PROPERTY].
9 POST-COMPLETION MATTERS (INCLUDING ANNOUNCEMENTS AND CIRCULARS)
---------------------------------------------------------------
9.1 Following Completion the Vendor shall wholly discontinue carrying on
the Business, to the intent that the Purchaser may carry on and
continue the Business in succession to the Vendor.
9.2 Forthwith after Completion the parties shall dispatch to the suppliers
and to the customers of the Business letters notifying them of the
transaction effect hereby in terms the parties reasonably agree in the
agreed form.
9.3 Notwithstanding Completion the Vendor shall from time to time execute
and do or procure to be executed and done all documents, acts and
things as may be reasonably required by the Purchaser in order
effectually to vest in the Purchaser the Business and the other assets
hereby agreed to be sold and to give to the Purchaser the full benefit
of this Agreement.
9.4 On receiving any notices, correspondence, information or enquiries in
relation to the Business and/or the assets hereby agreed to be sold
the Vendor shall as soon as reasonably practicable pass the same to
the Purchaser.
9.5 The Vendor hereby undertakes with the Purchaser to preserve all
taxation records forming part of the Statutory Records for at least
6 years from the end of the accounting reference period of the Vendor
to which they relate and all other Statutory Records for at least [12
months/[ ] years] from Completion. The Vendor shall permit, on
reasonable notice and during normal business hours, the Purchaser
and/or its agents and professional advisers (including without
limitation, its accountants) access to the Statutory Records and the
right to inspect the same and make copies thereof (at the Purchaser's
expense) for any purpose in connection with or incidental to the
Business.
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<PAGE>
9.6 The Vendor undertakes to provide all such information known to it or
which on reasonable enquiry would be known to it and which it is free
to disclose relating to the Business or otherwise as the Purchaser may
reasonably require for the purpose of complying with any requirements
of law or of any recognised stock exchange.
9.7 Subject as required by law or by the rules of any recognised stock
exchange or by any relevant national or supra-national regulatory
authorities, all announcements and circulars by or on behalf of any of
the parties hereto and relating to the sale and purchase hereunder
shall be in terms and subject to a timetable and manner of publication
to be agreed between the parties.
9.8 (a) (Subject to clause 9.8(b)) the Purchaser will procure that as
soon as reasonably practicable following Completion at the
Vendor's request all references to the name "Datapoint" and any
logos trade names or other devices incorporating that name (apart
from the Intellectual Property) are removed from (and thereafter
no longer used on or in connection with) the Leasehold[s], signs,
livery, sales or promotional literature, letterhead, documents,
packaging, signs or products of the Business.
(b) The provisions of clause 9.8(a) shall not prevent the Purchaser
from making use of or selling existing stocks of sales or
promotional literature, letterhead, documents, packaging, signs
or products of the Business provided that before the same are
used or sold the Purchaser shall cross out or mark over any
references to the Vendor or otherwise clearly indicate on them
that the Business is no longer owned or operated by the Vendor.
10 OUTSTANDING CONTRACTS, PENDING CONTRACTS, ENGAGEMENTS AND ORDERS AND
--------------------------------------------------------------------
APPORTIONMENTS
--------------
10.1 (a) The Purchaser hereby undertakes with effect from Completion to
complete and discharge in a proper and workmanlike manner all
contracts, pending contracts, engagements and orders of which the
benefit is hereby agreed to be sold to, or the burden is hereby
agreed to be assumed by, the Purchaser and shall indemnify the
Vendor against all liabilities, actions, proceedings, damages,
costs, claims, demands and expenses brought or made against or
incurred by the Vendor to the extent caused by the non-
performance or the negligent or defective performance after
Completion thereof by the Purchaser.
(b) In relation to the said contracts, pending contracts, engagements
and orders the Vendor shall indemnify the Purchaser against all
liabilities, actions, proceedings, damages, costs, claims,
demands and expenses brought or made against or incurred by the
Purchaser to the extent caused by the non-performance or
negligent or defective performance before Completion thereof by
the Vendor.
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<PAGE>
10.2 The Purchaser shall collect the Receivables as agent for the Vendor
and shall pay to the Vendor any such amounts received within 3
business days of receipt following the determination of the Net Asset
Value and the Purchaser shall be entitled to deduct from such sums any
amount owed by the Vendor to the Purchaser pursuant to clause 5.2
above.
10.3 The Vendor shall use its best endeavours to assist the Purchaser in
collecting the Receivables and hereby covenants not to contact
(whether in writing, in person or by telephonic means) the relevant
customer, its employees, servants, professional advisers or agents or
commence or threaten to commence proceedings to recover the relevant
Receivable until the later to occur of (i) 30 days following
Completion and (ii) 60 days following the due date for payment of such
Receivable and shall before so contacting such person or so commencing
or threaten to commence such recovery give 5 business days written
notice of such intention to the Purchaser who may within such period
itself pay the Receivable in question whereupon the Vendor shall
assign all right, title and interest it may have therein to the
Purchaser and the Vendor shall use its best endeavours and do all such
acts and things as are necessary on the Purchaser's request to assist
the Purchaser to recover such Receivable.
10.4 To the extent not included in the Special Accounts all rents, service
charges, rates, insurance premiums, gas, water, electricity and
telephone charges, royalties and other outgoings relating to, payable,
receivable or accruing in respect of the Business down to and
including Completion shall be borne by or, as the case may be,
accounted for to the Vendor and thereafter by or to the Purchaser and
shall, if necessary, be apportioned accordingly provided that all
outgoings specifically referable to the extent of the user of any
property or rights shall be apportioned according to the extent of
such user.
10.5 The net amount (if any) payable under clause 10.4 shall be agreed
between the parties within 14 days after Completion or failing such
agreement shall be determined by the Independent Accountants. Within
14 days after such agreement or determination or promptly following
the determination of the Net Asset Value the net amount so agreed or
determined shall be paid to the person entitled.
11 EMPLOYEES
---------
11.1 The [relevant statute implementing EC Acquired Rights Directive] ("THE
TRANSFER REGULATIONS") apply to the sale and purchase of the Business
effected by this Agreement and the following provisions shall apply:
(a) the contracts of employment between the Vendor and the Employees
(save insofar as such contracts relate to any occupational
pension scheme) shall transfer to the Purchaser with effect from
Completion [LOCAL COUNSEL TO ADVISE WHETHER APPLIES FROM
EXCHANGE] pursuant to the Transfer Regulations; and
17
<PAGE>
(b) all wages, salaries and other benefits of the Employees and all
[PAYE] tax deductions and [National Insurance] contributions
relating thereto shall be discharged by the Vendor in respect of
the period up to Completion and by the Purchaser thereafter.
11.2 The Vendor shall indemnify and keep the Purchaser indemnified from and
against all claims, demands, actions, proceedings, damages,
compensation, tribunal awards, fines, costs, expenses and all other
liabilities whatsoever to the extent that the same arise out of or are
connected with any claim or other legal recourse by:
(a) any of the Employees which and to the extent that it relates to
any actual or alleged act or omission of the Vendor or any member
of the Vendor's Group (or any other event or occurrence) prior to
Completion;
(b) any trade union or staff association recognised by the Vendor in
respect of any of the Employees which and to the extent that it
relates to any actual or alleged act or omission of the Vendor or
any Group Company (or any other event or occurrence) prior to
Completion.
11.3 The parties intend that the Transfer Regulations shall apply only to
the Employees and accordingly the Vendor undertakes to indemnify and
keep the Purchaser indemnified from and against all claims, demands,
actions, proceedings, damages, compensation, tribunal awards, fines,
costs, expenses and all other liabilities whatsoever to the extent
that the same arise under or in relation to:
(a) any contract of employment (including, without prejudice to the
generality of the foregoing the termination thereof) with; or
(b) any duty or liability of the Vendor in relation to any matter
whatsoever (whether arising before or after Completion) to,
any former or existing employee of the Vendor or any member of the
Vendor's Group who is not an Employee and which contract, duty or
liability is transferred to the Purchaser under the Transfer
Regulations or is alleged by such employee to have been so
transferred.
11.4 The Purchaser shall indemnify the Vendor and keep the Vendor
indemnified against all claims, demands, actions, proceedings,
damages, compensation, tribunal awards, fines, costs, expenses and all
other liabilities whatsoever to the extent that the same arise out of
or in connection with:
(a) any change in the working conditions of the Employees or any of
them occurring after Completion (excluding any terms relating to
any occupational pension scheme);
18
<PAGE>
(b) any claim by any Employee (whether in contract or in tort or
under statute (including the Treaty of Rome and any directives
made under the authority of that Treaty) for any remedy
including, without limitation, in respect of unfair dismissal,
redundancy, statutory redundancy, equal pay, sex or race
discrimination) as a result of any act or omission by the
Purchaser after Completion; or
(c) the employment by the Purchaser on or after Completion of any of
the Employees other than on terms (including terms relating to
any occupational pension scheme) at least as good as those
enjoyed immediately prior to Completion (provided that the
Purchaser shall be under no obligation to indemnify the Vendor
solely by reason of any diminution in pension rights if the
Purchaser has complied with its obligations under Schedule 6) or
the termination of the employment of any of them on or after
Completion.
In accordance with its obligations under the Transfer Regulations, the
Purchaser shall provide the Vendor in writing with such information
and at such time as will enable the Vendor to carry out its duties
under [Regulations 10(2)(d) and 10(6)] of the Transfer Regulations
concerning measures envisaged by the Purchaser in relation to the
Relevant Employees.
11.5 On such date as the parties may agree in writing, but in any event by
not later than Completion the parties will join in delivering to each
of the Employees a joint letter from the parties notifying them of the
transaction effected hereby in terms the parties reasonably agree.
11.6 The letters to be delivered under clause 11.5 shall be handed
personally to those Employees who are present for work on the date of
such delivery and shall be despatched by [first-class] post to those
Employees who are not so present.
12 PENSIONS
--------
The provisions of schedule 6 [and schedule 7] shall apply in relation
to the retirement benefit scheme or schemes established for the
benefit of the Employees.
13 [COMPETITION LAW COMPLIANCE]
----------------------------
[Include any requirements for notification/registration etc of
agreement under domestic laws]
14 WARRANTIES AND LIMITATIONS
--------------------------
14.1 In consideration of the Purchaser entering into this Agreement the
Vendor hereby warrants and represents to the Purchaser and to
Kalamazoo in respect of the Business:
(a) that all statements of fact in schedules 2, 3, 4 and 7 to this
Agreement are correct in all material respects; and
19
<PAGE>
(b) in terms of schedule 8, and so that any statement which is
qualified as being "to the best of the knowledge, information and
belief of the Vendor" has been so qualified after due diligent
and careful enquiry by the Vendor to establish the accuracy of
the Warranty in question.
14.2 The Vendor shall not have any liability under the Warranties in
respect of:
(a) any matter to the extent that such matter is disclosed in or
pursuant to the Disclosure Letter and the Replies or the Accounts
in a manner which would enable the Purchaser reasonably to make
an informed assessment of the matter.
(b) any matter or thing hereafter done or omitted to be done pursuant
to this Agreement or the Darts Transfer Agreement or otherwise at
the request in writing or with the approval in writing of the
Purchaser or Kalamazoo.
14.3 The Vendor acknowledges and agrees that the Purchaser has been induced
to enter into this Agreement on the basis of the Warranties and that
the Purchaser is relying on the Warranties.
14.4 The Warranties shall be deemed to be repeated immediately before
Completion (subject as provided in clauses 14.2 and 14.5 and to other
matters properly and fairly disclosed in writing by the Vendor to the
Purchaser after the date hereof and before Completion) and to relate
to the facts and circumstances then existing.
14.5 The Vendor hereby undertakes with the Purchaser that it will forthwith
disclose in writing to the Purchaser any event or circumstance which
may arise or become known to it after the date hereof and prior to
Completion may result in a material breach of any of the Warranties to
the intent that if the Vendor shall so disclose any event or
circumstance pursuant to this clause, the Purchaser shall have the
right (without prejudice to any other rights it may have) (exercisable
within 7 days of receiving such written notice as aforesaid) to
rescind this Agreement prior to Completion. Provided that no right to
damages or compensation shall arise in favour of the Purchaser or its
successors in title under clause 14.4 in consequence only of an event
occurring or matter arising after the signing of this Agreement and
before Completion constituting a breach or non-fulfilment of any of
the Warranties whether or not this Agreement is terminated in
consequence thereof, if:
(a) the event or matter in question could not reasonably have been
foreseen prior to the date of the Agreement avoided or prevented
by the Vendor; and
(b) the event or matter in question has been duly notified in
accordance with this clause 14.5.
14.6 The provisions of clauses 6.8 to 6.18 inclusive of the Umbrella
Acquisition Agreement shall have effect mutatis mutandis as if
expressly set out in the Agreement.
20
<PAGE>
15 INVESTMENT TRUSTS AND REGIONAL DEVELOPMENT TRUSTS
-------------------------------------------------
LOANS, GRANTS AND OTHER FORMS OF AID TO BUSINESSES ARE AVAILABLE FROM,
AND ADMINISTERED BY, NUMEROUS LOCAL, NATIONAL AND SUPRA-NATIONAL
BODIES. THE DRAFTSMAN SHOULD SPECIFICALLY ENQUIRE WHETHER ANY SUCH
MATTERS ARE RELEVANT TO THE TRANSACTION.
16 CONTINUING EFFECTS OF THIS AGREEMENT
------------------------------------
16.1 All provisions of this Agreement shall so far as they are capable of
being performed or observed continue in full force and effect
notwithstanding Completion except in respect of those matters then
already performed.
16.2 This Agreement shall be binding on and shall enure for the benefit of
each party's successors and assigns (as the case may be).
16.3 Subject to clause 16.4 neither the Purchaser nor the Vendor may,
without the prior written consent of the other, assign the benefit of
any rights under this Agreement.
16.4 The benefit of this Agreement (including the Warranties) shall (and
whether before or after Completion) be freely assignable by the
Purchaser to any member of the Purchaser's Group provided that if such
assignee shall cease to be a member of the Purchaser's Group any
benefit so assigned shall on such cessation be re-assigned to the
Purchaser.
17 RELEASES, ETC., BY THE PURCHASER
--------------------------------
17.1 Any liability to the Purchaser under this Agreement may in whole or in
part be released, compounded or compromised or time or indulgence
given by the Purchaser in its absolute discretion.
17.2 No exercise or failure to exercise or delay in exercising any right,
power or remedy by either party hereto shall, unless otherwise agreed
in writing by such party, constitute a waiver by that party of any
such right, power or remedy or of any other right, power or remedy
arising under this Agreement or otherwise.
18 OTHER PROVISIONS
----------------
18.1 No purported variation of this Agreement shall be effective unless
made in writing and signed by the parties hereto.
18.2 If any term or provision in this Agreement shall be held to be illegal
or unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part shall to that extent be deemed not
to form part of this Agreement, but the enforceability of the
remainder of this Agreement shall not be affected.
21
<PAGE>
18.3 This Agreement may be entered into in any number of counterparts and
by the parties to it on separate counterparts, each of which when
executed and delivered shall be an original, but all counterparts
shall together constitute one and the same instrument.
18.4 If Completion does not take place the Purchaser shall forthwith hand
over or procure the handing over of all accounts, records, documents
and papers of or relating to the Vendor which shall have been made
available to it and all copies or other records derived from such
materials and expunge any information derived from such materials or
otherwise concerning the subject matter of this Agreement from any
computer, wordprocessor or other device containing information (other
than information available from public records or information acquired
by the Purchaser otherwise than from the Vendor or its agents).
19 NOTICES
-------
19.1 Any notice or other document to be given under this Agreement shall be
in writing and shall be deemed duly given:
(a) if left at or sent by (i) registered post or (ii) facsimile
transmission to the following addresses or numbers of the
relative company:
(i) name [the Vendor ]
address [ ]
attention [ ]
facsimile no. [ ]
(2) name [the Purchaser ]
address [ ]
attention [ ]
facsimile no. [ ]
or to such other addresses and/or numbers as such parties may by
notice to all other parties hereto expressly substitute therefor;
and
(b) when in the ordinary course of the means of transmission it would
first be received by the addressee in normal business hours.
19.2 In proving the giving of a notice it shall be sufficient to prove that
the notice was left or that the envelope containing such notice was
properly addressed and posted or that the applicable means of
telecommunication was properly addressed and despatched (as the case
may be).
20 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
-----------------------------------------------------------------
20.1 This Agreement shall be governed by and interpreted in accordance with
[ ] law.
22
<PAGE>
20.2 Any disputes or claims in any way relating to or in connection with
this Agreement shall be finally settled under the Rules of Arbitration
of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules.
20.3 The place of the arbitration shall be London and the language of the
arbitration shall be English.
20.4 The Vendor hereby irrevocably authorises and appoints the Vendor's
Solicitors (or such other person, being a firm of [solicitors]
resident in [ ], as the Vendor by notice to all other parties
hereto substitute) to accept service of all legal process arising out
of or connected with this Agreement and service on the Vendor's
Solicitors (or such substitute) shall be deemed to be service on the
party concerned.
IN WITNESS whereof this Agreement has been entered into the day and year
first above written
23
<PAGE>
Schedule 1
----------
The Consideration Apportionment
-------------------------------
Paragraph reference in
schedule 2 Value in US$
- ---------- ---------
1
2
3
4
5
6
7
8
9
10
11
-----------------------
US$ [X]
-----------------------
Less the Liabilities which shall be regarded for the purposes of this
- ----
Agreement as US$ ([X]-1)
24
<PAGE>
Schedule 2
----------
Assets being sold (exclusive of assets comprised in schedules 3 and 4)
----------------------------------------------------------------------
(1) (2)
No. Assets
- --- ------
1 the goodwill of the Business and the exclusive right (so far as
the Vendor can grant the same) for the Purchaser to represent
itself as carrying on the Business in succession to the Vendor
and to use the name[s "-" [and "-"] (but only in connection with
the Business) and in particular on all business letters,
invoices, trade catalogues and advertising material relating to
the Business
2 all stock-in-trade (including, without limitation, consumables,
raw materials, components, semi-finished or finished goods or
maintenance parts) and work in progress relating exclusively or
primarily to the Business at Completion;
3 the benefit of any sums to which the Vendor is entitled from
third parties or insurers in respect of damage or injury caused
to any assets comprised in the Business, except to the extent of
sums expended prior to Completion in making good such damage or
injury
4 all manuals, drawings, patterns, designs, records (including
customer and supplier records), technical advertising, sales
specifications, publications and other material relating to or
used exclusively or primarily in connection with the Business at
Completion
5 [the following machinery and equipment [LIST] and all other
machinery and equipment relating to or used exclusively or
primarily in connection with the Business at Completion
(including, without limitation, computers and computer
peripherals and accessories)
6 all office furniture and office equipment relating to or used
exclusively or primarily in connection with the Business at
Completion [LIST?]
7 the following motor vehicles:
make and description registration number
-------------------- -------------------
[LIST]
8 any petty cash floats and advances made to Employees or
representatives
25
<PAGE>
9 [any other tangible personal property relating exclusively or
primarily to the Business [LIST]]
[other assets to be agreed]
10 the benefit of all of the Customer Contracts.
[11 the benefit of all of the following supplier contracts which relate to
the Business:
[LIST of the supplier contracts, supplier by supplier, showing
outstanding liability etc.]
The total consideration (exclusive of VAT) payable for the assets comprised
in this schedule is [B.P./US$ ] apportioned in accordance with
schedule 1.
26
<PAGE>
Schedule 3
----------
Intellectual Property Rights
----------------------------
PART A - PATENTS AND PATENT APPLICATIONS
----------------------------------------
1 Patents
=============================================================================
NORMAL OVERSEAS
COUNTRY NO. DATE EXPIRY DATE FILING SUBJECT
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
2. Patent applications
=============================================================================
NORMAL OVERSEAS
COUNTRY NO. DATE EXPIRY DATE FILING SUBJECT
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
27
<PAGE>
PART B - TRADE AND SERVICE MARKS AND TRADE AND SERVICE MARK APPLICATIONS
1. Trade and service marks
=============================================================================
COUNTRY TRADE MARK CLASS SCHEDULE RENEWAL DATE
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
2. Trade and service mark applications
=============================================================================
COUNTRY TRADE MARK CLASS SCHEDULE RENEWAL DATE
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
28
<PAGE>
PART C - REGISTERED DESIGNS AND REGISTERED DESIGN APPLICATIONS
--------------------------------------------------------------
"PETTY PATENTS" "UTILITY MODELS"
--------------------------------
1. Registered designs
=============================================================================
COUNTRY TRADE MARK CLASS SCHEDULE RENEWAL DATE
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
2. Registered design applications
=============================================================================
COUNTRY TRADE MARK CLASS SCHEDULE RENEWAL DATE
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
29
<PAGE>
PART D - BUSINESS NAMES AND UNREGISTERED TRADE OR SERVICE MARKS
---------------------------------------------------------------
=============================================================================
NAME OR MARK AREA OF USE NATURE AND EXTENT OF USE
=============================================================================
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
30
<PAGE>
Schedule 4
----------
Agreements and licences
-----------------------
PART A - LICENCES IN RESPECT OF INTELLECTUAL PROPERTY RIGHTS
------------------------------------------------------------
=============================================================================
(1) (2) (3) (4) (5) (6)
LICENSOR LICENSEE DATE OF TERM LICENCE SUBJECT
LICENCE FEE MATTER
=============================================================================
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
PART B - THE LEASING AGREEMENTS
=============================================================================
(1) (2) (3) (4) (5) (6)
LICENSOR LICENSEE DATE OF TERM LICENCE SUBJECT
LICENCE FEE MATTER
=============================================================================
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
=============================================================================
PART C - CUSTOMER CONTRACTS
[LIST HERE DETAILS OF ALL CUSTOMER CONTRACTS]
---
31
<PAGE>
Schedule 5
----------
Assets excluded from the sale
-----------------------------
1 The Receivables and the benefit of all securities, guarantees,
indemnities and other similar rights in respect of the same
2 Any cash in hand (except as mentioned in paragraph 8 of schedule 2) or
credited to any account with a bank.
3 The benefit of all agreements which are not assignable or of which a
purported assignment would be a breach or would constitute an event of
default or termination.
4 All other assets of the Vendor not hereby expressly agreed to be sold
and in particular all assets of the Vendor not exclusively or
primarily referable to the Business.
5 All contracts relating to the supply or support of Autoline.
6 All rights of the Vendor or any member of the Vendor's Group to the
use of the word "Datapoint" whether in relation to the Business or
otherwise.
7 The benefit of any claim made by the Vendor for grants from any
government, local or public authority not received prior to
Completion.
8 The benefit of any claim made by the Vendor under any insurances
arising or accruing prior to Completion.
32
<PAGE>
Schedule 6
----------
Pension arrangements
--------------------
[To be considered further on receipt of relevant information from
Datapoint]
33
<PAGE>
Schedule 7
----------
The Employees
-------------
34
<PAGE>
Schedule 8
----------
Warranties and Representations
------------------------------
1 ACCOUNTS AND FINANCIAL MATTERS
------------------------------
(a) To the extent only that the Accounts relate to the Business, the
Accounts:
(i) were prepared in accordance with the requirements of the [name
relevant legislation in relevant country] as at the date of their
preparation;
(ii) were prepared in accordance with all then current statements of
standard accounting practice applicable to a company incorporated
in [name of country] as at the date of their preparation and were
prepared in accordance with the historical cost convention, on a
recognised and consistent basis and on the same basis and in
accordance with the same accounting policies as the corresponding
accounts for the preceding [2] financial years;
(iii) give a true and fair view of the assets and liabilities of
the Vendor as at the Accounts Date and its [profit/loss] for
the financial year ended on that date;
(iv) were accurate in all material respects as at the date of their
preparation; and
(v) made full provision for all established liabilities or made
proper provision for (or contain a note in accordance with good
accounting practice respecting) all liabilities which would
normally be provided for or noted at the Accounts Date, including
(without limitation) for the cessation or diminution of any part
of the Business and deferred taxation.
(b) Without limiting paragraph 1(a) above:
(i) provision has been made in the Accounts in accordance with the
accounting policies set out in the Accounts:
(A) for depreciation of fixed assets;
(B) in valuing work-in-progress and stock, for reasonably
foreseeable losses which may arise on completion or
realisation;
(C) for reasonably foreseeable liabilities in relation to the
disposal of any assets or the cessation or diminution of any
part of the Business; and
(D) for any bad or doubtful debts,
(ii) the cost allowable for taxation purposes of any of the assets or
trade stock agreed to be sold hereunder is not lower than that
appearing in the Accounts;
(iii) stock and work-in-progress have [respectively] been valued in the
Accounts [at the lower of cost and net realisable value - OR AS
APPROPRIATE].
(c) The accounting and other books and records of the Vendor have been
properly written up in all material respects and accurately present
and reflect in all material respects in accordance with generally
accepted accounting principles and standards all the transactions
entered into by the Vendor in relation to the Business during the
financial period ended on the Accounts Date.
35
<PAGE>
(d) No part of the Business has been materially and adversely affected by
the loss during the year ended on the Accounts Date of any important
customer or source of supply, by a decrease in the value of orders
received or by any abnormal factor not affecting similar businesses to
a like extent.
(e) The Vendor in relation to the Business has not factored any of its
debts or engaged in financing of a type which would not require to be
shown or reflected in the Accounts.
(f) [All documents relating to the Business in the possession of the
Vendor or to the production of which the Vendor is entitled and which
attract stamp duty or transfer duty have been duly stamped.] [European
Counsel please advise whether necessary.]
(g) The Deferred Income shown in the Special Accounts will be a correct
figure and will not include any amounts received by the Vendor prior
to Completion.
2 STOCK
-----
(a) All stock and work in progress comprised in the assets hereby agreed
to be sold are the property of and held by the Vendor free from any
agreement for payment on deferred terms or bill of sale or lien,
mortgage, charge, encumbrance, burden or other adverse claim.
(b) So far as the Vendor is aware, the stock hereby agreed to be sold is
good marketable stock and is capable of being sold in the ordinary
course of business in accordance with the current price list without
rebate or allowance to a purchaser and such stock is not, to a
material extent, old, obsolescent, slow-moving, unusable, unsaleable,
deteriorated or excessive.
3 PLANT AND EQUIPMENT
-------------------
(a) The fixed and loose plant, machinery, furniture, fixtures, fittings,
equipment and vehicles agreed to be sold hereunder are the property of
and held by the Vendor free from any hire or hire-purchase agreement
or agreement for payment on deferred terms or bill of sale or lien,
mortgage, charge, encumbrance, burden or other adverse claim.
(b) Maintenance contracts are in full force and effect in respect of all
assets owned or used in relation to the Business which it is normal or
prudent for business of the same kind as the Business to have
maintained by outside or specialist contractors.
(c) So far as the Vendor is aware, all plant, machinery, vehicles and
equipment agreed to be sold hereunder is in good and safe condition
and in working order, has been maintained on a regular basis by
competent personnel and, so far as the Vendor is aware, none is
dangerous, unsuitable, in need of renewal or replacement or surplus to
requirements.
[European counsel please advise whether warranty required concerning
taxation allowances/clawbacks on leased or other assets].
4 MATERIAL TRANSACTIONS
---------------------
(a) Since the Accounts Date:
(i) the Vendor has not created any mortgage or charge on the whole of
its assets or any of the assets to be sold hereunder now
outstanding;
36
<PAGE>
(ii) the Vendor has entered into material transactions and incurred
material liabilities in relation to the Business in the ordinary
course of day-to-day trading operations and not otherwise;
(iii) so far as the Vendor is aware, the assets of the Business have
not been materially depleted by any unlawful act on the part of
any person;
(iv) there has been no materially adverse change in the financial or
trading position of the Business and the Business has been
carried on in the ordinary course and in the same manner
(including nature and scale) as immediately before the Accounts
Date;
(v) no transaction in relation to the Business of any material
importance to which the Vendor has been a party has taken place
which if it had taken place on or before the Accounts Date would
have been required to be disclosed or reflected in the Accounts.
5 EMPLOYEES
---------
(a) Full and up-to-date particulars of the identities of all the
Employees, their dates of birth and commencement of employment, their
remuneration (including any binding agreements and arrangements
relating to bonus, commission, incentive payments, profit sharing,
stock options, permanent health insurance, medical expenses insurance,
life assurance, pension benefits and retirement annuities), their
notice periods and any binding agreements and arrangements for the
payment of compensation on termination of employment are disclosed in
or pursuant to the Disclosure Letter.
(b) The Vendor has disclosed to the Purchaser true and complete examples
of all current standard form contracts of employment relating to the
employment of the Employees and of all contracts of employment of
Employees whose basic salary exceeds $50,000 per annum (or its
equivalent).
(c) The Vendor has not made any offer to employ any person in the Business
which has yet to be accepted or rejected.
(d) There are no Employees who are on maternity leave or other leave of
absence and have a statutory or contractual right to return to work in
the Business.
(e) The Vendor has not agreed any future variations in the terms or
conditions of employment of any of the Employees and there are no
offers in relation thereto outstanding.
[EITHER]
------
(f) The Disclosure Letter contains full particulars of any existing
litigation or dispute involving or relating to any of the Employees
and of all matters and circumstances of which the Vendor is aware
which could give rise to any legal claim, right of action or other
liability whatsoever in respect of any of them.
[OR]
--
(g) There is no existing litigation or dispute involving or relating to
any of the Employees and so far as the Vendor is aware there are no
matters or circumstances which are likely to give rise to any such
litigation or dispute.
(h) The Vendor does not recognise (expressly or impliedly) any trade
union, staff association or other body in respect of all or any of the
Employees and there are no collective agreements or arrangements with
any such trade union, staff association or other body which relate to
the Employees.
37
<PAGE>
(i) There is no existing or (so far as the Vendor is aware) threatened
industrial action or trade dispute involving or relating to the
Employees.
(j) There are no outstanding liabilities for industrial training levy or
for any other statutory or governmental levy or charge.
6 CONTRACTS, COMMITMENTS AND FINANCIAL AND OTHER ARRANGEMENTS
-----------------------------------------------------------
(a) With respect to the undischarged contracts, engagements and orders and
licences referred to in clause 10.1;
(i) true, up-to-date and complete copies of such contracts,
engagements and orders and licences have been [made available for
inspection] to the Purchaser [or its agents];
(ii) none of such contracts, engagements or orders or licences is
likely to be incapable of being discharged by performance within
3 months from the date hereof or is incapable of termination by
the Vendor on 3 months' notice or less and none of such
contracts, engagements or orders or licenses involves obligations
which cannot be fulfilled or performed on time or without undue
or unusual expenditure of money or effort;
(iii) the Vendor has not committed any material breach of any such
contract, engagement or order or licence and so far as the Vendor
is aware no right of termination has become exercisable
thereunder;
(iv) so far as the Vendor is aware none of such contracts[,
engagements or orders] or licences infringes or is furnished,
registered or notified or ought to be furnished, registered or
notified in accordance with [local competition law statutes] or
any of the Treaties establishing the European Economic Community
or any directive or regulation thereunder or any other anti-trust
or similar legislation made anywhere in the world and the Vendor
is not in default or in contravention of any of such provisions
in relation to the Business.
(b) In relation to the Business, so far as the Vendor is aware, there are
no material liabilities in respect of any claims arising out of any
defect in the design, material or workmanship of any goods
manufactured or supplied by the Vendor before Completion or out of any
error, delay, omission or other cause for complaint in the supply of
any service before Completion and in relation to the Business and so
far as it is aware, the Vendor is not under any material liability:
(i) for breach of any contract for the supply of any goods or
services;
(ii) to replace or to remedy defects in the design, material or
workmanship of goods or to make good errors or omissions in
services supplied or contracted to be supplied under any such
contract;
(iii) to service, repair, maintain, take back or otherwise do or
not do anything in respect of goods which would apply after
such goods have been delivered in circumstances where such
goods cannot be returned to the manufacturer for replacement
without cost and/or reimbursement in full or in part of the
purchase price.
38
<PAGE>
7 LITIGATION
----------
(a) The Vendor is not in relation to the Business engaged in any capacity
in any litigation, arbitration, prosecution or other legal proceedings
or in any proceedings or hearings before any statutory or Governmental
body, department, board or agency; the Vendor is not aware that such
matters are pending or threatened; and the Vendor is not aware of any
circumstances which may give rise to any such matter.
8 [EUROPEAN COUNSEL TO ADVISE ON RELEVANT PENSIONS WARRANTIES]
9 THE PROPERTY AND OTHER INTERESTS IN LAND
----------------------------------------
(a) The Leasehold[s] is/are the only property used in connection with the
Business
(b) The Vendor has the right to grant the Property Licence [in relation to
the Leasehold[s]].
(c) The Vendor has vacant possession of the Leasehold[s] vested in it and
there are no circumstances known to the Vendor which would entitle or
require any landlord or any other person to exercise any powers of
entry or right to forfeiture or right to take possession or which
would otherwise restrict or terminate the continued sole and exclusive
possession or occupation of the Leaseholds by the Vendor prior to
Completion and (subject to the Property Licence) after Completion.
(d) So far as the Vendor is aware no person is entitled to any right over
or interest in or any right of pre-emption, first refusal, surrender
or determination relating to the Leasehold[s] which could take effect
against the Property Licence and any options or rights enjoyed by the
Vendor have been properly protected by the appropriate registration
where necessary and all appropriate notices have been properly served
where any such option or right has become exercisable.
(e) So far as the Vendor is aware, there is no covenant, stipulation,
restriction, easement, right of way, exception, reservation, grant,
condition, agreement or declaration which has a material adverse
effect on the Leasehold[s] or its use save as set out in the Property
Licence nor is the Vendor aware of any subsisting or alleged breach of
any of the said matters.
(f) The Vendor has paid all rent or licence fees and all other outgoings
which have become due in respect of the Leaseholds and has so far as
it is aware performed and observed all its obligations under all
covenants (whether affecting the [Leaseholds'/leasehold] titles),
conditions, agreements, statutory requirements, planning consents,
byelaws, orders and regulations affecting the Leasehold[s], its use
and the Business as there carried on; no notice of any breach of any
such matter has been received by the Vendor; and so far as the Vendor
is aware no use of the Leasehold[s] contravenes any of such covenants,
conditions, agreements, statutory requirements, planning consents,
byelaws, orders or regulations.
(g) So far as the Vendor is aware is as of right or is permitted under the
[European counsel to include relevant planning statutes] and the
Vendor has received no notice of any contravention of any of the
provisions of those statutes or any outstanding [Enforcement Notices,
Stop Notices, Enforcement Proceedings] or appeals (whether against
refusal, deemed or otherwise, conditions or enforcement); and the user
will not be adversely affected by planning proposals or schemes
submitted by the Vendor or of which the Vendor is aware nor is any
user stated to be personal.
(h) So far as the Vendor is aware it has not at any time on the
Leasehold[s] carried on or permitted to be carried on any process
which has:
(i) caused any material damage to any land or buildings or any
interest thereon; or
39
<PAGE>
(ii) contravened any relevant legislation or regulations relating to
environmental matters.
(iii) The Vendor has not received notice of nor is it aware of any
dispute relating to the Leasehold[s].
10 ENVIRONMENTAL MATTERS
---------------------
(a) [European counsel to advise on appropriate environmental warranties].
11 INTELLECTUAL PROPERTY RIGHTS
----------------------------
(a) Complete particulars of all Intellectual Property Rights used
exclusively or primarily in relation to the Business of which the
Vendor is, or has applied to be, registered as proprietor in
connection with the Business are set out in schedule 3.
(b) All Intellectual Property Rights used or required for the running of
the Business are in full force and effect and are vested in and
beneficially owned by the Vendor free from and clear of any
restrictions or encumbrances or the Vendor has a right to use the
same; (where registration is possible) the Vendor is registered as
proprietor thereof; and, to the best of the information, knowledge and
belief of the Vendor, no person has made any material claim adverse to
the continuing enjoyment by the Vendor of the benefit of such
registration which remains outstanding.
(c) So far as the Vendor is aware, the Vendor in relation to the Business
has not infringed the Intellectual Property Rights of any other person
and to the best of the information, knowledge and belief of the Vendor
no other person has infringed the Intellectual Property Rights of the
Vendor in relation to the Business.
(d) The Vendor has not granted, and is not obliged to grant, any licences
under any Intellectual Property Rights owned by it or licensed to it
in relation to the Business or to furnish know-how relating to the
Business to any person except to customers in the ordinary course of
business.
(e) No material disclosure has been made to any person other than the
Purchaser of any of the know-how or the financial or trade secrets of
the Vendor in relation to the Business except properly and in the
ordinary course of business and on the footing that such disclosure is
to be treated as being of a confidential nature.
12 MISCELLANEOUS
-------------
12.1 The Vendor is empowered and duly qualified to carry on business in all
jurisdictions in which the Business is now carried on.
12.2 The Vendor has not in carrying on the Business committed or omitted to
do any act or thing, the commission or (as the case may be) the
omission of which is a contravention of any applicable law, order or
regulation and which has had or could have a material adverse effect
on the Business.
12.3 All facts disclosed in the Disclosure Letter is true and accurate in
all material respects.
12.4 The Vendor:
(a) has not been adjudged insolvent or committed an act of insolvency
or compounded with its creditors generally;
(b) will only continue with Autoline business for the purpose of
completing Autoline contracts entered into prior to today's date;
and
(c) has met all of its debts and liabilities arising prior to
Completion in such timely fashion as to prevent any Insolvency
Event.
12.5 The Vendor in relation to the Business is not and never has been in
receipt of aids that are incompatible with the common market as
defined in Article 4(c) of the ECSC Treaty or Article 92(1) of the
ECSC Treaty.
40
<PAGE>
SIGNED by ......................... )
................................... )
for and on behalf of the )
Vendor in the presence of: )
SIGNED by ......................... )
................................... )
for and on behalf of the )
Purchaser in the presence of: )
41
Exhibit 4
AGREEMENT FOR SALE OF "DARTS" SOFTWARE
--------------------------------------
Agreement made this 28th day of May, 1996 by and among DATAPOINT
CORPORATION, a Delaware corporation having its principal place of business
at 8400 Datapoint Drive, San Antonio, Texas 78229, United States of America
("DP"); DATAPOINT DEUTSCHLAND GmbH, a company organized under the laws of
the Federal Republic of Germany and having its principal place of business
at Hauptverwaltung, Martin-Behim-Strasse 12, D-63263 Neu-Isenburg, Federal
Republic of Germany ("DP-Germany") and each of the other affiliates of
Datapoint Corporation listed on Schedule A hereto (together with DP-
----------
Germany, the "Affiliates") (DP and the Affiliates hereinafter referred to
as "Sellers"); KALAMAZOO COMPUTER GROUP plc, Company No. 100591, a company
organized under the laws of England, having its registered office at Mill
Lane, Northfield, Birmingham, England B31 2RW (the "Guarantor"); KALAMAZOO
INVESTMENT plc, Company No. 3156697, a company organized under the laws of
England, having its registered office at Mill Lane, Northfield, Birmingham,
England B31 2RW ("Kalamazoo") and the company listed on Schedule B hereto
----------
(Kalamazoo and such company hereinafter collectively referred to as the
"Purchasers").
<PAGE>
RECITALS
--------
Sellers possess and desire to sell to Purchasers, and Purchasers
desire to purchase from Sellers, certain Assets (as defined herein), for
the consideration and on the terms and conditions set forth in this
Agreement.
The Guarantor has agreed to guarantee the performance by
Kalamazoo of its obligation under this Agreement on the terms referred to
in Article 9 below.
This Agreement is being entered into pursuant to a certain
Umbrella Acquisition Agreement, dated the date hereof, by and the
Guarantor, Kalamazoo and DP (the "Umbrella Acquisition Agreement") and is
intended to implement that portion of the transaction described in the
Umbrella Acquisition Agreement which relates to the Assets described
herein.
ARTICLE 1
---------
DEFINITIONS
As used herein, the following terms shall have the following
meanings:
1.1 "Assets" shall mean and include the following:
------
1.1.1 The application software programs comprising the
system for use in Ford automobile dealerships and presently known as
"DARTS", including all object codes, source codes, specifications and
algorithms which are part thereof or
-2-
<PAGE>
related thereto, and all modifications, developments, enlargements,
alterations, updates, releases and versions of or to such programs, all as
in existence on the date hereof (collectively, the "Software"), as more
fully identified in Exhibit 1.1.1 annexed hereto;
-------------
1.1.2 The description of the Software, technical
specifications, user manuals, operating manuals, process definitions and
procedures maintained and/or used and/or distributed to customers by
Sellers in connection with the design, maintenance, support, modification,
enhancement and/or utilization of the Software (collectively, the
"Documentation");
1.1.3 All preparatory or development work papers,
tapes, disks, compact disks, flow charts, diagrams, listings, documents,
manuals, development materials, design materials, promotional materials and
other physical items containing or storing or recording any information
relating in any way to the Software or any part thereof including but not
limited to the Documentation (collectively, the "Materials") but the Assets
shall not include any information contained in such physical items which
does not relate to the Software, which information shall be held in
strictest confidence by Purchasers;
1.1.4 All of the following related to the Software and
Materials: all technology, know-how, trade secrets, confidential
information, patents, patent rights, service marks, trademarks, trademark
rights and copyrights (including vested,
-3-
<PAGE>
contingent and future rights in the Software), all other intellectual
property rights conferred under the laws of any jurisdiction in the world
for the full term thereof including any rights of extension or renewal, the
right to apply for any protection in any jurisdiction in the world in
respect of the Software, and all past, present and future claims for
misappropriation or infringement of such rights (collectively, the
"Intellectual Property Rights") but the Assets shall not include the
trademark "Datapoint" or any other marks or intellectual property owned or
controlled by Sellers or any technology, know-how, trade secrets or
information not specifically relating to the Software, all of which shall
be held in strictest confidence by Purchasers;
1.1.5 All rights to sell, use, market, supply and
support the Software in the Territory (the "Marketing Rights"); and
1.1.6 The goodwill of Datapoint in relation to the
Software.
ARTICLE 2
---------
PURCHASE OF ASSETS
Effective upon satisfaction of the conditions precedent to
Completion (as such term is defined in the Umbrella Acquisition Agreement)
other than those specified in Section 2.1(e) of that Agreement (the "Non-
DARTS Conditions") and subject
-4-
<PAGE>
to the terms and conditions herein set forth,
2.1 Purchase of Assets. Each Seller sells, assigns, conveys,
------------------
transfers and delivers to Purchaser, and each Purchaser purchases and
acquires, all right, title and interest in and to the Assets so transferred
by such Seller, free and clear of any liens, pledges, security interests,
claims or encumbrances of any kind, except for the rights claimed by Ford
with respect to certain modules (the "Ford Claims") and the rights of
customers, distributors and other third parties set forth in certain
agreements (the "Disclosed Agreements") entered into in the ordinary course
of Sellers' business (the Ford Claims and the Disclosed Agreements are
listed on Exhibit 2.1 hereto and are hereinafter referred to as "Permitted
-----------
Encumbrances").
2.2 Instruments of Assignment. The sale, assignment, conveyance
-------------------------
and transfer of the Assets to Purchasers, as herein provided, shall be
confirmed upon Completion by execution and delivery by each Seller of all
such bills of sale, endorsements, assignments, consents and other good and
sufficient instruments of transfer and conveyance as shall be reasonably
requested by Purchasers and their counsel and shall be in form and
substance so as to vest in Purchasers all right, title and interest in and
to the Assets, subject only to the Permitted Encumbrances.
2.3 The Purchase Price. As consideration for the Assets and the
------------------
covenants of the Sellers set forth herein, Purchasers shall, upon
satisfaction of the Non-DARTS Conditions,
-5-
<PAGE>
pay the aggregate sum of Thirty-One Million, Five Hundred Thousand United
States Dollars (US $31,500,000) (the "Purchase Price"). The Purchase Price
shall be apportioned as set out in Exhibit 2.3 hereof and shall be paid to
-----------
the Sellers by the Purchasers by a wire transfer of immediately available
funds and shall otherwise be paid in accordance with the written
instructions provided by Sellers.
2.4 Sales Taxes. Any sales, use or other similar tax which may
-----------
arise as a result of the sale by Sellers to Purchaser of the Assets shall
be the responsibility of Purchaser and will be paid in accordance with each
Template Agreement (as defined in the Umbrella Acquisition Agreement).
ARTICLE 3
---------
SELLERS' REPRESENTATIONS AND WARRANTIES
Sellers hereby jointly and severally represent and warrant to the
Purchasers as follows:
3.1 Organization and Good Standing. Each Seller is a
------------------------------
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized.
3.2 Corporate Authority. Each Seller has full authority to
-------------------
execute and to perform this Agreement in accordance with its terms; the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby does not
-6-
<PAGE>
and will not result in a breach, violation or default or give rise to an
event which, with the giving notice or after the passage of time, would
result in a breach, violation or default of any of the terms or provisions
of such Seller's Certificate of Incorporation, as amended, By-Laws or other
charter or organizational documents or of any judgment or decree or of any
indenture, agreement, or other instrument or restriction to which such
Seller is a party or by which such Seller or any of the Assets may be bound
or affected; the execution and delivery of this Agreement and all
transactions contemplated hereby have been duly authorized by all requisite
corporate or other action on the part of such Seller and no further
authorization or approval, whether of the shareholders or directors of such
Seller or governmental bodies or otherwise, is necessary in order to enable
such Seller to enter into and perform the same; and this Agreement
constitutes a valid and binding obligation enforceable against each Seller
in accordance with its terms.
3.3 Title to Assets. Except for the Permitted Encumbrances,
---------------
3.3.1 All Intellectual Property Rights included in the
Assets are vested in and beneficially owned by one of the Sellers and
(where registration has been made) at least one of the Sellers is
registered as the owner thereof.
3.3.2 None of the Assets is subject to any easements,
restrictions, mortgages, liens, pledges, charges or
-7-
<PAGE>
encumbrances of any kind or nature whatsoever.
3.3.3 Sellers' use of the Assets does not contravene
any applicable law or ordinance or any administrative regulation in any
jurisdiction or violate any agreement or understanding between Seller and
any third party, the enforcement of any of which (whether individually or
in the aggregate) would result in any material liability to the Sellers
(viewed collectively) or would in any material respect interfere with or
prevent the present and continued use of the Assets for the purpose for
which they are now being used or would materially affect the value thereof.
3.4 Completeness of Rights. Except for the Permitted
----------------------
Encumbrances,
3.4.1 Other than the Assets transferred to Purchasers
pursuant to this Agreement, there are no inventions, licenses, patents,
patent applications, trademarks, copyrights, trademark or copyright
applications or registrations, or other intellectual property rights
pending or existing, relating to the Software owned by or registered in the
name of any Seller or in which any Seller has any rights;
3.4.2 Subject to the Permitted Encumbrances, the
Assets include all such inventions, patents, licenses, trademarks,
tradenames and copyrights, existing or pending, and all other rights
necessary in order to conduct the operation, maintenance and development of
the Software in substantially the
-8-
<PAGE>
manner heretofore conducted;
3.4.3 Subject to Section 5.2, the Documentation
includes all information required to permit a reasonably competent computer
operator to maintain, support, modify or enhance the Software and to
operate the Software so as to cause it to perform in accordance with the
specifications therefor.
3.4.4 None of the Sellers has granted or furnished,
nor is any Seller obliged to grant or furnish, any licenses under any
Intellectual Property Rights or any know-how included in the Assets to any
person, except to the extent provided in the Disclosed Agreements.
3.4.5 No material disclosure has been made to any
person other than the Purchasers of any of the know-how or the financial or
trade secrets of the Sellers included in or related to the Assets except in
the ordinary course of business and on the basis that such disclosure is to
be treated as being of a confidential nature.
3.4.6 The programs comprised in the Software and the
Materials are original works, produced exclusively for the benefit of the
Sellers by persons working in the course of their employment with the
Sellers or, as the case may be, in the course of providing their services
to the Sellers on terms such that the Intellectual Property Rights in
respect thereof were to be exclusively owned by the Sellers, subject to any
interests of
-9-
<PAGE>
such persons which (a) are not waivable or transferable under the laws of
the jurisdiction in which such work was performed and (b) if asserted will
not (individually or in the aggregate) have a material adverse effect on
Purchasers right and ability to exploit or utilize the Assets (the "Non-
Transferable Rights").
3.4.7 No other person has made any claim of authorship
or ownership of or any right to use the Software and/or Materials.
3.4.8 Subject to the rights of third parties reflected
in the Permitted Encumbrances, the use by the Purchasers or any person
authorized by it of any of the Software and/or Materials will not infringe
the Intellectual Property Rights or other rights of any other person.
3.4.9 The Software and/or Materials are not and have
not been the subject of any pending or, to the best of Sellers' knowledge
and belief, threatened proceedings for any reason whatsoever, nor to the
best of Sellers' knowledge and belief are there any facts or matters which
could reasonably be expected to give rise to any such proceedings.
3.4.10 Each module of the Software will provide the
features and functions set out in and will fulfill in all material respects
the performance criteria specified in the Materials.
3.4.11 The Sellers are not aware of any material
defects, bugs or faults in the Software nor has any
-10-
<PAGE>
Seller received any notification from any customer of the Sellers that the
Software is materially failing to perform in accordance with the customer's
requirements.
ARTICLE 4
---------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchasers hereby jointly and severally represent and warrant
to Sellers as follows:
4.1 Organization and Good Standing. Kalamazoo is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized.
4.2 Corporate Authority. Kalamazoo has full authority and power
-------------------
to execute and to perform this Agreement in accordance with its terms; the
execution and delivery of this Agreement and consummation of the
transactions contemplated hereby will not result in a breach, violation or
default or give rise to an event which, with the giving of notice or after
the passage of time, would result in a breach, violation or default of any
of the terms or provisions of such Purchaser's Certificate of Incorporation
or By-Laws or other charter or organizational documents or of any other
indenture, agreement, judgment, decree or other instrument or restriction
to which Kalamazoo is a party or by which Kalamazoo may be bound; the
execution and delivery of this Agreement and consummation of the
transactions contemplated
-11-
<PAGE>
hereby have been duly authorized by all requisite corporate action on the
part of Kalamazoo and no further authorization or approval, whether of the
shareholders or directors of Kalamazoo or governmental bodies or otherwise,
is necessary in order to enable Kalamazoo to enter into and perform the
same; and this Agreement constitutes a valid, enforceable obligation of
Kalamazoo.
-12-
<PAGE>
ARTICLE 5
---------
ADDITIONAL COVENANTS
5.1 Delivery of the Source Code and Other Materials. Upon
-----------------------------------------------
Completion or as soon thereafter as reasonably practicable:
5.1.1 Sellers shall each deliver to CBA Nederland BV
(an affiliate of Kalamazoo and hereafter referred to as "CBA-BV") or such
other location as may be reasonably requested by the Purchasers at least
one complete copy of all the source code and object code for: (a) the
Software running on the RMS platform for installation on an ALR computer
(available as Datapoint 5600, 5800 or 5900) to be supplied by CBA-BV or an
affiliate and (b) the Software running on the DOS platform for installation
on a computer approved by DP as capable of running the DOS operating
system, which computer will be supplied by CBA-BV or an affiliate.
5.1.2 Sellers shall each deliver to CBA-BV or such
other location as may be reasonably requested by the Purchasers all other
items and information they possess or control which may comprise the Assets
(including any other source code or object code comprising the Software not
delivered pursuant to Section 5.1.1 above), including all existing,
proposed or expired license and maintenance agreements respecting the
Software, and all lists of current, past or prospective customers for the
Software; and
-13-
<PAGE>
5.1.3 Sellers shall each deliver duly executed
assignments in such form as may be reasonably requested by Purchasers in
respect of the Intellectual Property Rights in the Software.
5.2 Reduction to Tangible Form. To the extent that any aspect
--------------------------
of the Software is not in written or other fixed forms at Completion and is
reasonably required to be disclosed in such form for the purpose of using,
marketing or supporting the Software, Sellers shall each forthwith
following Completion reduce that aspect of the Software to such written or
other fixed form as the parties may agree and deliver the same to CBA-BV or
such other location as may be reasonably requested by the Purchasers.
5.3 Hardware Maintenance and DP Proprietary Software Services.
----------------------------------------------------------
The parties are executing on the date hereof a certain Hardware Maintenance
Agreement and a certain Software License Agreement. Except for the
services specified in such agreements and to Section 5.4 hereof, Sellers
shall have no obligation to assist or consult with Purchasers with respect
to their use of the Assets.
5.4 Further Assurances. Upon and after Completion, Sellers
------------------
without further consideration, shall each (and shall use their respective
best efforts to cause any third party to) execute and perform all such
further acts, deeds, documents and things in such manner and at such
locations as may be reasonably
-14-
<PAGE>
necessary to vest in Purchasers good and marketable title to the Assets and
otherwise to effectuate the terms of this Agreement. Without prejudice to
the generality of the foregoing,
5.4.1 Sellers shall render all necessary assistance to
Purchaser in prosecuting any application for protection of the Software in
the Territory which may be made in respect of any of the Software and shall
execute all documents, forms and authorizations and depose to or swear any
declaration or oath reflecting the terms of this Agreement which may be
required by any appropriate officer or body in any relevant jurisdiction
for this purpose.
5.4.2 Sellers, on the one hand, and Purchaser, on the
other hand, shall cooperate with each other fully with respect to actions
required or requested to be undertaken with respect to tax audits,
administrative actions or proceedings, litigation and any other matters
that may occur after the date hereof with respect to the Software, shall
maintain and make available to each other at reasonable times and upon
reasonable notice all corporate, tax and other records with respect to the
Software reasonably required or requested in connection with such matters
and shall permit such party to make copies or abstracts thereof, provided
that such access shall not unduly interfere with the day-to-day operations
of the party in possession of such books and records and that all
information made available by any party shall only be used for the specific
purpose requested and shall otherwise be held in confidence.
-15-
<PAGE>
5.4.3 As security for the performance by the parties
of their respective obligations to effectuate this Agreement, if any party
shall have failed following 14 days notice from another party to execute
any document or to perform any act required to effectuate the terms of this
Agreement, the party which has given such notice shall have the right to do
so in place of the notified party as the lawfully appointed attorney-in-
fact of such notified party. Each party undertakes and warrants that such
party shall confirm and ratify and be bound by any and all of the actions
of the party acting pursuant to this clause. The power of attorney granted
by the foregoing sentence is a special power of attorney coupled with an
interest and shall be irrevocable.
5.5 Brokerage. Purchaser and Sellers represent and warrant to
---------
each other that all negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Sellers directly
with Purchaser and without the intervention of any person or entity and
that no commission or finder's fee is owing to any person or entity. Each
of the parties agrees to indemnify the other party in the event of the
breach by such party of the foregoing representation and warranty.
-16-
<PAGE>
ARTICLE 6
---------
INDEMNIFICATION
6.1 Survival of Representation and Warranties. The
-----------------------------------------
representations and warranties of Sellers and Purchaser contained in this
Agreement shall survive the execution and delivery of this Agreement but
only until the second anniversary of Completion. Any claim arising from
the breach or alleged breach of any such representation or warranty shall
be deemed waived if not asserted prior to such second anniversary date.
6.2 Sellers' Indemnity. Subject to Section 6.3 hereof, Sellers
------------------
hereby jointly and severally agree to indemnify, defend and hold Purchasers
harmless from and against any and all demands, claims, actions or causes
of action (collectively, "Claims") and any and all liabilities, losses,
damages, costs and expenses, including reasonable attorneys' fees and
expenses (collectively, "Damages") of any nature, whether absolute,
contingent or otherwise, made upon or incurred by Sellers and based upon or
resulting from:
6.2.1 Any misrepresentation, breach of any
representation or warranty, or non-fulfillment of any covenant or agreement
on the part of any Seller contained in or made pursuant to this Agreement
or any Exhibit or Schedule hereto or in any statement or certificate or
other instrument or agreement furnished or to be furnished to Purchasers
pursuant hereto or in
-17-
<PAGE>
connection with the transactions contemplated hereby; and
6.2.2 The ownership and use of the Assets by Sellers
prior to Completion.
6.3 Purchaser's Indemnity. Purchasers hereby jointly and
---------------------
severally agree to indemnify, defend and hold harmless Sellers from and
against any and all Claims and any and all Damages made upon or incurred by
Purchasers and based upon or resulting from:
6.3.1 Any misrepresentation, breach of any
representation or warranty or non-fulfillment of any covenant or agreement
on the part of Purchaser contained in or made pursuant to this Agreement or
any Exhibit or Schedule hereto or in any statement or certificate or other
instrument or agreement furnished or to be furnished to Sellers pursuant
hereto or in connection with the transactions contemplated hereby; and
6.3.2 The ownership and use of the Assets by
Purchasers after Completion, unless Sellers are required to indemnify
Purchasers for such Claims or Damages pursuant to Section 6.2.1 hereof.
6.4 Construction of Representations. Each of the warranties
-------------------------------
shall be construed separately and independently from the others so that
Sellers or Purchasers (as the case may be) shall have a separate claim and
right of action in respect of every breach of each relevant representation
or warranty.
6.5 Effect of Prior Disclosure. Sellers shall not
--------------------------
-18-
<PAGE>
have any liability under Section 6.2 hereof in respect of any matter to the
extent that such matter is disclosed in or pursuant to the Disclosure Documents
(as defined in the Umbrella Acquisition Agreement) in a manner which would
enable Purchasers reasonably to make an informed assessment of the matter;
provided, however, that (subject to Section 6.6 hereof) no other information of
which Purchasers have (or later obtain) knowledge (actual, implied or
constructive) shall prejudice or affect any Claim made by it under Section 6.2
hereof or operate to reduce any amount recoverable.
6.6 Lack of Actual Knowledge. Purchasers confirm to Sellers
------------------------
that Purchasers do not have actual knowledge that any of them has the
ability to make a Claim for breach of the Sellers' representations and
warranties immediately following the coming into effect of this Agreement.
6.7 Notice of Damages. A party seeking indemnity hereunder (the
-----------------
"Indemnified Party") will give the party from whom indemnity is sought
hereunder (the "Indemnitor") prompt notice (hereinafter, the
"Indemnification Notice") of any Claim asserted against the Indemnified
Party. Failure to give such notice shall relieve the Indemnitor of any
obligations which the Indemnitor may have to the Indemnified Party with
respect to such Claim, but not from any other obligations which the
Indemnitor may otherwise have to the Indemnified Party. For purposes of
this Article 6, Purchasers together, on the one hand, and Sellers together,
on the other hand, shall be deemed to be one "Indemnified Party" or one
"Indemnitor", as the case may be.
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<PAGE>
6.8 Conditions of Indemnification of Third Party Claims. The
---------------------------------------------------
obligations and liabilities of an Indemnitor under Section 6.2 or 6.3
hereof with respect to Damages resulting from Claims by persons not party
to this Agreement shall be subject to the following terms and conditions:
6.8.1 Promptly (but no later than 30 days) after
delivery of an Indemnification Notice in respect of a Claim and subject to
paragraph 6.8.3 of this Section 6.8, the Indemnitor may elect, by written
notice to the Indemnified Party, to undertake the defense thereof with
counsel reasonably satisfactory to the Indemnified Party, at the sole cost
and expense of Indemnitor.
6.8.2 In the event that the Indemnitor, within 30 days
after receipt of an Indemnification Notice, does not so elect to defend
such Claim, the Indemnified Party will have the right (upon further notice
to the Indemnitor) to undertake the defense, compromise or settlement of
such Claim for the account of the Indemnitor, subject to the right of the
Indemnitor to assume the defense of such Claim pursuant to the terms of
paragraph 6.8.1 at any time prior to settlement, compromise or final
determination thereof, provided that the Indemnitor reimburses in full all
costs of the Indemnified Party (including reasonable attorney's fees and
expenses) incurred by it in connection with such defense prior to such
assumption.
6.8.3 Anything in this Section 6.8 to the
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<PAGE>
contrary notwithstanding,
(a) if the Indemnified Party believes there is a
reasonable probability that a Claim may materially and adversely affect the
Indemnified Party, then notwithstanding that the Indemnitor has elected to
defend the Claim, the Indemnified Party shall have the right to participate
in the defense, compromise or settlement of such Claim, provided that the
Indemnitor shall continue to control the defense of the Claim and provided
further that the Indemnitor shall not be liable for expenses of separate
counsel of the Indemnified Party engaged for such purpose, and
(b) no person who has undertaken to defend a Claim
under Section 6.8.1 or 6.8.2 hereof (a "Defending Party") shall without
written consent of each Indemnified Party which is a party to the action
(which consent shall not be unreasonably withheld) settle or compromise any
Claim or consent to entry of any judgment which does not include as an
unconditional term thereof the release by the claimant or the plaintiff of
all Indemnified Parties from all liability arising from events which
allegedly give rise to such Claim.
6.9 Remedies Cumulative. The remedies provided to an
-------------------
Indemnified Party herein shall be cumulative and shall not preclude an
Indemnified Party from asserting any other rights or seeking any other
remedies against an Indemnitor or its respective heirs, successors or
assigns.
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<PAGE>
6.10 Cooperation. Without prejudice to the validity of the
-----------
Claim, each Indemnified Party shall (so far as is reasonable or reasonably
practicable) allow, and (so far as it is able) shall procure that the other
Sellers or Purchasers (as the case may be) allow, the Defending Party and
its accountants and professional advisers to investigate the matter or
circumstance alleged to give rise to such Claim, and whether and to what
extent any amount is payable in respect of such Claim, and for such purpose
the Indemnified Party shall (so far as it is reasonable or reasonably
practicable) give, and shall procure that the other relevant Sellers or
Purchasers, as the case may be, so give, subject to their being paid all
reasonable costs and expenses, all such information and assistance,
including access to premises and personnel, and the right to examine and
copy or photograph any assets, accounts, documents and records, as the
Defending Party, or its accountants or professional advisers may reasonably
request, provided, however, that all information made available by any
party shall only be used for the specific purpose requested and shall
otherwise be held in confidence.
6.11 Subsequent Recoveries. If an Indemnitor pays an amount in
---------------------
discharge of any Claim under this Agreement and if an Indemnified Party
subsequently recovers (whether by payment, discount, credit, relief or
otherwise) from a third party a sum which is referable to the subject
matter of the Claim and which would not otherwise have been received by the
Indemnified Party,
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<PAGE>
the Indemnified Party shall pay, or shall procure that the relevant Seller
or Purchaser (as the case may be) pays, to the Indemnitor an amount equal
to (i) the sum recovered from the third party less any costs and expenses
incurred by it in obtaining such recovery or (ii) if less, the amount
previously paid by the Indemnitor to the Indemnified Party.
6.12 Claims Subject to Limitations of Umbrella Acquisition
-----------------------------------------------------
Agreement. No Indemnitor shall be liable for any Claims under this
- ---------
Agreement which (if the Umbrella Acquisition Agreement covered the subject
matter of this Agreement) could not be made by Kalamazoo (in the case of a
Purchaser-Indemnified Party) or Datapoint (in the case of a Seller-
Indemnified Party) under and in accordance with the Umbrella Acquisition
Agreement by reason of the limitations contained in Section 6.8(b) through
(f) or Section 6.9 of that agreement.
ARTICLE 7
---------
GENERAL
7.1 Notices. All notices, requests, demands and other
-------
communications hereunder shall be in writing and shall be deemed duly given
if sent by facsimile transmission or registered mail, postage prepaid.
7.1.1 Any such notice shall be deemed given the same
day as sent by facsimile transmission (with simultaneous confirmation by
mail) or, if mailed, four days after the date of deposit in the mail, if
addressed:
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<PAGE>
(a) In the case of Sellers to:
Datapoint Corporation
5-7 rue Montalivet 75008
Paris, France
Attention: Blake Thomas/General Counsel
Facsimile: 0033-1400-73702
with a copy to:
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, New York 10022
Attention: Selig D. Sacks, Esq./
Gerald N. Agranoff, Esq.
Facsimile: 001-212-326-0806
(b) In the case of Purchasers to:
Kalamazoo Investment plc
Northfield
Birmingham
B31 2RW
England
Attention: Ian Davidson/David Deacon
Facsimile: 0121-478-0077
or to such other address or to such other person as Purchaser or a Seller
shall have last designated by notice to the other parties given as herein
provided.
7.1.2 The Sellers (other than DP) hereby appoint DP as
their agent for purposes of receiving notices, requests, demands and other
communications pursuant to this Section 7.1 and agree that delivery of
notices, requests, demands and other communications to DP pursuant to this
Section shall constitute delivery thereof to them. DP agrees to forward
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<PAGE>
promptly to all other Sellers any notices, requests, demands and other
communications received by it.
7.1.3 The Purchasers (other than Kalamazoo) hereby
appoint Kalamazoo as their agent for purposes of receiving notices,
requests, demands and other communications pursuant to this Section 7.1 and
agree to delivery of notices, requests, demands and other communications to
Kalamazoo pursuant to this Section shall constitute delivery thereof to
them. Kalamazoo agrees to forward promptly to all other Sellers any
notices, requests, demand and other communications received by it.
7.2 Entire Agreement. This Agreement, together with the
----------------
Exhibits and Schedules hereto, contains the entire agreement among the
parties hereto with respect to the sale and transfer of the Assets and
there are no agreements, warranties or representations with respect to the
Assets which are not set forth herein. All prior negotiations, agreements
and understandings are superseded hereby. Neither the entering into of
other agreements on or after the date hereof which reference this Agreement
nor the reference herein to the specific provisions of such other
agreements shall limit or otherwise affect the completeness of the
understandings set forth herein.
7.3 Modification. This Agreement may not be modified or amended
------------
except by an instrument in writing duly signed by or on behalf of the
parties hereto.
7.4 Governing Law. This Agreement shall be governed
-------------
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<PAGE>
by and construed and enforced in accordance with the laws of the State of
New York without regard to any conflicts of law provision or rule that
could cause the application of the laws of another jurisdiction.
7.5 Arbitration.
-----------
(a) Any disputes or claims in any way arising out of, relating
to or in connection with this Agreement shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with the said Rules. The place of the
arbitration shall be London and the language of the arbitration shall be
English.
(b) Sellers hereby irrevocably authorize and appoint Datapoint
(UK) Limited at its registered office for the time being, (being at the
date hereof at Datapoint House, 400 North Circular Road, London SW10 OJG )
to accept service of all legal process (addressed to the attention of the
General Counsel) arising out of or connected with this Agreement and
service on such process agents shall be deemed to be service on Sellers.
Datapoint (UK) Limited shall promptly notify all Sellers of receipt of such
process. If such process agent ceases to exist or to have an address in
England, Sellers irrevocably agrees without notice to appoint new process
agents acceptable to Purchasers and to deliver a written acceptance of
appointment by such process agents.
(c) Purchasers hereby irrevocably authorize and
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<PAGE>
appoint Kalamazoo at its registered office for the time being, (being at
the date hereof at Northfield, Birmingham, B31 2RW, England), to accept
service of all legal process (addressed to the attention of Ian
Davidson/David Deacon) arising out of or connected with this Agreement and
service on such process agents shall be deemed to be service on Purchasers.
Kalamazoo shall promptly notify all Purchasers of receipt of such process.
If such process agent ceases to exist or to have an address in England,
Purchasers irrevocably agree without notice to appoint new process agents
acceptable to Sellers and to deliver a written acceptance of appointment by
such process agents.
7.6 Binding Effect; Assignment. This Agreement shall be binding
--------------------------
upon the parties and inure to the benefit of the successors, assigns, heirs
and legal representatives of the respective parties hereto; provided,
--------
however, that neither this Agreement nor any and all rights hereunder may
- -------
be assigned prior to Completion by any party hereto except by or with the
prior written consent of all other parties.
7.7 Counterparts. This Agreement may be executed simultaneously
------------
in any number of counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument.
7.8 Transaction Expenses. Notwithstanding anything else in this
--------------------
Agreement to the contrary, each party hereto shall be responsible for the
payment of (and shall indemnify and hold
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<PAGE>
the other party or parties hereto harmless against) any and all of its own
expenses, including without limitation the fees and expenses of counsel,
accountants and other advisers, arising out of or relating directly or
indirectly to the transactions contemplated in this Agreement, whether or
not such transactions are consummated in whole or in part.
7.9 Severability. If in any jurisdiction, any provision of this
------------
Agreement or its application to any party or circumstance is restricted,
prohibited or unenforceable, such provision shall, as to such jurisdiction,
be ineffective only to the extent of such restriction, prohibition or
unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of such provision in any
other jurisdiction or its application to other parties or circumstances.
In addition, if any one or more of the provisions contained in this
Agreement shall for any reason in any jurisdiction be held to be
excessively broad as to time, duration, geographical scope, activity or
subject, it shall be construed, by limiting and reducing it, so as to be
enforceable to the extent compatible with the applicable law of such
jurisdiction as it shall then appear.
7.10 Headings. The title of this Agreement and the headings of
--------
the Sections and Articles of this Agreement are for reference purposes only
and shall not be used in construing or interpreting this Agreement.
-28-
<PAGE>
7.11 Waiver. The waiver of breach of any term or condition of
------
this Agreement shall not be deemed to constitute a waiver of any other
breach of the same or any other term or condition. A party's failure to
insist on strict performance of any provision of this Agreement shall not
be deemed to be a waiver thereof or of any right or remedy for breach of a
like or different nature. Subject, as aforesaid, no waiver shall be
effective unless specifically made in writing and signed by a duly
authorized officer of the party granting such waiver.
7.12 Third Parties. Except as specifically set forth or
-------------
referred to herein, nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or corporation
other than the parties hereto and their successors or assigns any rights or
remedies under or by reason of this Agreement.
7.13 Officers' Liability. No officer of a corporate party to
-------------------
this Agreement who delivers a certificate or other information in good
faith pursuant to or in connection with this Agreement shall have any
personal liability to any party (other than such corporate party) unless
such officer's conduct in the preparation and delivery of such certificate
or information constitutes gross negligence, wilful misconduct or fraud.
7.14 Adaptation of Legal Terms. References to any American
-------------------------
legal term for any action, remedy, method of judicial proceeding, legal
document, legal status, Court, official or any
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<PAGE>
legal concept or thing shall in respect of any jurisdiction other than New
York be deemed to include what most nearly approximates in that
jurisdiction to the American legal term.
7.15 Official Language. The official language of this Agreement
-----------------
shall be English.
ARTICLE 8
---------
TERMINATION
This Agreement shall forthwith terminate and cease to be of
effect and no party shall have any claim against the others with respect to
the subject matter hereof if either:
8.1 All of the Non-DARTS conditions have not been satisfied by
June 25, 1996; or
8.2 The Umbrella Acquisition Agreement is terminated for any
reason prior to Completion.
ARTICLE 9
---------
GUARANTEE AND INDEMNITY
In order to induce the Sellers to enter into this Agreement, the
Guarantor hereby unconditionally and irrevocably guarantees to Sellers the
due and punctual performance and observance of all the obligations,
commitments, undertakings, warranties and indemnities of Purchasers under
or pursuant to
-30-
<PAGE>
this Agreement and agrees to indemnify Sellers against all Claims and
Damages which any Seller may suffer through or arising from any breach by
any Purchaser of its obligations, commitments, warranties or undertakings
under or pursuant to this Agreement. The terms and conditions of this
Guarantee and Indemnity shall be
-31-
<PAGE>
substantially identical to those set forth in Sections 8.1 through 8.5 of
the Umbrella Acquisition Agreement.
IN WITNESS WHEREOF, this Agreement was executed the day and year
first above written.
Purchasers: Sellers:
- ---------- -------
Kalamazoo Investment plc Datapoint Corporation
By: By:
---------------------- ----------------------
Name: Name:
Title: Title:
Kalamazoo Computer Group A.G. Datapoint Deutschland
(in formation) GmbH
By: By:
---------------------- ----------------------
Name: Name:
Title: Title:
For Kalamazoo Investment plc,
its founder
Datapoint Svenska AB
Guarantor
- ---------
Kalamazoo Computer Group plc
By:
----------------------
Name:
Title:
By:
-------------------------
Name:
Title:
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<PAGE>
Datapoint Belgium S.A.
By:
----------------------
Name:
Title:
Datapoint Nederland B.V.
By:
----------------------
Name:
Title:
Datapoint Iberica S.A.
By:
----------------------
Name:
Title:
Datapoint (Schweiz) Ltd.
By:
----------------------
Name:
Title:
-33-
<PAGE>
SCHEDULE A
----------
Sellers
Datapoint Corporation
Datapoint Belgium S.A.
Datapoint Deutschland GmbH
Datapoint Nederland B.V.
Datapoint Iberica S.A.
Datapoint (Schweiz) Ltd.
Datapoint Svenska AB
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<PAGE>
SCHEDULE B
----------
Purchasers
Kalamazoo Investment plc
Kalamazoo Computer Group A.G.
(in formation)
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<PAGE>
EXHIBIT 1.1.1
-------------
SOFTWARE
[See attached pages 1-1 to 1- ]
-36-
<PAGE>
EXHIBIT 2.1
-----------
PERMITTED ENCUMBRANCES
All customer agreements listed on Exhibits to the Template Agreement
executed by each Seller other than DP.
There are four other categories of agreements:
CATEGORY
- --------
1. With Ford Motor Company, allowing Sellers to use the Ford-claimed
DARTS modules, meaning selling them, installing them, and in some
cases maintaining them.
2. With local third party software-houses, allowing Sellers to sell
selected business applications to be used in an integrated form with
DARTS.
3. With DARTS-agents in countries where DP does not have subsidiaries.
4. With a Ford DCAS-agent, allowing a Seller to be a DCAS 'sub-agent'
through an agreement with a Ford-appointed main DCAS partner.
CATEGORY 1
- ----------
The following DARTS modules are claimed by Ford;
Germany
- -------
OASIS
RAPID
DPSA/EVA
DSR
DOE
CORT
DPMS/Teile-Dispo
Ford Bank
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<PAGE>
Other countries
- ---------------
DOE
DSR
WARRANTY revision 1 and 2 (excluding Spain)
DPMS (specifications and algorithm)
OASIS
RAPID
CATEGORY 2
- ----------
Belgium
- -------
DATAPOINT from Kers C.V. handling accounting for AD 4.0
MULSOC from SORINFA sprl. handling accounting for AD 3.0
France
- ------
PAYE MAJOR from SAARI handling payroll for MS/DOS DARTS versions
ALIENOR IV from LOGICYS handling accounting for MS/DOS base
Germany
- -------
AUDATEX from AUDATEX for calculation program for version 3.5 to
determine value of used and damaged cars
BDE from ISGUS handling time management for version 3.5
Ford SilverDAT from FORD, DRT and Team ADP for calculation
program for version 3.5 to determine value of used cars
Sweden
- ------
No 3rd party software
Switzerland
- -----------
AAWIMaster from AAWI Informatikk handling Accounting
AAWIMaster 'Salary modul' handling payroll
Holland
- -------
No 3rd party software
Spain
- -----
No 3rd party software
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<PAGE>
CATEGORY 3
- ----------
DARTS distributor agreement between DP and Scan Vest Olivetti Norway for
the Norwegian marketplace using AD 3.0 with some specific Norwegian
modifications done by Olivetti, but owned by DP.
(No similar agreement with Olivetti Denmark exists as Denmark is still
using its own old DOS version of DARTS).
CATEGORY 4
- ----------
DCAS agreement between Datapoint Germany and IBM Germany, covering the
following two areas:
*Porting the German DARTS version 3.5 to an IBM AIX platform
*Allowing DPT to be a DCAS sub-agent in Germany through IBM
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<PAGE>
EXHIBIT 2.3
-----------
PURCHASE PRICE ALLOCATION
Country Purchase Price Allocation (US$)
- ------- -------------------------------
Spain 1,900,000
Germany 10,500,000
Netherlands 2,200,000
Switzerland 600,000
Belgium 900,000
Sweden 300,000
USA 15,100,000
----------
TOTAL 31,500,000
==========
SAVE THAT:
1. $1,500,000 shall be withheld by the Purchasers for the purpose of
and in accordance with Escrow Fund 2 as defined in the Umbrella
Acquisition Agreement; and
2. $1,250,000 shall be withheld by the Purchasers for the purposes
of and in accordance with the Pensions Escrow as defined in the
Agreement of even date between Datapoint Deutschland GmbH and
Kalamazoo Investment plc.
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