49 Exhibit 2.02
DATED 29th May 1998
(1) SHOP VAC CORPORATION
- and -
(2) MORPHY XXXXXXXX APPLIANCES LIMITED
AGREEMENT
for the sale and purchase of the
whole of the issued share capital
of Goblin Limited
Dibb
-------
Xxxxxx
-------
Xxxxx
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CONTENTS
1. DEFINITIONS AND INTERPRETATION........................................1
2. SALE AND PURCHASE OF SHARES...........................................3
3. CONSIDERATION.........................................................4
4. COMPLETION............................................................4
5. FURTHER ASSURANCE AND ATTORNEY........................................4
6. COSTS .............................................................4
7. SUCCESSORS AND ASSIGNMENT.............................................5
8. VARIATIONS............................................................5
9. WAIVER................................................................5
10. AGREEMENT CONTINUES IN FORCE..........................................5
11. SEVERABILITY..........................................................5
12. NOTICES...............................................................5
13. COUNTERPARTS..........................................................6
14. GOVERNING LAW.........................................................6
SCHEDULE 1.....................................................................8
The Company...........................................................8
SCHEDULE 2.....................................................................9
Part 1................................................................9
Completion.....................................................9
Part 2...............................................................10
Items to be provided..........................................10
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AGREED FORM DOCUMENTS
1 Completion Board Minutes of the Company
2 Resignations of Directors and Secretary
3 Resignation of Auditors
4 Release(s) of guarantees given to third parties
5 Letter(s) of non-drystallisation
6 Release(s) of liabilities owed to the Vendor
7 Powers of Attorney in relation to the Shares
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THIS AGREEMENT is made 29th May 1998
BETWEEN:
(1) SHOP VAC CORPORATION a company incorporated in the state of New Jersey,
United States of America whose principal office is at 0000 Xxxxx Xxxx
Xxxxxxxxxxxx Xxxxxxxxxxxx 00000-0000 XXX ("the Vendor")
(2) MORPHY XXXXXXXX APPLIANCES LIMITED a Company incorporated in England
with number 1610139 and whose registered office is at XX Xxx 000
Xxxxxxxxxx Xxxxx Xxxxxxxxx X00 0XX ("the Purchaser")
WHEREAS:
(A) The Company is a private company limited by shares.
(B) Further information relating to the Company is set out in Schedule 1.
(C) The Vendor is the beneficial owner or is otherwise able to procure the
transfer of the Shares.
(D) The Vendor has agreed to sell and the Purchaser has agreed to purchase
the Shares for the consideration and upon the ten-ns and conditions set
out in this Agreement.
IT IS HEREBY AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall
(except where the context otherwise requires) have the
following meanings:
"BUSINESS DAY" means a day other than a Saturday or Sunday on
which banks are open for business in London;
"COMPANY" means Goblin Limited;
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"COMPLETION" means the performance of all the obligations of
the parties hereto set out in clause 4;
"COMPLETION BOARD MINUTES" means minutes of meetings of the
boards of directors of the Company in the agreed form or such
other documents necessary to effect those matters in relation
to the Company set out in Schedule 2 Part 2;
"COMPLETION DATE" means the date of this Agreement;
"CONSIDERATION" means the consideration for the Shares set out
in clause 3;
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, option,
restriction, equity, right to acquire, right of pre-emption,
third party right or interest, other encumbrance or security
interest of any kind or any other type of preferential
arrangement (including, without limitation, a title transfer
and retention arrangement) having similar effect;
"SHARES" means the whole of the issued share capital of the
English Company;
"VENDOR'S GROUP" means the Vendor and its subsidiary
undertakings from time to time;
"VENDOR'S SOLICITORS" means Xxxxxxxx Xxxxxx of 000 Xxxxxx,
Xxxxxx XX0X IJN;
1.2 In this Agreement where the context admits:
1.2.1 words and phrases which are defined or referred to
in or for the purposes of the Companies Acts and
the Taxes Act (or either of them) have the same
meanings in this Agreement (unless otherwise
expressly defined in this Agreement);
1.2.2 sections 5, 6, 8 and 9 of schedule I to the
Interpretation Xxx 0000 apply in the same way as
they do to statutes;
1.2.3 reference to a statutory provision includes
reference to:
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1.2.3.1 any order, regulation, statutory
instrument or other subsidiary
legislation at any time made under it for
the time being in force (whenever made);
1.2.3.2 any modification, amendment,
consolidation, re-enactment or
replacement of it or provision of which
it is a modification, amendment,
consolidation, re-enactment or
replacement;
1.2.4 reference to a recital, clause, sub-clause,
schedule or paragraph is to a recital, clause,
sub-clause, schedule or a paragraph of a schedule
of or to this Agreement respectively;
1.2.5 reference to any gender includes the other
genders;
1.2.6 the index, headings and any descriptive notes are
for ease of reference only and shall not affect
the construction or interpretation of this
Agreement;
1.2.7 this Agreement incorporates the Schedules to it;
1.2.8 the "agreed form" in relation to any document
means the form agreed between the parties to this
Agreement and for the purposes of identification
only initialled by or on behalf of the parties.
2. SALE AND PURCHASE OF SHARES
2.1 The Vendor shall sell with full title guarantee free from all
Encumbrances and the Purchaser shall purchase the Shares.
2.2 Such sale shall include all rights of any nature which are now
or which may at any time become attached to the Shares or
accrue in respect of them including all dividends and
distributions declared paid or made in respect of them on or
after the date of this Agreement.
2.3 The Vendor hereby waives any right of pre-emption or other
restriction on transfer in respect of the Shares or any of
them conferred on it under the articles of association or
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constitution of the Company or otherwise and agrees to procure
at Completion the irrevocable waiver of any such right or
restriction conferred on any other person.
3. CONSIDERATION
The aggregate consideration payable by the Purchaser to the Vendor for
the Shares shall be US$].
4. COMPLETION
Completion shall take place at the offices of the Vendor's Solicitors
on the Completion Date when each of the parties shall comply with the
provisions of Schedule 2.
5. FURTHER ASSURANCE AND ATTORNEY
5.1 Upon and after Completion the Vendor shall at the request of
the Purchaser do and execute or procure to be done and
executed all such acts, deeds, documents and things as may be
necessary to give effect to this Agreement.
5.2 Upon and after Completion at the request of the Purchaser the
Vendor shall execute or procure the execution under seal/as a
deed of a power of attorney in the agreed form in favour of
the Purchaser or such person as may be nominated by the
Purchaser generally in respect of the shares and in particular
to enable the Purchaser (or its nominee) to attend and vote at
general meetings of the Company during the period prior to the
name of the Purchaser (or its nominee) being entered on the
register of members of the Company in respect of the Shares.
6. COSTS
Except as otherwise provided in this Agreement each of the parties
shall bear and pay its own legal, accountancy, actuarial and other fees
and expenses incurred in and incidental to the preparation and
implementation of this Agreement and of all other documents in the
agreed form.
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7. SUCCESSORS AND ASSIGNMENT
This Agreement shall be binding upon and enure for the benefit of each
party's successors in title but shall not be assignable.
8. VARIATIONS
No variation of this Agreement or any of the documents in the agreed
form shall be valid unless it is in writing and signed by or on behalf
of each of the parties hereto.
9. WAIVER
No waiver by any party of any breach or non-fulfilment by any other
party of any provisions of this Agreement shall be deemed to be a
waiver of any subsequent or other breach of that or any other provision
and no failure to exercise or delay in exercising any right or remedy
under this Agreement shall constitute a waiver thereof. No single or
partial exercise of any right or remedy under this Agreement shall
preclude or restrict the further exercise of any such right or remedy.
The rights and remedies of the Purchaser provided in this Agreement are
cumulative and not exclusive of any rights and remedies provided by
law.
10. AGREEMENT CONTINUES IN FORCE
This Agreement shall remain in full force and effect so far as concerns
any matter remaining to be performed at Completion even though
Completion shall have taken place.
11. SEVERABILITY
The invalidity, illegality or unenforceability of any provisions of
this Agreement shall not affect the continuation in force of the
remainder of this Agreement.
12. NOTICES
12.1 Any notice to be given pursuant to the terms of this Agreement
shall be given in writing;
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in the case of the Vendor to Shop Vac Corporation, fax 001 717
000 0000: 0000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx,
00000-0000, XXX; Attention: D. Grill and
in the case of the Purchaser to Xxxx Dimplex, Fax 00 000 0 000
8371; 00 Xxxxxxxxx Xxxx,Xxxxxx 4, Attention: S X'Xxxxxxxx
or to such other person and/or address as may have been
notified to the other parties in accordance with this clause.
12.2 Notice shall be delivered personally or sent by first class
pre-paid recorded delivery or registered post (air mail if
overseas) or by facsimile transmission and shall be deemed to
be given in the case of delivery personally on delivery and in
the case of posting (in the absence of evidence of earlier
receipt) 48 hours after posting (six days if sent by air mail)
and in the case of facsimile transmission on completion of the
transmission Provided that the sender shall have received
printed confirmation of transmission.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed by one or each of the parties hereto shall
constitute an original but all of which shall constitute one and the
same instrument.
14. GOVERNING LAW
14.1 This Agreement shall be governed by and construed in
accordance with the laws of England.
14.2 The parties irrevocably agree that the courts of England shall
have exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that
accordingly, any suit, action or proceedings (together in this
clause referred to as "Proceedings") arising out of or in
connection with this Agreement shall be brought in such
courts.
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14.3 The Vendor irrevocably waives any objection which it may have
now or hereafter to the laying of the venue of any Proceedings
in such court as is referred to in this clause 14 and any
claim that any such Proceedings have been brought in an
inconvenient forum and further irrevocably agree that
ajudgment in any Proceedings brought in the English courts
shall be conclusive and binding upon the Vendor and may be
enforced in the courts of any other jurisdiction.
14.4 The Vendor expressly and specifically agrees and accepts the
terms of this clause and signs this Agreement in recognition
of such agreei- nent and acceptance.
14.5 The Vendor appoints the Vendor's Solicitors to accept service
on their behalf of any Proceedings which may be commenced
pursuant to this clause in the Courts of England.
IN WITNESS of which the parties or their duly authorised representatives have
executed this Agreement as follows.
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SCHEDULE 1
The Company
Name and registered Number and Date and place of
registered office or principal office incorporation Directors and Secretary Issued share capital
------------------------------------------------------------------------------------------------------------------------------------
Goblin Limited England J Xxxxxx 000 Xxxxxxxx(xxxxx)0
Xxx Xxxxxxxxx House M Xxxxxx 2,135,000 Ord USD1
Xxx Xxxxx Xxxxxx 0,000 Xxxx(xxxxx)0
Xxxxxxxxx
XX0 0XX
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SCHEDULE 2
PART 1
Completion
1. The Vendor shall repay or procure the repayment of all sums owed by it
or any person connected with it to the Company.
2. The Vendor shall deliver or procure to be delivered to the Purchaser in
respect of the Company each item specified in Part 2 of this Schedule.
3. The Vendor shall procure that a meeting of the board of directors of
the Company is convened and held at which resolutions in the form set
out in the Completion Board Minutes are duly passed.
4. The Purchaser shall pay to the Vendor's Solicitors by transfer of funds
the sum of US$1 being the Consideration payable at Completion. The
Vendor's Solicitors receipt shall be a sufficient discharge for such
sum and the Purchaser shall not be concerned to see to the application
thereof.
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SCHEDULE 2
PART 2
Items to be provided
1.1 duly executed transfers of the Shares in favour of the Purchaser or its
nominee(s) together with duly executed powers of attorney or other
authorities pursuant to which any transfers have been executed;
1.2 the relevant share certificates (or an express indemnity in a form
satisfactory to the Purchaser in the event of any found to be missing)
in respect of the Shares;
1.3 the written resignations in the agreed form of J Xxxxxx, M Xxxxxx and
Xxxx Xxxxxxx as directors of and Lawgram Secretaries as the secretary
of the Company;
1.4 the written resignation in the agreed form of the auditors of the
Company;
1.5 all certificates of incorporation and certificates of incorporation on
change of name for the Company;
1.6 the common seal and statutory books (including minute books) and books
of account of the Company properly made up;
1.7 copies of all bank mandates given by the Company;
1.8 bank statements dated not earlier than two Business Days before
Completion for all bank accounts of the Company together with cash book
balances of the Company as at Completion and reconciliation statements
reconciling such balances with the bank statements;
1.9 all cheque books in the possession of or under the control of the
Company;
1.10 all credit cards in the name of or for the account of the Company in
the possession of any person resigning from his office or employment on
Completion;
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1.11 duly executed deeds of release in the agreed form releasing the Company
from any liability whatsoever under any guarantee[s];
1.12 a letter from Midland Bank plc to the Purchaser in the agreed form
confirming that none of the floating charges created in its favour by
the Company has crystallised;
1.13 all relevant documents of title to the property occupied by the Company
(or in respect of any individual property charged to a third party
certified true copies thereof);
1.14 all motor vehicles owned by the Company but in the possession of any
person resigning from his office or employment on Completion together
with the keys, registration documents and certificates of insurance in
respect thereof;
1.15 duly executed deeds of release in the agreed form releasing the Company
from any liability whatsoever (actual or contingent) which may be owing
to the Vendor or any member of the Vendor's Group or any person
connected with any member of the Vendor's Group;
1.16 such waivers consents or other documents as the Purchaser may require
to enable the full beneficial ownership of the Shares to vest in the
Purchaser; and
1.17 such other documents and things as the Purchaser may properly and
reasonably request to implement this transaction.
SIGNED by on ) \s\ Xxxxxxx Xxxxxx
behalf of SHOP VAC CORPORATION )
SIGNED by on )
behalf of MORPHY XXXXXXXX ) \s\ Xxxx X'Xxxxxxxx
APPLIANCES LIMITED )
I:\C49047.AGR (sa/jm)
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