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Exhibit 10.5
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of June 30, 1999 (the "Agreement"),
by and among X.X. XXXXXXX & CO., LTD., a Bermuda company ("WPS Ltd."), XXXXX
ASIA LIMITED, a British Virgin Islands corporation ("Xxxxx"), XXXXXXX X.X.
TARGET, an individual residing in Hong Kong ("Target), and XXXX X. XXXXXXX
("Xxxxxxx"), an individual residing in Hong Kong, XXXXX XXXXXXXX, an individual
residing in Hong Kong ("Takemura"), and XXXXXX XXX an individual residing in
Hong Kong ("Lin") (Target, Xxxxxxx, Takemura and Lin, and any other individual
who may acquire ordinary shares in Xxxxx, are collectively referred to herein as
the Xxxxx Shareholders").
WHEREAS, WPS Ltd. has purchased ordinary shares and cumulative
preference shares constituting, in the aggregate, 7.6% of the issued and
outstanding capital stock of Xxxxx from certain former outside non-partner
shareholders of Xxxxx (the "Outside Shareholders") for an amount agreed between
WPS Ltd. and such Outside Shareholders (the total amount paid by WPS Ltd. to the
Outside Shareholders for all of such ordinary shares divided by the total number
of ordinary shares so purchased shall be referred to herein as the "Third Party
Price");
WHEREAS, Takemura and Lin have increased their ownership of Xxxxx
to 5% through share transfers from Target and Xxxxxxx;
WHEREAS, Xxxxx and the Xxxxx Shareholders, on the one hand, and
WPS Ltd. and the other hand, desire to more closely affiliate their businesses;
WHEREAS, WPS Ltd. wishes to increase its total investment in Xxxxx
from 21.9% to 40%, and to establish the means by which it may acquire a majority
interest in Xxxxx in the future, and Xxxxx and the Xxxxx Shareholders desire
such result;
NOW THEREFORE, in consideration of the premises and other
covenants and conditions contained herein, the parties hereby agree as follows:
ARTICLE I
THE INVESTMENT PROCESS
1.1 WPS Ltd.'s Initial Investment in Xxxxx. Upon the terms and subject
to the conditions contained herein, and in reliance upon the representations,
warranties and agreements contained herein, Xxxxx and the Xxxxx Shareholders, as
the case may be, hereby agree to convey, transfer, assign and deliver to WPS
Ltd., and WPS Ltd. hereby agrees to acquire from Xxxxx, on or before June 30,
1999 (the "Closing Date"), such amounts of ordinary shares of Xxxxx ("Ordinary
Shares"), cumulative preference shares
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of Xxxxx ("Preference Shares") and partner preferred shares ("Partner Preferred
Shares" and, together with the Ordinary Shares and Preference Shares, the "Xxxxx
Shares") for the purchase prices set forth below. (All dollar amounts in this
Agreement refer to United States Dollars.)
(a) The 5% Purchase. Xxxxx shall issue to WPS Ltd., and WPS
Ltd. shall acquire, 66,316 new Ordinary Shares constituting an additional 5% of
Xxxxx, for a purchase price of $4 per new Ordinary Share or an aggregate
purchase price of $265,264 (the "5% Purchase").
(b) The 37.05% Purchase. Immediately following the closing of
the 5% Purchase, Xxxxx shall issue to WPS Ltd., and WPS Ltd. shall acquire,
42,757 Ordinary Shares for a cash purchase price per new Ordinary Share equal to
the Third Party Price (an aggregate value of $234,736). As a result of the
foregoing transaction (the "37.05% Purchase"), WPS Ltd. shall own 37.05%, in the
aggregate, of the then issued and outstanding Xxxxx Shares.
(c) The Partner Preferred Purchase. Immediately following the
closing of the 37.05% Purchase, the Xxxxx Shareholders shall transfer to WPS
Ltd. all of the 125,000 Partner Preferred Shares then issued and outstanding,
having an agreed cash value of $125,000, in exchange for the issuance by WPS
Ltd. to the Xxxxx Shareholders of 11,585 common shares of WPS Ltd., par value
$0.001 per share ("WPS Shares"), having an agreed value of $10.79 per WPS Share
(such exchange shall be referred to as the "Partner Preferred Purchase"). Upon
the closing of the Partner Preferred Purchase, Xxxxx shall cancel the Partner
Preferred Shares.
(d) The 40% Purchase. Immediately following the closing of the
Partner Preferred Purchase, the Xxxxx Shareholders, on a pro rata basis, shall
transfer to WPS Ltd. 31,807 Ordinary Shares owned by them in exchange for the
issuance by WPS Ltd. of 16,184 WPS Shares, whereupon WPS Ltd. shall own, in the
aggregate, 40% of the then-issued and outstanding Xxxxx Shares.
1.2 Majority Interest Option.
(a) WPS Ltd. shall have the option (the "Majority Interest
Option") to purchase from Xxxxx, or from the Xxxxx Shareholders and other
shareholders, as the Xxxxx Shareholders may decide, such number of Ordinary
Shares as shall cause WPS Ltd. to own, following such purchase, 50.1% of Xxxxx'x
issued and outstanding Ordinary Shares at the time of exercise of the Majority
Option (the "Majority Shares"). The Majority Option shall be exercisable at any
time during the period commencing on the fifth anniversary of the Closing Date
and ending at the close of business on the tenth anniversary of the Closing Date
(the "Option Period").
(b) WPS Ltd. shall provide written notice to Xxxxx and the
Xxxxx Shareholders of its election to exercise the Majority Option. The closing
of the Majority Option shall occur within 30 days after such notice. At the
closing of the Majority
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Option, WPS Ltd. shall pay to Xxxxx or the Xxxxx Shareholders a purchase price
per Majority Share acquired equal to the greater of $10 million or 15 times
Xxxxx'x then most recent trailing four quarters' earnings, after taxes, divided
by the total number of Ordinary Shares issued and outstanding prior to the
exercise of the Majority Option.
1.3 Minority Put.
(a) In the event that WPS Ltd. shall exercise the Majority
Option, the Xxxxx Shareholders shall have the option to put their remaining
shares in Xxxxx to WPS Ltd. (the "Minority Put"). The Minority Put shall be
exercisable during the portion, if any, of the Option Period remaining following
the closing of the Majority Option.
(b) The Xxxxx Shareholders shall provide written notice to WPS
Ltd. of their election to exercise the Minority Put. The closing of the Minority
Put shall occur within 30 days after such notice. At the closing of the Minority
Put, WPS Ltd. shall pay to the Xxxxx Shareholders a purchase price per Minority
Share of 15 times Xxxxx'x most recent trailing four quarters' earnings, after
taxes, divided by the total number of Ordinary Shares issued and outstanding
immediately prior to the exercise of the Minority Put (the "Minority Price").
WPS Ltd. shall pay the Minority Price (A) 20% in cash and (B) 80% in WPS Shares,
half of which WPS Shares shall vest two years from the date of the closing of
the Minority Put and half of which WPS Shares shall vest three years from the
date of the closing of the Minority Put. The number of WPS Shares to be used in
calculating the Minority Price shall be computed on the date of the Xxxxx
Shareholders' written notice to exercise such Minority Put and shall be based
upon either (i) in the event that WPS Shares shall be listed for trading on a
recognized national or international exchange at the time of the closing of the
Minority Put, the average daily mid bid-offer price per WPS Share taken over the
most recent consecutive three-month period, or (ii) in the event the WPS Shares
are not so listed, 6.11 times trailing four quarters' earnings, after taxes, of
WPS Ltd.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF XXXXX
Xxxxx hereby represents and warrants to WPS Ltd. as follows:
2.1 Authority; Ownership of Shares. Xxxxx has all necessary power and
authority to enter into, deliver and carry out its obligations hereunder. This
Agreement is the legal, valid and binding obligation of Xxxxx, enforceable
against Xxxxx in accordance with its terms except as such enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforceability of contractual
obligations and creditors' rights generally and by the application of equitable
principles by courts of competent jurisdiction sitting at law or in equity.
2.2 No Brokers; No Agreements to Sell. Xxxxx does not have any written
or oral agreement, arrangement or understanding with any person which could
result in the
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obligation of WPS Ltd. to pay any finder's fee, brokerage commission or similar
payment in connection with any of the transactions contemplated hereunder.
Except in connection with this Agreement, Xxxxx does not have any obligation,
absolute or contingent, to any other person to sell any Xxxxx Shares or to enter
into any agreement with respect thereto.
2.3 No Conflict or Vio1ation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in a violation of or a conflict with the organizational documents of
Xxxxx.
2.4 Organization of Xxxxx. Xxxxx is duly organized, validly existing
and in good standing under the laws of the British Virgin Islands and has full
corporate power and authority to own, lease and operate its assets and
properties.
2.5 Capitalization. All of the issued and outstanding shares of Xxxxx
have been duly authorized and are validly issued, fully paid and non-assessable.
There are no subscriptions, options, warrants, calls, commitments or other
rights of any kind outstanding for the purchase of, nor any securities
convertible or exchangeable for, Xxxxx Shares.
2.6 Absence of Certain Changes or Events. Since December 31, 1998,
except as otherwise expressly permitted pursuant to this Agreement, there has
not been any material adverse change in the condition (financial or otherwise),
assets, liabilities, working capital, reserves, earnings, business, prospects,
or operating results of Xxxxx.
2.7 Xxxxx Financial Statements. Xxxxx'x Financial Statements (as
defined herein) dated as of December 31, 1998 have been delivered to WPS Ltd. on
or before the Closing Date. Xxxxx'x Financial Statements are complete in all
material respects and accurately reflect the assets, liabilities and financial
condition and results of operations of Xxxxx, and contain and reflect all
necessary adjustments for a fair representation of Xxxxx'x Financial Statements,
as of the dates and for the periods covered thereby. For purposes of this
Agreement, "Financial Statements" shall mean the audited balance sheet, together
with the notes thereto and the related statements of income and statements of
stockholders' equity, retained earnings and changes in financial position or
cash flows for the 12-month period ended as of the prior fiscal year, together
with the notes thereto.
2.8 Litigation. There is no action, order, writ, injunction, judgment
or decree outstanding or claim, suit, litigation, proceeding, labor dispute,
arbitral action, investigation or inquiry pending or threatened or anticipated
against Xxxxx or with respect to any of the transactions contemplated hereby.
2.9 Misstatements or Omissions. No representations or warranties by
Xxxxx contain or will contain any untrue statement of material fact, or omit or
will omit to state any material fact necessary to make the statements or facts
contained therein not misleading.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE XXXXX SHAREHOLDERS
Each Xxxxx Shareholder severally represents and warrants to WPS
Ltd. as follows:
3.1 Authority of Xxxxx Shareholder; Ownership of Shares: Such Xxxxx
Shareholder has all necessary power and authority to own its Partner Preferred
Shares and, as applicable, Ordinary Shares and to enter into, deliver and carry
out such Xxxxx Shareholder's obligations hereunder. This Agreement is the legal,
valid and binding obligation of each Xxxxx Shareholder, enforceable against such
Xxxxx Shareholder in accordance with its terms except as such enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforceability of contractual
obligations and creditors' rights generally and by the application of equitable
principles by courts of competent jurisdiction sitting at law or in equity.
3.2 No Brokers; No Agreements to Sell. Such Xxxxx Shareholder has no
written or oral agreement, arrangement or understanding with any person which
could result in the obligation of WPS Ltd. to pay any finder's fee, brokerage
commission or similar payment in connection with any of the transactions
contemplated hereunder.
3.3 No Conflict or Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in a violation of or a conflict with any contractual or other legal
obligation of such Xxxxx Shareholder.
3.4 Misstatements or Omissions. No representations or warranties by
such Xxxxx Shareholder contain or will contain any untrue statement of material
fact, or omit or will omit to state any material fact necessary to make the
statements or facts contained therein not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF WPS LTD.
WPS Ltd. represents and warrants to Xxxxx and the Xxxxx Shareholders as
follows:
4.1 Authority; Ownership of Shares. WPS Ltd. has all necessary power
and authority to enter into, deliver and carry out its obligations hereunder.
This Agreement is the legal, valid and binding obligation of WPS Ltd.,
enforceable against WPS Ltd. in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws
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affecting the enforceability of contractual obligations and creditors' rights
generally and by the application of equitable principles by courts of competent
jurisdiction sitting at law or in equity.
4.2 No Brokers; No Agreements to Sell. WPS Ltd. does not have any written
or oral agreement, arrangement or understanding with any person which could
result in the obligation of Xxxxx to pay any finder's fee, brokerage commission
or similar payment in connection with any of the transactions contemplated
hereunder.
4.3 No Conflict or Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in a violation of or a conflict with the organizational documents of WPS
Ltd.
4.4 Organizations of WPS Ltd. WPS Ltd. is duly organized, validly
existing and in good standing under the laws of Bermuda and has full corporate
power and authority to own, lease and operate its assets and properties.
4.5 Capitalization. All of the issued and outstanding shares of WPS Ltd.
have been duly authorized and are validly issued, fully paid and non-assessable.
4.6 Absence of Certain Changes or Events. Since December 31, 1998, except
as otherwise expressly permitted pursuant to this Agreement, there as not been
any material adverse change in the condition (financial or otherwise), assets,
liabilities, working capital, reserves, earnings, business, prospects, or
operating results of WPS Ltd.
4.7 WPS Ltd. Financial Statements. WPS Ltd.'s Financial Statements have
been delivered to Xxxxx dated as of December 31, 1998 on or before the Closing
Date. WPS Ltd.'s Financial Statements are complete in all material respects and
accurately reflect the assets, liabilities and financial condition and results
of operations of WPS Ltd. and contain and reflect all necessary adjustments for
a fair representation of WPS Ltd.'s Financial Statements, as of the dates and
for the periods covered thereby.
4.8 Litigation. There is no action, order, writ, injunction, judgment or
decree outstanding or claim, suit, litigation, proceeding, labor dispute,
arbitral action, investigation or inquiry pending or threatened or anticipated
against WPS Ltd. or with respect to any of the transactions contemplated hereby.
4.9 Misstatements or Omissions. No representations or warranties by WPS
Ltd. contain or will contain any untrue statement of material fact, or omit or
will omit to state any material fact necessary to make the statements or facts
contained therein not misleading.
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ARTICLE 5
COVENANTS
5.1 No Dilution. Prior to the commencement of the Option Period, Xxxxx
shall not issue any Xxxxx Shares without the prior written consent of WPS Ltd.
In the event that Xxxxx desires to issue any Xxxxx Shares during the Option
Period prior to WPS Ltd.'s exercise of the Majority Interest Option, (a) Xxxxx
shall give WPS Ltd. written notice of its intention to issue Xxxxx Shares, and
(b) WPS Ltd. shall notify Xxxxx within 30 days of receipt of such notice of its
consent to such issuance of Xxxxx Shares or WPS Ltd.'s intent to exercise the
Majority Interest Option in accordance with Section 1.2 hereof.
5.2 No Sale of Assets. At any time during which WPS Ltd. owns 10% or
more, in the aggregate, of Xxxxx (irrespective of the nature of such ownership)
and prior to the commencement of the Option Period, neither Xxxxx nor any Xxxxx
Shareholder shall sell, pledge or transfer, and neither Xxxxx nor any Xxxxx
Shareholder shall enter into any agreement to sell, pledge or transfer, any
asset of Xxxxx without the prior written consent of WPS Ltd.
5.3 Restrictions on Transfer of Shares. Prior to the commencement of the
Option Period and so long as WPS Ltd. owns more than 10% in aggregate of Xxxxx
(irrespective of the nature of such ownership), neither Xxxxx nor any Xxxxx
Shareholder shall enter into any agreement to sell, pledge or transfer, any of
their Xxxxx Shares without the prior written consent of WPS Ltd. (other than
internal transfers among or between Xxxxx Shareholders). During the same such
period, WPS Ltd. shall not sell, pledge, or transfer any of its shares in Xxxxx
without the prior written consent of the Xxxxx Shareholders, except in the case
of a transfer from WPS Ltd. to one of its affiliates, in which case consent is
not required.
ARTICLE 6
REPURCHASE/RIGHTS OF FIRST REFUSAL
6.1 Change of Control. In the event of a Change of Control (as defined
herein) of WPS Ltd.:
(a) Xxxxx shall have the right to repurchase from WPS Ltd. the Xxxxx
Shares then owned by WPS Ltd. at the fair market value thereof; the closing of
which repurchase shall occur within 90 days after such Change of Control; and
(b) All unvested WPS Shares owned by Xxxxx and the Xxxxx
Shareholders, if any, shall be deemed to be fully vested as of the date of such
Change of Control.
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For purposes of this Agreement, a "Change of Control" shall be deemed to occur
at any time in which (i) the shareholders of WPS Ltd. as of the date hereof,
together with employees of WPS Ltd. or its affiliates, own less than 40% of
the issued and outstanding WPS Shares, or (ii) the Board of Directors of WPS
Ltd. shall have determined, based upon its review of any substantial transfer
of shares, that an effective change in control has occurred, irrespective of
the percentage ownership of shares. The Board of Directors of WPS Ltd. shall
conduct such a review in each instance of a substantial transfer of WPS Shares.
6.2 Rights of First Refusal.
(a) Xxxxx Right of First Refusal. In the event that WPS Ltd.
proposes to sell any of the Xxxxx Shares that it owns, at a time when WPS Ltd.
owns less than 50% of the issued and outstanding Xxxxx Shares, then Xxxxx shall
have the right of first refusal to purchase all, but not less than all, of the
Xxxxx Shares that WPS Ltd. proposes to sell (the "Xxxxx Right of First
Refusal"). WPS Ltd. shall provide written notice to Xxxxx and the Xxxxx
Shareholders of any proposed sale of Xxxxx Shares subject to the Xxxxx Right of
First Refusal (the "Notice of Sale"). Within 10 days after the Notice of Sale,
Xxxxx shall notify WPS Ltd. and the Xxxxx Shareholders of its decision to
exercise or decline to exercise the Xxxxx Right of First Refusal (the "Xxxxx
Determination"). Any exercise of the Xxxxx Right of First Refusal shall occur
within 30 days after the Notice of Sale.
(b) Xxxxx Shareholders' Right of First Refusal. In the event that
Xxxxx declines to exercise the Xxxxx Right of First Refusal, the Xxxxx
Shareholders shall have a subsequent right of first refusal to purchase all, but
not less than all, of the Xxxxx Shares specified in the Notice of Sale (the
"Xxxxx Shareholders' Right of First Refusal"). Within 10 days after the Xxxxx
Determination, the Xxxxx Shareholders shall notify WPS Ltd. and Xxxxx of the
Xxxxx Shareholders' decision to exercise or decline to exercise the Xxxxx
Shareholders' Right of First Refusal (the "Xxxxx Shareholders' Determination").
Any exercise of the Xxxxx Shareholders' Right of First Refusal shall occur
within 40 days after the Notice of Sale. In the event the Xxxxx Shareholders
decline to exercise the Xxxxx Shareholders' Right of First Refusal, WPS Ltd.
thereafter may sell the Xxxxx Shares specified in the Notice of Sale at its
discretion.
(c) Purchase Price. The purchase price of the Xxxxx Shares in the
case of any exercise of the Xxxxx Right of First Refusal or the Xxxxx
Shareholders' Right of First Refusal shall be based upon the earnings multiple
used by WPS Ltd. for its then most recent internal transactions involving WPS
Shares.
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ARTICLE 7
LOCATION AND MANAGEMENT
7.1 Name. As long as WPS Ltd. owns less than 50% of Xxxxx, Xxxxx
shall continue to be known as "Xxxxx Asia Limited".
7.2 Representative Offices. WPS Ltd., in its sole discretion, may
establish a representative office in Hong Kong and/or in other parts of Asia,
including without limitation Japan, Australasia, China, and the Indian
sub-continent (collectively, the "Pacific"). As long as Xxxxx continues to
perform in a satisfactory manner, in the sole judgment of WPS Ltd., all
representative offices and symbiotic marketing appointments which may be
established by WPS Ltd. in the Pacific shall be managed through Xxxxx; provided
that the foregoing does not grant exclusivity to Xxxxx nor preclude WPS Ltd.
from working with any other party or parties in or with respect to the Pacific.
7.3 Board Membership and Representation. As long as WPS Ltd. owns
Xxxxx Shares:
(a) WPS Ltd. Membership.
(i) The Board of Directors of Xxxxx shall include
membership by two representatives of the WPS Ltd. group of companies; one such
representative to be nominated by X.X. Xxxxxxx Asset Management, Ltd.,
including any successor thereto ("WPSAM"), and the other representative to be
nominated by X.X. Xxxxxxx Global Management Ltd., including any successor
thereto ("WPSGM"); and
(ii) The Compensation Committee of Xxxxx shall include one
representative of WPS Ltd..
(b) Xxxxx Membership.
(i) The Board of Directors of each of WPSAM and WPSGM
shall include membership by a representative of Xxxxx; and
(ii) The Global Research Committee and the Representation
Committee of each of WPSAM and WPSGM shall include one representative of Xxxxx.
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ARTICLE 8
COMPENSATION
8.1 Employee Compensation. The Xxxxx compensation committee, which shall
include a representative of WPS Ltd., shall determine all matters relating to
compensation for Xxxxx personnel.
8.2 Compensation Pool. The annual operating profits of Xxxxx, after
operating expenses and before taxes, will be apportioned to Xxxxx'x
compensation pool, dividends and reserves as follows:
(a) Except as provided in this subsection, Xxxxx shall not make any
distributions, nor pay any dividends, to any shareholders of Xxxxx for the
first three years following the Closing Date. Instead, during such period all
of the operating income of Xxxxx shall be applied towards compensation and the
accumulation of reserves in Xxxxx, up to a maximum of an aggregate of $2.5
million in each such year. Any operating income of Xxxxx in excess of $2.5
million in any such year shall be distributed to shareholders of Xxxxx as
dividends.
(b) At such time as the annual operating income of Xxxxx reaches $10
million, Xxxxx shall cause its level of compensation (as a percent of operating
profit before compensation and taxes) ("Compensation Level") for employees of
Xxxxx to equal the Compensation Level for employees of WPS Ltd.
8.3 Xxxxx Solicitation Agreement. The 1996 solicitation agreement between
WPS Ltd. and Xxxxx shall remain in full force and effect.
ARTICLE 9
CONDITIONS TO THE OBLIGATIONS OF XXXXX
The obligations of Xxxxx hereunder are subject in the discretion of
Xxxxx, to the satisfaction or waiver, on or prior to the Closing Date, of each
of the following conditions:
9.1 Representations, Warranties and Covenants. All representations and
warranties of WPS Ltd. contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date, and WPS Ltd. shall have
performed in all material respects all agreements and covenants required hereby
to be performed by it prior to or on the Closing Date.
9.2 Corporate Documents. Xxxxx shall have received from WPS Ltd. copies of
the Memorandum of Association and Bye-Laws of WPS Ltd. as in effect on the
Closing Date, in each case certified to be true and complete by the corporate
secretary of WPS Ltd.
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ARTICLE 10
CONDITIONS TO THE OBLIGATIONS
OF THE XXXXX SHAREHOLDERS
The obligations of the Xxxxx Shareholders hereunder are subject in
the discretion of the Xxxxx Shareholders, to the satisfaction or waiver, on or
prior to the Closing Date, of each of the following conditions:
10.1 Representations, Warranties and Covenants. All representations and
warranties of WPS Ltd. contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date, and WPS Ltd. shall have
performed in all material respects all agreements and covenants required hereby
to be performed by it prior to or on the Closing Date.
10.2 Corporate Documents. Xxxxx shall have received from WPS Ltd.
copies of the Memorandum of Association and Bye-Laws of WPS Ltd. as in effect on
the Closing Date, in each case certified to be true and complete by the
corporate secretary of WPS Ltd.
ARTICLE 11
CONDITIONS TO THE OBLIGATIONS OF WPS LTD.
The obligations of WPS Ltd. hereunder are subject in the
discretion of WPS Ltd., to the satisfaction or waiver, on or prior to the
Closing Date, of each of the following conditions:
11.1 Representations, Warranties and Covenants. All representations and
warranties of each of Xxxxx and the Xxxxx Shareholders contained in this
Agreement shall be true and correct in all material respects on and as of the
Closing Date, and each of Xxxxx and the Xxxxx Shareholders shall have performed
in all material respects all agreements and covenants required hereby to be
performed by it or them prior to or on the Closing Date.
11.2 Corporate Documents. WPS Ltd. shall have received from Xxxxx
copies of the organizational documents of Xxxxx as in effect on the Closing
Date, in each case certified to be true and complete by the corporate secretary
of Xxxxx.
ARTICLE 12
MISCELLANEOUS
12.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date by written agreement of WPS Ltd. and Xxxxx.
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12.2 Consideration. Part of the transactions herein may be settled by
payment of fully vested WPS Ltd. shares at $10.79 per share. The Xxxxx
Shareholders shall have the right to negotiate to purchase vesting shares of WPS
Ltd. at a price of 6.11 times trailing four-quarter earnings of WPS Ltd.
12.3 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the others
shall be in writing and delivered in person or by courier or by facsimile
transmission or mailed by certified mail, postage prepaid, return receipt
requested, as follows:
(a) If to Xxxxx, to:
Xxxxx Asia Limited
0000X, Xxxx Xx Xxxxxx
0-0 Xxxxxxx Xxxx
Xxxx Xxxx
Attention: Charles G.R. Target
Telephone: x000-0000-0000
Facsimile: x000-0000-0000
(b) If to WPS Ltd., to:
X.X. Xxxxxxx & Co., Ltd.
Xxxxxxx Xxxx, 00 Xxxxx Xxxxxx
P.O. Box 2905
Xxxxxxxx XX LX
Bermuda
Attention: Managing Director
Telephone: x000-000-0000
Facsimile: x000-000-0000
12.4 Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of Bermuda, other than conflict of
laws provisions thereof.
12.5 Entire Agreement; Amendment. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes any written or oral agreement between the parties relating thereto.
This Agreement may be modified only by a written document signed by both of the
parties hereto.
12.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
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12.7 Severability. If any one or more provisions of this Agreement
shall be declared illegal or unenforceable under any law, rule or regulation of
any federal, state, local or other government, or any agency or bureau thereof,
having jurisdiction over any of the parties hereto, such illegality or
unenforceability shall not affect the validity and enforceability of the other
provisions hereof, and the parties shall use reasonable efforts to modify this
Agreement, to the extent possible, so as to eliminate such invalidity.
continued on following page
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or have caused this Agreement to be duly executed on their behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.
X.X. XXXXXXX & CO., LTD.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Managing Director
------------------------
XXXXX ASIA LIMITED
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Director
------------------------
"XXXXX SHAREHOLDERS"
By: /s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX
By: /s/ CHARLES G.R. TARGET
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CHARLES G.R. TARGET
By: /s/ XXXXXX XXX
---------------------------
XXXXXX XXX
By: /s/ XXXXX XXXXXXXX
---------------------------
XXXXX XXXXXXXX
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