MEMORANDUM OF AGREEMENT made as of the 27th day of January, 1999.
B E T W E E N :
PERICOM SYSTEMS CORPORATION, SANNEK ASSOCIATES, INC., GLOBAL
INVESTMENTS AND TRADING LTD., 1025504 ONTARIO LTD., COLIVAS
ENTERPRISES LTD., USS ENTERPRISE INC.
(collectively hereinafter referred to as the "Vendors")
OF THE FIRST PART;
- and -
AFFILIATED ADJUSTERS, INC.
(hereinafter referred to as the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendors are the registered and beneficial owners of all of the
issued and outstanding shares in the capital of The Precyse Corporation (the
"Corporation"), which shares are hereinafter referred to as the "Purchased
Shares";
AND WHEREAS the parties hereto have agreed that the Vendors
shall sell and the Purchaser shall purchase from the Vendors the Purchased
Shares on the terms and conditions hereinafter set out;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. The foregoing recitals are true in substance and in fact.
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2. Subject to the terms and conditions hereof, the Vendors covenant and agree
to sell, assign and transfer to the Purchaser and the Purchaser covenants
and agrees to purchase from the Vendors all (and not less than all) of the
Purchased Shares in the capital stock of the Corporation controlled by the
Vendors for the purchase price (the "Purchase Price") payable as set out in
Section 3 hereof.
3. The Purchase Price for the Purchased Shares shall be the sum of $7.353 per
share of lawful money of the United States of America (the total Purchase
Price for all of these outstanding shares being $1,000.00).
4. The Purchase Price shall be payable to or as directors by the Vendors by
cheque payable on the Closing Date.
5. The closing of this transaction shall take place no later than January 27,
1999, or such other date as may be agreed to between the parties hereto
(the "Closing Date").
6. On the Closing Date, upon fulfilment of all the conditions set out herein,
the Vendors shall deliver to the Purchaser the certificates representing
all the Purchased Shares duly endorsed in favour of the Purchaser.
7. In connection with the purchase and sale of the Purchased Shares, each of
the Vendors represents and warrants to the Purchaser as follows:
(a) the authorized capital of the Corporation consists of an unlimited
number of common shares of which 130 have been duly issued and are
outstanding as fully paid and non-assessable;
(b) the shareholders of record are as follows:
Number of
Name of Shareholder Common Shares
------------------- -------------
Pericom Systems Corporation 31
Sannek Associates, Inc. 30
Global Investments and Trading Ltd. 7
1025504 Ontario Ltd. 31
Colivas Enterprises Ltd. 31
USS Enterprise Inc. 6
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and such shares are owned by the Vendors, are held with good and
marketable title, free and clear of all mortgages, liens, charges,
security interests, adverse claims, pledges, encumbrances and demands
whatsoever;
(c) no person, firm or corporation has any agreement or option or any
right (whether by law, pre-emptive or contractual and including
convertible securities, warrants or convertible obligations of any
nature) for the purchase or the issue of either the Purchased Shares
or any unissued shares in the capital stock of the Corporation;
(d) the entering into of this agreement and the transactions contemplated
hereby will not result in the violation of any of the terms and
provisions of the constating documents or by-laws of the Vendors or of
any indenture or other agreement, written or oral, to which the
Vendors may be a party;
(e) this agreement has been duly executed and delivered by the Vendors and
is a valid and binding obligation of the Vendors enforceable in
accordance with its terms;
(f) the Vendors are not insolvent, have not committed an act of
bankruptcy, proposed a compromise or arrangement to their creditors
generally, had any petition for a receiving order in bankruptcy filed
against them, taken any proceeding with respect to a compromise or
arrangement, taken any proceeding to have themselves declared
bankrupt, taken any proceeding to have a receiver appointed over any
part of their assets, had any encumbrancer take possession of any of
their property, or had any execution or distress become enforceable or
become levied upon any of their property;
(g) to the Vendors' knowledge, there are no existing or threatened legal
actions or claims against the Corporation; and
(h) there are no liens, charges or encumbrances of any kind whatsoever on
the assets of the Corporation.
8. In connection with the purchase and sale of the Purchased Shares, Pericom
Systems Corporation, 1022504 Ontario Ltd. and Colivas Enterprises Ltd.
hereby represent and warrant to the Purchaser as follows:
(a) the unaudited internal statements dated December 31, 1998 and attached
hereto as Schedule "A" fairly represent the financial position of the
Corporation as at the date of such statements;
(b) there are no employees of the Corporation; and
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(c) the business of the Corporation is described in Schedule "B" attached
hereto and such schedule fairly represents the business presently
being carried on by the Corporation;
9. After the execution hereof, the parties shall execute all such further
instruments and assurances and shall do all such other acts and things as
may be necessary or desirable in connection with the transactions
contemplated herein, including the transfer of registered and beneficial
ownership of the Purchased Shares to the Purchaser.
10. This agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the Province of
Ontario. Each of the parties hereto hereby irrevocably submits and attorns
to the jurisdiction of the courts of the Province of Ontario.
11. The provisions hereof shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators,
successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of
the date first written above.
PERICOM SYSTEMS CORPORATION SANNEK ASSOCIATES, INC.
Per: ______________________ Per:
GLOBAL INVESTMENTS AND
TRADING LTD. 1025504 ONTARIO LTD.
Per: ______________________ Per:
COLIVAS ENTERPRISES LTD. USS ENTERPRISE INC.
Per: _______________________ Per:
AFFILIATED ADJUSTERS, INC.
Per:
