1
Exhibit 28.15
DATED July 16,1996
(1) D.R. WATKINS AND OTHERS
(2) WPI GROUP (U.K.)
AGREEMENT
FOR THE SALE AND PURCHASE OF
THE SHARE CAPITAL OF
OYSTER TERMINALS LIMITED
Slater Heelis
71 Princess Street
Manchester M2 4HL
Ref: 0.6853/l.JPO/CFD
2
INDEX
-----
CLAUSES PAGE
- - ------- ----
1 Interpretation 3
2 Sale and Purchase 3
3 Consideration 4
4 Completion 4
5 Warranties and Representations 6
6 Guarantees and Indemnities 7
7 Assignment 7
8 Entire Agreement 7
9 Continuance 7
10 Further Assurance 7
11 Governing Law 8
12 Costs 8
13 Announcements 8
14 Notices 8
15 Time of Essence 9
16 Waiver of Rights 9
17 Pension Surplus 10
18 Vendors Undertaking 10
19 Covenant 10
SCHEDULES
- - ---------
First Schedule: Vendors and Consideration
Second Schedule: The Company
Third Schedule: Interpretation
Fourth Schedule: Warranties
Fifth Schedule: The Properties
Sixth Schedule: Limitations on Warranties
3
THIS AGREEMENT is made the 16th day of July One Thousand nine hundred and ninety
six
BETWEEN:-
(1) THE PERSONS whose names and addresses are set out in Part I of the
First Schedule ("the Vendors")
(2) WPI GROUP (U.K.) a company registered in England under number 3227062
whose registered office is at Fairoak House, Church Road, Newport,
Gwent. NP9 7EJ ("Purchaser")
WHEREAS:
(A) OYSTER TERMINALS LIMITED ("the Company") is a private company limited
by shares incorporated in England under the Companies Act 1948 under
company number 1167923 and further information concerning the Company
is set in the Second Schedule.
(B) The Shareholders are either the beneficial holders or the trustees of
the entire issued share capital of the Company and the Vendors have
the right power and authority to sell and transfer such shares or
procure the sale and transfer of free from all and any claims,
charges, liens, encumbrances, options or equities thereto.
(C) The Vendors have agreed to sell or procure the sale of and the
Purchaser has agreed to purchase the entire issued share capital of
the Company on the terms and subject to the conditions set out in this
Agreement and in the Schedules hereto ("the Agreement").
NOW IT IS HEREBY AGREED as follows:
- - -----------------------
1 INTERPRETATION
--------------
In this Agreement the words and expressions defined in the Third
Schedule hereto shall (unless the context otherwise requires) have the
meanings thereby given to them and this Agreement shall be construed
and interpreted accordingly.
2 SALE AND PURCHASE
-----------------
2.1 Subject to the terms of this Agreement the Vendors shall sell (or
procure the sale) with full title guarantee and the Purchaser
shall purchase the Shares free from all Encumbrances and together
with all rights now or hereafter attaching thereto.
3
4
2.2 The Purchaser shall not be obliged to complete the purchase
unless the purchase of all the Shares is completed
simultaneously.
2.3 The Vendors hereby waive any pre-emption rights they may have
relating to the Shares whether conferred by the Articles of
Association of the Company or otherwise.
3 CONSIDERATION
-------------
The consideration for the said sale and purchase of the Shares shall
be the sum of [pound sterling]7,350,000 and shall be apportioned
between the Shareholders in the manner set opposite their respective
names in the First Schedule.
4 COMPLETION
----------
4.1 Subject to the provisions of this Clause completion of the sale
and purchase of the Shares shall take place immediately following
the exchange of this Agreement ("the Completion Date") at the
offices of the Vendors' Solicitors whereupon:-
4.1.1 the Vendors shall:-
4.1.1.1 deliver to the Purchaser
(a) duly executed transfers of the Shares by the
registered holders thereof in favour of the
Purchaser and/or their nominee(s) together with
the relative share certificates;
(b) such waivers or consents as the Purchaser may
require to enable the Purchaser or its nominees to
be registered as holders of the Shares;
(c) the Disclosure Letter;
(d) the Tax Deed.
4.1.1.2 cause such persons as the Purchaser may nominate
to be validly appointed as additional directors of
the Company and upon such appointment forthwith
cause each of the Directors of the Company and the
Secretary of the Company to retire from their
4
5
respective offices and as employees each
delivering to the Purchaser a letter under seal
acknowledging that the person so retiring has no
claim outstanding for compensation or otherwise
and without any payment under the Employment
Protection (Consolidation) Act 1978;
4.1.1.3 procure amendment of all authorities to the
bankers of the Company relating to the bank
accounts giving authority to such persons as the
Purchaser may nominate to operate the same;
4.1.1.4 procure subject to stamping where necessary the
approval and registration of the transfers of the
Shares by the Board of the Company;
4.1.1.5 procure that the Company change its accounting
reference date to the date of the last Sunday in
September;
4.1.1.6 deliver to the Purchaser as agent for the
Company:-
(a) the title deeds relating to the Properties;
(b) the statutory books, Certificates of
Incorporation, Certificates of Incorporation
on Change of Name and the Common Seal of the
Company;
(c) written confirmation from the relevant banks
of all bank balances of the Company as at 12
July 1996 together with bank reconciliation
statements as at the close of business on 15
July 1996.
4.1.2 Upon compliance by the Vendors with the provisions of Clause
4.1.1 the Purchaser shall:
4.1.2.1 satisfy the consideration for the Shares by way of
telegraphic transfer payable to the Vendors'
Solicitors (whose receipt shall be a good and
absolute discharge to the Purchaser);
5
6
4.1.2.2 deliver to the Vendors a duly executed counterpart
Tax Deed;
5 WARRANTIES AND REPRESENTATIONS
------------------------------
5.1 The Warrantors warrant and represent to the Purchaser in the
terms of the Fourth Schedule hereto and acknowledge that the
Purchaser is entering into this Agreement in reliance on each of
the Warranties but no other warranty or representation.
5.2 The Warranties are given subject to matters fairly disclosed in
the Disclosure Letter.
5.3 The Warranties shall be separate and independent and save as
expressly provided shall not be limited by reference to any other
sub-paragraph or anything in this Agreement other than Sixth
Schedule.
5.4 If any sum or sums payable pursuant to this Agreement as a result
of a breach of any of the Warranties or pursuant to clause 19.1
is subject to taxation in the hands of the Purchaser then the
Vendors shall pay to the Purchaser such amount as will ensure
that the net amount received in respect of any payment due from
the Warrantors after such taxation is the same as it would have
been were the payment not so subject to taxation.
5.5 Where any statement in the Fourth Schedule or in the Disclosure
Letter is qualified by the expression "so far as the Warrantors
are aware" or the expression "to the best of the Warrantors'
knowledge, information and belief" or any similar expression or
wording of similar import, that statement shall (save where
otherwise specifically stated) be deemed to include an additional
statement that it has been made after due and careful enquiry.
5.6 The rights and remedies of the Purchaser in respect of the
Warranties shall not be affected by the sale and purchase of the
Shares, by any knowledge of any matter (whether actual or
constructive) any officer of the Purchaser may have in respect of
the affairs of the Company, by any investigation made by or on
behalf of the Purchaser into the affairs of the Company or by any
other event or matter whatsoever, except a specific and duly
authorised written waiver or release by the Purchaser.
5.7 Any information supplied by or on behalf of the Company or its
respective officers to the Warrantors or their agents or
accountants, solicitors or other advisors in connection with the
Warranties or the Disclosure Letter or otherwise in relation to
the business and affairs of the Company shall not constitute a
representation or warranty or guarantee as to the accuracy
thereof by the Company and the Warrantor hereby waives any and
all claims which they might otherwise have against the Company in
respect thereof.
6
7
6 GUARANTEES AND INDEMNITIES
--------------------------
Each of the Vendors undertakes with the Purchaser that they will each
use their reasonable endeavours to procure the release of the Company
from all guarantees, indemnities and securities given by the Company
in respect of his liabilities or of any Associate thereof and prior to
the formal release of the Company from liability under or in
connection with any such guarantees, indemnities and securities shall
indemnify the Company and keep it indemnified from and against any
payment made under any such guarantees, indemnities and securities and
any expense, loss, damage, cost, claim or liability whatsoever which
the Company may incur under or in connection therewith.
7 ASSIGNMENT
----------
This Agreement shall not be assignable save that the Purchaser shall
be entitled to assign the same to a Related Company for so long as
such entity shall remain a Related Company (but not otherwise) and
accordingly the expression "the Purchaser" as used herein shall where
the context so admits include any such assignee.
8 ENTIRE AGREEMENT
----------------
This Agreement (together with any documents referred to therein)
constitutes the whole agreement between the parties hereto in
connection with the Company and the sale and purchase of the Shares
and it is expressly declared that no variations hereof shall be
effective unless made in writing and agreed between all the parties
hereto.
9 CONTINUANCE
-----------
9.1 The provisions of this Agreement insofar as the same shall not
have been performed at Completion shall remain in full force and
effect notwithstanding Completion.
9.2 Subject to Clause 7.1 above this Agreement shall be binding upon
and enure for the benefit of the respective assigns successors
and personal representatives of the parties.
10 FURTHER ASSURANCE
-----------------
At any time after the date hereof the Vendors shall, at the request
and cost of the Vendors, execute such documents and do such acts and
things as the Purchaser may reasonably require for the purpose of
vesting the Shares in the Purchaser or its nominee and giving to the
Purchaser the full benefit of all the provisions of this Agreement.
7
8
11 GOVERNING LAW
-------------
This Agreement shall be governed by and construed in accordance with
the laws of England and Wales and the parties hereby submit to the
non-exclusive jurisdiction of the Courts of England and Wales.
12 COSTS
-----
Each party to this Agreement shall pay its own costs of and incidental
to this Agreement and the sale and purchase hereby agreed to be made.
13 ANNOUNCEMENTS
-------------
No announcement or circular in connection with the subject-matter of
this Agreement (except any such announcement as may be required by the
Purchaser to comply with the requirements of the NASDAQ/NMS) shall be
made by or on behalf of the Vendors or the Purchaser without the prior
written approval of the Vendors and the Purchaser as to its form and
timing such consent not being unreasonably withheld or delayed.
14 NOTICES
-------
14.1 Any notice required to be given under this Agreement shall be
sufficiently given:
(a) if delivered personally; or
(b) if sent by courier; or
(c) if sent by facsimile copier or other electronic means of
communication; or
(d) by letter despatched by first class recorded delivery
pre-paid post (by air-mail if to an overseas address) in
which case such notice is deemed to be given at the close of
business on the next following Business Day,
14.2 "Business Day" means any day (other than a Saturday or a Sunday)
on which clearing banks are open for a full range of banking
transactions in the country of the recipient.
14.3 Any notice required to be given under this Agreement shall be
sent:
(a) to the Vendors c/o the Vendors' Solicitors at:
Eversheds
Fitzalan House
Fitzalan Road
Cardiff CF2 1XW
8
9
Facsimile No: 01222-464347
For the attention of: Alan Whiteley
(b) to the Purchaser at:
WPI Group, Inc.
1155 Elm Street
Manchester
New Hampshire 03101
Facsimile No: 603 627 3150
For the attention of: Michael Tule, Vice President and General
Counsel
with a copy to the Purchaser's Solicitors at:
Slater Heelis
71 Princess Street
Manchester M2 4HL
Facsimile No: 0161 236 5282
For the attention of: Jeremy Orrell/Christopher Dunn
or to such other address or facsimile number as is
notified in writing from time to time by the Vendors
(or any one of them) or the Purchaser to the other
parties to this Agreement.
14.4 The Vendors hereby irrevocably agree that for the purpose of any
proceedings in the High Court of Justice in England and Wales
process may be served on them or any of them by sending a copy
thereof to Eversheds of Fitzalan House, Fitzalan Road, Cardiff,
CF2 1XW (c/o Alan Whiteley) by first class prepaid letter sent
through the post to such address and such process shall be deemed
to have been served 48 hours after the time at which the envelope
containing the same was posted (excluding Saturdays, Sundays and
Public Holidays) and in proving such service it shall be
sufficient to prove that an envelope containing the same was
properly addressed, stamped and placed in the post to Eversheds
aforesaid.
15 TIME OF ESSENCE
---------------
Any date or period mentioned in this Agreement may be extended by
mutual written agreement between the parties hereto, but as regards
any date or period (whether or not extended as aforesaid) time shall
be of the essence of this Agreement.
16 WAIVER OF RIGHTS
----------------
No waiver by any of the parties of any of the requirements hereof or
of any of its rights hereunder shall have effect unless given in
writing and signed by the party or by the party or
9
10
by the director or other duly authorised officer of such party.
17 PENSION SURPLUS
---------------
17.1 In the event of the Company receiving a payment of surplus fund
("the Net Surplus") from the Oyster Terminals Limited Executive
Pension Scheme (SSAS) established by a deed dated 13 January 1984
and made between the Company (1) and D. R. Watkins and Others (2)
the Company agrees to pay an amount equal to the Net Surplus less
any Relevant Tax due to Clifford Edwin Allen or if he is no
longer living to those members of his family, as are nominated by
him in writing or in default thereof to his personal
representatives within twenty-one days of the Company receiving
the Payment.
17.2 In this clause "Relevant Tax" shall mean any tax imposed on the
Company in respect of the receipt of the Net Surplus or the
payment of a part of the Net Surplus to any person in accordance
with this clause.
18 VENDORS' UNDERTAKING
--------------------
The Vendors undertake to give all reasonable assistance to the
Purchaser and/or the Company in obtaining a certificate of lawfulness
of existing use pursuant to section 191 of the Town and Country
Planning Act 1990 in relation to the Property.
19 COVENANT
--------
19.1 The Warrantors hereby covenant with the Purchaser to pay to the
Purchaser such sums as would if paid to the Company indemnify and
keep indemnified the Company against any and all losses,
liabilities, damages, awards and reasonable costs and expenses
(including legal and professional expenses) of whatever nature
and howsoever arising against or incurred by the Company (but
after giving credit for any reduction in Taxation (as defined in
the Tax Deed) as a result of any such being incurred or paid by
the Company) in connection with or in relation to the alleged
termination of the agency agreement between Escom International
Marketing Inc ("Escom") and the Company, the action in the United
States District Court for the Central District of California by
Escom against the Company or otherwise in connection with the
subject matter of the claim.
19.2 Notwithstanding any other provision of this Clause 19 the
liability of the Warrantors, under this Clause 19, shall be
limited in accordance with the provisions of paragraphs 1(c), 2
and 4 of the Sixth Schedule, and so that they shall not have any
liability to the extent the subject matter of the claim has been
recovered pursuant to the Tax Deed.
10
11
I N W I T N E S S whereof this Agreement has been entered into the day and year
first before written
SIGNED by /s/DOUGLAS RICHARD WATKINS
in the presence of:-
/s/Alan Whiteley
Solicitor
Cardiff
SIGNED by /s/CLIFFORD EDWIN ALLEN
in the presence of:-
/s/Alan Whiteley
Solicitor
Cardiff
SIGNED by /s/MICHAEL FOSTER
duly authorised signatory for and
on behalf of WPI GROUP (U.K.)
in the presence of:-
/s/Christopher Dunn
Solicitor
Manchester
11