EXHIBIT 12
AGREEMENT TO RELEASE PLEDGED COLLATERAL
This Agreement to Release Pledged Collateral (this "Agreement") dated
as of December 20, 1995, is made and entered into by and among Primary Holdings
Limited, a Bermuda corporation ("PHL"), Jaguar Inc., a Delaware corporation
("Jaguar"), and Xxxxxxx X. Xxxxxx ("Xxxxxx").
W I T N E S S E T H:
Whereas, in consideration of the acquisition of all of the issued and
outstanding shares of capital stock of Xxxxxx Investments Limited, an Isle of
Man corporation ("Xxxxxx"), by Jaguar on September 10, 1993, Jaguar has
previously executed and delivered a Promissory Note dated as of September 10,
1993 (the "Note"), in the original principal amount of US$14.1 million and
payable to the holder thereof (the "Holder");
Whereas, pursuant to the Pledge Agreement dated as of September 10,
1993, made by Jaguar in favor of the Holder, Jaguar granted and pledged to the
Holder, as security for the indebtedness evidenced by the Note, a security
interest in all of the issued and outstanding shares of capital stock of Xxxxxx
owned by Jaguar;
Whereas, pursuant to the Pledge Agreement dated as of September 10,
1993, made by Jaguar and Xxxxxx in favor of the Holder, Jaguar and Xxxxxx
granted and pledged to the Holder, as security for the indebtedness evidenced by
the Note, a security interest in all of the shares of common stock, US$.01 par
value per share ("Common Stock"), of Computone Corporation, a Delaware
corporation ("Computone"), held by Xxxxxx and a certain Note dated as of
November 3, 1992 (the "Computone Note"), in the original principal amount of
US$500,000 convertible into shares of Common Stock (both of those Pledge
Agreements collectively referred to as the "Pledge Agreements");
Whereas, US$490,000 of the outstanding indebtedness represented by the
Computone Note has been heretofore converted into shares of Common Stock;
Whereas, Xxxxxx desires to purchase all of the shares of the capital
stock of Xxxxxx and the Computone Note and all of the shares of Common Stock
held by Xxxxxx (the "Shares") for $US750,000;
Whereas, PHL is the valid successor to the Holder and has all of the
rights, powers and privileges granted to the Holder under the Note and the
Pledge Agreements;
Whereas, to effect the sale, Jaguar, as Maker of the Note, desires for
PHL, as Holder of the Note, to release and relinquish its security interest in
the pledged shares of the capital stock of Xxxxxx, the Common Stock and the
Computone Note (all of such collec-
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tively referred to as the "Collateral") under the Pledge Agreements in
consideration for the receipt of US$750,000 in cash from or on behalf of Jaguar
as a partial prepayment of the Note (the "Prepayment");
Now, Therefore, in consideration of the premises, the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Release.
(a) Subject to the terms and conditions of this Agreement,
PHL, as Holder of the Note, agrees for itself and its respective successors,
assigns and affiliates to release its security interest in the Collateral under
the Pledge Agreements in consideration for receipt of the Prepayment of the Note
by Jaguar. Such release of security interest will be effected pursuant to a
Release of Security Interest, a form of which is attached hereto as Exhibit A
(the "Release"), and the delivery of the Collateral to Xxxxxx at the direction
of Jaguar in consideration of the Prepayment.
(b) Jaguar and PHL hereby agree that the Prepayment shall be
deemed a partial payment under the terms of the Note. The remaining principal,
and interest, if any, due under the Note shall remain outstanding and due
pursuant to the terms of the Note. The Prepayment in no way will relieve or
release Jaguar from any of its other obligations under the Note.
2. Representations and Warranties.
(a) Jaguar represents and warrants to PHL, as Holder of the
Note, that the following is true and correct, and covenants with PHL, as Holder
of the Note, as follows:
(i) Neither Jaguar nor Xxxxxx has previously assigned
or transferred, or purported to assign or transfer, to any person or
entity whatsoever any of the Collateral to be released hereby.
(ii) An authorized officer of Jaguar has read and
understands all of the provisions of this Agreement, Jaguar has been
represented, or has been given the opportunity to be represented, by
legal counsel of its own choosing in connection with the negotiation,
execution and delivery of this Agreement and any additional instruments
related to this Agreement.
(iii) Jaguar is a corporation duly organized and
existing under, and by virtue of, the laws of the State of Delaware and
is in good standing under those laws. Jaguar has the requisite
corporate power to execute and deliver this Agreement and perform its
obligations hereunder.
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(iv) All corporate action on the part of Jaguar and
Xxxxxx, and their respective directors and shareholders necessary for
the authorization, execution, delivery and performance of this
Agreement by Jaguar and the performance of its obligations hereunder
has been taken. As of Closing, all corporate action on the part of
Jaguar and Xxxxxx, and their respective directors and shareholders
necessary for the authorization, execution, delivery and performance of
documentation to effect the sale of the Collateral to Xxxxxx by Jaguar
will have been taken. This Agreement, when executed and delivered by
Jaguar shall constitute a valid and binding obligation of Jaguar,
enforceable against it in accordance with its terms, except as may be
limited by (A) applicable bankruptcy, insolvency, reorganization,
moratorium or other laws similarly affecting the enforcement of
creditors' rights or (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
(v) Neither the execution, delivery or performance of
this Agreement, nor the consummation of the transactions contemplated
hereby (A) violates any law, order, writ, judgment, injunction, award,
decree, rule, statute, ordinance or regulation applicable to Jaguar;
(B) conflicts with, results in a breach or termination of any provision
of, causes the acceleration of the maturity of any debt or obligation
pursuant to, constitutes a default (or gives rise to any right of
termination, cancellation or acceleration) under, any terms, conditions
or provisions of any note, license, instrument, indenture, mortgage,
deed of trust or other agreement or understanding or any other
restriction of any kind or character, to which Jaguar is a party or by
which any of its assets are subject or bound other than the Pledge
Agreements and the Note, to which PHL hereby consents; or (C) conflicts
with or results in any breach of any provision of the Certificate of
Incorporation or Bylaws or other governing or constituent document of
Jaguar.
(vi) As of the Closing, the sale of the Collateral to
Xxxxxx will not (A) violate any law, order, writ, judgment, injunction,
award, decree, rule, statute, ordinance or regulation applicable to
Jaguar; (B) conflict with, result in a breach or termination of any
provision of, cause the acceleration of the maturity of any debt or
obligation pursuant to, constitute a default (or give rise to any right
of termination, cancellation or acceleration) under, any terms,
conditions or provisions of any note, license, instrument, indenture,
mortgage, deed of trust or other agreement or understanding or any
other restriction of any kind or character, to which Jaguar is a party
or by which any of its assets are subject or bound other than the
Pledge Agreements and the Note, to which PHL hereby consents; or (C)
conflict with or result in any breach of any
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provision of the Certificate of Incorporation or Bylaws or
other governing or constituent document of Jaguar.
(vii) No consent, approval or authorization of, or
designation, declaration or filing with, any person or entity on the
part of Jaguar is required in connection with the valid execution and
delivery of this Agreement, the consummation of the transactions
contemplated hereby or the sale of the Collateral to Xxxxxx, except as
may be required pursuant to Sections 13 and 16 of the Securities
Exchange Act of 1934, as amended (the "1934 Act").
(viii) No statement by Jaguar contained in this
Agreement or any written statement or certificate furnished or to be
furnished to PHL pursuant to this Agreement or in connection with the
transactions contemplated hereby (when all such documents are read
together) contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances under which they are made.
(b) Xxxxxx hereby represents and warrants to PHL that the
following is true and correct, and covenants with PHL as follows:
(i) Xxxxxx has read and understands all of the
provisions of this Agreement and has been represented, or has been
given the opportunity to be represented, by legal counsel of its own
choosing in connection with the negotiation, execution and delivery of
this Agreement and any additional instruments related to this
Agreement.
(ii) Xxxxxx intends to convey some of the Shares to
an investment group or set forth on Schedule "I" attached hereto.
(iii) As of the Closing, all action on the part
of Xxxxxx as may be, necessary for the purchase of the
Collateral will have been taken.
(iv) As of the Closing, the consummation of the
purchase by Xxxxxx will not (A) violate any law, order, writ, judgment,
injunction, award, decree, rule, statute, ordinance or regulation
applicable to Xxxxxx; or (B) conflict with, result in a breach or
termination of any provision of, cause the acceleration of the maturity
of any debt or obligation pursuant to, constitutes a default (or gives
rise to any right of termination, cancellation or acceleration) under,
any terms, conditions or provisions of any note, license, instrument,
indenture, mortgage, deed of trust or other agreement or understanding
or any other restriction of any kind or character, to which Xxxxxx is a
party or by which his assets are subject or bound.
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(v) No consent, approval or authorization of, or
designation, declaration or filing with, any person or entity on the
part of Xxxxxx will be required in connection with Xxxxxx'x purchase of
the Collateral except as may be required pursuant to Sections 13 and 16
of the 1934 Act.
(vi) No statement by Xxxxxx contained in this
Agreement or any written statement or certificate furnished or to be
furnished to PHL pursuant to this Agreement or in connection with the
transactions contemplated hereby (when all such documents are read
together) contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances under which they are made.
(c) PHL hereby represents and warrants to Xxxxxx and
Jaguar that the following is true and correct:
(i) PHL is a company duly organized and existing
under, and by virtue of, the laws of Bermuda and has the requisite
corporate power to consent to the sale of the Collateral as provided
herein.
(ii) PHL is the valid successor to the Holder and
has, and is entitled to exercise, all of the rights, powers and
privileges granted to the Holder under the Note and Pledge Agreements.
(iii) All action on the part of PHL, and its
directors and shareholders necessary for the authorization, execution,
delivery and performance of the Agreement has been taken.
(iv) The consummation of this Agreement and the
transactions contemplated hereby by PHL will not (A) violate any law,
order, writ, judgment, injunction, award, decree, rule, statute,
ordinance or regulation applicable to PHL; or (B) conflict with or
result in any breach of any provision of its Memorandum of Association
or Bylaws or other governing or constituent document of PHL.
(v) No consent, approval or authorization of, or
designation, declaration or filing with, any person or entity on the
part of PHL will be required in connection the performance by PHL of
this Agreement or the transactions contemplated hereby.
(vi) PHL has conducted its own due diligence and
analysis with respect to the release of the Collateral. In entering
into this Agreement, PHL is not relying on any representations,
warranties or covenants of Xxxxxx with respect to PHL's decision to
release the Collateral pursuant hereto, other than as set forth in this
Agreement.
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3. Additional Instruments. If any additional instruments are required
to be executed and delivered to carry out the purpose and intent of this
Agreement and the transactions contemplated hereby, each of the parties shall
promptly execute and deliver any and all such instruments in order that the
purpose and intent of this Agreement and the transactions contemplated hereby
may be consummated.
4. Conditions to PHL's Obligations. The obligations of PHL to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction (or waiver by PHL) on or prior to the Closing (defined
hereinafter) of all of the following obligations:
(a) Each of Jaguar and Xxxxxx shall have cured any outstanding
defaults under the Pledge Agreements, including the delivery of outstanding any
certificates representing pledged stock or shares as provided under the Pledge
Agreements.
(b) PHL shall have received from Duane, Morris & Heckscher a
legal opinion as to the matters set forth in Sections 2(a)(iii), 2(a)(iv),
2(a)(v)(C), 2(a)(vi)(C), 2(a)(vii), 2(b)(iii), and 2(b)(v); provided, that such
opinion need not address any matter under the laws of the Isle of Man, including
those in Section 2(a)(iv).
5. Closing.
(a) The closing (the "Closing") of this Agreement shall take
place at 10:00 a.m., Houston time, not later than Wednesday, December 20, 1995,
at the offices of Fulbright & Xxxxxxxx L.L.P., 0000 XxXxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx, or such other time and place as the parties shall agree.
(b) At the Closing, the payment shall be delivered to PHL care
of Fulbright & Xxxxxxxx and PHL will execute the Release to release the
Collateral under the Pledge Agreements, and PHL will deliver the Collateral to
Xxxxxx.
6. Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, each of the parties hereto shall pay the fees and
expenses of its respective counsel and all other expenses incurred by such party
incident to the negotiation, preparation and execution of this Agreement and the
consummation of the transactions contemplated hereby.
7. Notices. To be effective, all notices, consents or communications
required shall be in writing and shall be delivered by hand or sent by
first-class prepaid certified or registered mail, return receipt requested,
overnight delivery service or facsimile (confirmed by first-class prepaid letter
sent within 24 hours of dispatch) to the parties hereto a their respective
addresses or facsimile numbers and to the attention of the persons set forth
below. Any party hereto may change its address or facsimile number for purposes
hereof by notice to all other parties in the manner provided above. Notice will
be effective upon receipt.
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PHL or HOLDER:
Primary Holdings Limited
c/o Conyers, Xxxx & Xxxxxxx
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
P.O. Box HM 666
Xxxxxxxx, Bermuda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Secretary;
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
Attn: Xxxx X. Xxxxxxx
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000; and
JAGUAR:
Jaguar Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: President;
with a copy to:
Duane, Morris & Heckscher
Attn: Xxxxxxxxx X. Xxxxxx
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000; and
XXXXXX:
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Telephone:(000) 000-0000
with a copy to:
Duane, Morris & Heckscher
Attn: Xxxxxxxxx X. Xxxxxx
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000.
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8. Successors. This Agreement shall be binding upon each of
the parties and their respective successors and assigns and shall
inure to the benefit of the parties and their respective successors
and assigns.
9. Miscellaneous.
(a) This Agreement may only be modified by the written
agreement of all of the parties. No modification or amendment of this Agreement
is effective unless made in writing and signed by all parties, with such written
modification or amendment stating the expressed intent to modify this Agreement.
A course of dealing or performance is not a modification unless expressed in an
appropriate written document and signed by all parties.
(b) All words used herein in the singular shall extend to and
include the plural, and all words used herein in the plural shall extend to and
include the singular.
(c) This Agreement (including any other referenced documents)
constitutes the entire agreement between the parties concerning the subject of
this Agreement. This Agreement supersedes all prior communications, statements,
representations and understandings, whether oral or written, on this subject.
(d) No waiver of any provisions of this Agreement shall be
effective unless made in writing and signed by the party against which
enforcement of the waiver is sought. A waiver of any breach of any provisions of
this Agreement shall not be construed as a waiver of any subsequent breach or
condition whether of the same or a different nature.
(e) In the event of any controversy or dispute arising out of
this Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party or parties its reasonable expenses, including, without
limitation, attorneys' fees and expenses.
(f) Should any provision, or application of any provision, of
this Agreement be held to be invalid, void or unenforceable, in whole or in
part, then such provision shall be deemed to be modified or restricted to the
extent and in the manner necessary to render it valid and enforceable, or shall
be deemed excised from this Agreement, as the case may require. This Agreement
shall be construed and enforced to the maximum permitted by law as if such
provision had been originally incorporated herein as so modified or restricted
or excised, as the case may be. If any provision of this Agreement is held to be
invalid, void or unenforceable, the remaining provisions shall continue in full
force and effect, without being impaired or invalidated in any way.
(g) No forbearance or delay by any party in enforcing any of
the provisions of this Agreement or the granting of time by any party to the
others shall prejudice, affect or restrict the rights and powers of that party.
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(h) The Section headings used in this Agreement are intended
solely for convenience of reference and shall not in any manner amplify, limit,
modify or otherwise be used in the interpretation or construction of any of the
provisions hereof.
(i) This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the District of Columbia,
excluding its laws of conflict of laws.
(j) This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
In Witness Whereof, this Agreement to Release Pledged Collateral has
been duly executed by each of the following parties as of the date first above
written.
PRIMARY HOLDINGS LIMITED
By: /s/ A. Xxx Xxxxxxxx
---------------------------
Name: A. Xxx Xxxxxxxx
Title: Alternate Director
JAGUAR INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
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ACKNOWLEDGEMENT
THE STATE OF ss.
ss.
COUNTY OF ss.
This instrument was acknowledged before me on the 20th day
of December, 1995, by Xxxxxxx X. Xxxxxx.
(SEAL)
/s/ Xxxxx X. Xxxxx
--------------------------------
Notary Public in and for
the State of Pennsylvania
Xxxxx X. Xxxxx
--------------------------------
(Printed Name of Notary)
My Commission Expires: 3/22/97
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ss.
STATE OF VIRGINIA ss.
ss.
COUNTY OF FAIRFAX ss.
ss.
This instrument was acknowledged before me on the 19th
day of December, 1995, by Xxxx X. Xxxxxxx.
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Notary Public in and for
the State of Pennsylvania
Xxxxxxx X. Xxxxxxxx
--------------------------------
(Printed Name of Notary)
My Commission Expires: 9/30/98
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ss.
ss.
ss.
ss.
ss.
I, Xxxxx X. XxxXxxxxx, notary public in and for Bermuda,
do hereby acknowledge that the above-signed A. Xxx Xxxxxxxx did execute the
foregoing Agreement to Release Pledged Collateral, on behalf of Primary Holdings
Limited, a Bermuda corporation, as its Alternate Director, before me this 19th
day of December, 1995.
/s/ Xxxxx X. XxxXxxxxx
---------------------------------
Notary Public in and for Bermuda
My commission expires: N/A
(seal)
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RELEASE OF SECURITY INTEREST
ss.
State of Texas ss.
ss. Know All Men By These Presents:
County of Xxxxxx xx.
ss.
That Primary Holdings Limited, a Bermuda corporation,
being the owner and holder (the "Holder") of that certain Promissory Note dated
as of September 10, 1993 (the "Note"), made by Jaguar Inc., a Delaware
corporation ("Maker"), in the original principal amount of US$14.1 million,
payable to the order of the Holder, and secured by (i) a security interest in
all of the issued and outstanding shares of capital stock of Xxxxxx Investments
Limited, an Isle of Man corporation ("Xxxxxx"), owned by Maker (the "Xxxxxx
Shares") pursuant to that certain Pledge Agreement dated as of September 10,
1993, made by Maker in favor of the Holder and by (ii) a security interest in
certain shares of common stock, $.01 par value per share (the "Computone
Shares"), of Computone Corporation, a Delaware corporation ("Computone"), and a
Note dated as of November 2, 1992 (the "Computone Note"), in the original
principal amount of US$500,000, owned by Xxxxxx pursuant to that certain Pledge
Agreement dated as of September 10, 1993, made by Maker in favor of the Holder
(collectively, the "Pledge Agreements"), for and in consideration of the partial
prepayment of the Note to the Holder in the amount of US$750,000, does hereby
RELEASE, RELINQUISH, QUITCLAIM AND DISCHARGE effective as of December 20, 1995
any and all rights, titles and interests in and to any and all liens or security
interests in the pledged Xxxxxx Shares, Computone Shares and the Computone Note
securing
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payment of the Note under the Pledge Agreements. If it is discovered that a
lien, claim or security interest in the pledged Xxxxxx Shares, Computone Shares
and the Computone Note is uncancelled or not terminated, the Holder agrees to
cancel promptly any such lien, claim or security interest following request
therefor by Maker or any other interested party.
In Witness Whereof, this Release of Security Interest has
been duly executed by the Holder as of December 20, 1995.
PRIMARY HOLDINGS LIMITED
By: /s/ A. Xxx Xxxxxxxx
--------------------------------
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ss.
ss.
ss.
ss.
ss.
I, Xxxxx X. XxxXxxxxx, notary public in and for Bermuda, do hereby
acknowledge that the above-signed A. Xxx Xxxxxxxx did execute the foregoing
Release of Security Interest, on behalf of Primary Holdings Limited, a Bermuda
corporation, as its Alternate Director, before me this 19th day of December,
1995.
/s/ Xxxxx X. XxxXxxxxx
--------------------------------
Notary Public in and for Bermuda
My commission expires: N/A
(seal)
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