<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: MAY 28, 1998
(DATE OF EARLIEST EVENT REPORTED)
SHOP VAC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
333-16453 NEW JERSEY 13-5609081
(COMMISSION FILE NUMBER) (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2323 REACH ROAD, WILLIAMSPORT, PA 17701
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(717) 326-0502
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 28, 1998, Shop Vac Corporation, a privately held New Jersey
corporation ("Shop Vac") closed the sale of its European operations to Glen
Dimplex and certain of its affiliates ("Glen Dimplex"). In the transaction Shop
Vac sold its capital stock ownership in Goblin Limited (a UK corporation),
Goblin Ireland Limited (an Irish corporation), FAM Nederland B.V. (a Netherlands
corporation), and Shop Vac Gesellschaft mbH (an Austrian corporation) and
transferred the businesses of its French branch operation and of its German
subsidiary, Shop Vac Vertriebs GmbH for approximately $7,500,000. Glen Dimplex
also assumed certain liabilities of the French branch operation and of Shop Vac
Vertriebs GmbH.
Shop Vac Corporation is a leading North American manufacturer and
marketer of consumer and industrial wet/dry vacuum cleaners and accessories and
is headquartered in Williamsport, Pennsylvania.
Glen Dimplex is a privately held Irish company which manufactures and
distributes electric heating and small domestic appliances throughout the world.
The Registrant is not aware of any material relationship between it or
any of its directors or officers, or between any affiliate or the directors or
officers of any affiliate, and Glen Dimplex that existed at the date of the
disposition.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of business acquired.
Not applicable.
(b) Pro forma financial information.
Shop Vac Corporation and Subsidiaries
The following unaudited pro forma financial statements are presented for
informational purposes only and do not purport to be indicative of the financial
position which would actually have existed or the results of operations which
would actually have been obtained if the transactions had occurred in the
periods indicated below or which may exist or be obtained in the future. The
ultimate use of the proceeds may differ from the assumptions used herein.
The following unaudited pro forma balance sheet as of March 31, 1998 gives
effect to the disposal of the European Group and the related pro forma
adjustments described in the accompanying notes. The balance sheet is presented
as though the disposal occurred on March 31, 1998.
The following unaudited pro forma statements of operations for the year ended
December 31, 1997 and the three months ended March 31, 1998 give effect to
i. the elimination of the results of operations of Goblin Limited,
Goblin Ireland Limited, FAM Nederland B.V., Shop Vac Gesellschaft
mbH, Shop Vac Vertriebs GmbH and the French branch of Shop Vac
(collectively "the European Group"), which were sold as described
in the accompanying notes, and
ii. the related pro forma adjustments described in the accompanying
notes.
The pro forma results of operations are presented as though the disposal
occurred on January 1 of each period.
These statements should be read in conjunction with the historical financial
statements and accompanying notes of the Registrant.
1
<PAGE> 3
SHOP VAC CORPORATION AND SUBSIDIARIES
Pro Forma Balance Sheet (unaudited)
as of March 31, 1998
(dollars in thousands)
<TABLE>
<CAPTION>
============================================================================================================================
Assets Shop Vac European Pro Forma Shop Vac
Consolidated Group Adjustments Pro Forma
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Current Assets:
Cash and cash equivalents ....................... $ 26,696 ($ 968) $4,073 (a) $ 29,801
Receivables, less allowance for doubtful
accounts ..................................... 24,226 (7,409) 16,817
Inventories .................................... 25,327 (7,858) 17,469
Prepaid expenses and other current assets ...... 2,753 (1,467) 1,286
Deferred income taxes .......................... 4,637 4,637
- ----------------------------------------------------------------------------------------------------------------------------
Total current assets ............................... $ 83,639 ($ 17,702) $ 4,073 $ 70,010
Property, plant, and equipment, net ................ 29,796 (5,042) 24,754
Property, plant, and equipment under
capital leases, net .............................. 6,013 (838) 5,175
Deferred income taxes .............................. 14,035 (726) 700 (b) 14,009
Other assets ....................................... 5,369 5,369
- ----------------------------------------------------------------------------------------------------------------------------
Total assets ....................................... $ 138,852 ($ 24,308) $ 4,773 $ 119,317
============================================================================================================================
Liabilities and Stockholders' Equity (Deficit)
============================================================================================================================
Current liabilities
Current portion of long-term debt .............. $ 2,989 ($ 1,350) ($ 1,493) (a) $ 146
Accounts payable ............................... 18,850 (7,704) 11,146
Accrued expenses ............................... 11,126 (2,540) 8,586
- ----------------------------------------------------------------------------------------------------------------------------
Total current liabilities .......................... $ 32,965 ($ 11,594) ($ 1,493) $ 19,878
Long-term debt ..................................... $ 102,154 ($ 789) ($ 1,334) (a) $ 100,031
Other liabilities .................................. 14,357 (880) 13,477
Stockholders' equity (deficit):
Common stock ....................................... 85 85
Paid in capital .................................... 110 110
Accumulated deficit ................................ (12,874) (8,710) 7,581 (c) (14,003)
Other comprehensive income - foreign
currency translation adjustment ................ 2,055 (2,335) 19 (261)
- ----------------------------------------------------------------------------------------------------------------------------
Total stockholders' equity (deficit) ............... ($ 10,624) ($ 11,045) $ 7,600 ($ 14,069)
- ----------------------------------------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity (deficit) $ 138,852 ($ 24,308) $ 4,773 $ 119,317
============================================================================================================================
</TABLE>
2
<PAGE> 4
SHOP VAC CORPORATION AND SUBSIDIARIES
Pro Forma Consolidated Statements of Operations (unaudited)
Year ended December 31, 1997
(dollars in thousands)
<TABLE>
<CAPTION>
============================================================================================================================
Shop Vac European Pro Forma Shop Vac
Consolidated Group Adjustments Pro Forma
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net Sales......................................... $216,796 ($66,654) $ 0 $150,142
Cost of sales..................................... 156,817 (54,378) $ 0 102,439
- ----------------------------------------------------------------------------------------------------------------------------
Gross profit...................................... $ 59,979 ($12,276) $ 0 $ 47,703
Selling, general, and administrative.............. 36,890 (11,542) 1,806 (d) 27,154
- ----------------------------------------------------------------------------------------------------------------------------
Income from operations............................ $ 23,089 ($ 734) ($1,806) $ 20,549
Interest expense.................................. 11,339 (622) (361)(e) 10,356
Non-operating expense, net........................ 1 108 0 109
- ----------------------------------------------------------------------------------------------------------------------------
Income before taxes............................... $ 11,749 ($ 220) ($1,445) $ 10,084
Income taxes...................................... (18,588) (286) (578)(f) (19,452)
- ----------------------------------------------------------------------------------------------------------------------------
Net income........................................ $ 30,337 $ 66 ($ 867) $ 29,536
============================================================================================================================
</TABLE>
3
<PAGE> 5
SHOP VAC CORPORATION AND SUBSIDIARIES
Pro Forma Consolidated Statements of Operations (unaudited)
Three months ended March 31, 1998
(dollars in thousands)
<TABLE>
<CAPTION>
============================================================================================================================
Shop Vac European Pro Forma Shop Vac
Consolidated Group Adjustments Pro Forma
- ------------------------------------------------------------------------------------- --------------------------------------
<S> <C> <C> <C> <C>
Net Sales......................................... $48,677 ($12,815) $ 0 $ 35,862
Cost of sales..................................... 34,651 (10,208) $ 0 24,443
- ----------------------------------------------------------------------------------------------------------------------------
Gross profit...................................... $14,026 ($ 2,607) $ 0 $ 11,419
Selling, general, and administrative.............. 9,848 (2,601) 138 (d) 7,385
- ----------------------------------------------------------------------------------------------------------------------------
Income from operations............................ $ 4,178 ($ 6) ($138) $ 4,034
Interest expense.................................. 2,590 (86) (70)(e) 2,434
Non-operating expense, net........................ (16) 45 0 29
- ----------------------------------------------------------------------------------------------------------------------------
Income before taxes............................... $ 1,604 $ 35 ($ 68) $ 1,571
Income taxes...................................... 829 (87) (27)(f) 715
- ----------------------------------------------------------------------------------------------------------------------------
Net income........................................ $ 775 $ 122 ($ 41) $ 856
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE> 6
SHOP VAC CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Financial Statements
The Shop Vac Consolidated column in the pro forma balance sheet as of March 31,
1998 and the pro forma statements of operations for the year ended December 31,
1997 and the three months ended March 31, 1998 include the European Group's
results for the full periods.
On May 28, 1998, the Registrant sold the European Group to Glen Dimplex for $7.5
million of cash. This sale is reflected in the pro forma balance sheet pro forma
adjustments column as follows:
(a) The cash proceeds less transaction costs of $600,000 reduce the current
portion of long-term debt by $1.5 million , long-term debt by $1.3 million
and the remaining $4.1 million is retained as cash.
(b) The pro forma adjustments column also reflects an increase of $700,000 in
deferred tax assets resulting from the loss on the disposition of the
European Group.
(c) Retained earnings reflects an estimated loss of approximately $1.1 million
(net of estimated transaction costs of $600,000 and tax benefits of
$700,000) on the sale as though the disposal had occurred on March 31,
1998.
The estimated loss of $1.1 million was computed as follows:
(amounts in millions)
<TABLE>
<CAPTION>
================================================================
<S> <C>
Cash proceeds........................................... $7.5
Less net assets sold, fees incurred, and taxes.......... 8.6
----------------------------------------------------------------
1.1
================================================================
</TABLE>
The pro forma statements of operations pro forma adjustments column for the year
ended December 31, 1997 and the three months ended March 31, 1998 reflect
adjustments to interest expense related to reduction of obligations under
capital leases and selling, general and administrative ("SG&A") expense related
to intercompany management charges as follows:
(amounts in thousands)
<TABLE>
<CAPTION>
=============================================================================================================
Year ended Three months ended
December 31, 1997 March 31, 1998
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
(d) Reversal of management charges to European Group $1,806 $138
(e) Reduction in interest expense related to capital lease
obligations 361 70
(f) Decrease in income taxes related to SG&A expense and
interest expense adjustments 578 27
=============================================================================================================
</TABLE>
Interest income from investment of cash proceeds in excess of those used to
reduce capital lease obligations is not reflected in the pro forma statements of
operations pro forma adjustments column for the year ended December 31, 1997 and
the three months ended March 31, 1998.
The pro forma statements of operations do not reflect the estimated loss on the
sale or any earnings from the investment of the proceeds in excess of the
amounts used to reduce capital lease obligations.
5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION SEQUENTIAL PAGE NO.
<S> <C> <C>
2.01 Agreement between Shop Vac Corporation and Glen Page 10
Dimplex dated as of April 25, 1998
2.02 Agreement between Shop Vac Corporation and Morphy Page 49
Richards Appliances Limited for the sale and purchase of the
whole of the issued share capital of Goblin Limited dated as
of May 28, 1998
2.03 Agreement between Shop Vac Corporation and Glen Page 63
Dimplex for the sale and purchase of the whole of the issued
share capital of Goblin Ireland Limited dated as of May 28,
1998.
2.04 Purchase Agreement between EIO Morphy Richards GmbH Page 77
and Shop Vac Vertriebs GmbH and Shop Vac Corporation for
the sale and purchase of the assets and assumption of the
liabilities of Shop Vac Vertriebs GmbH dated as of May 28,
1998.
2.05 Share Purchase Agreement between Shop Vac Corporation Page 83
and Carmen Nederland B.V. for the sale and purchase of the
whole of the issued share capital of FAM Nederland B.V.
dated as of May 28, 1998.
2.06 Transfer of Business Agreement between Shop Vac Page 89
Corporation and Goblin SARL for the sale and purchase of
the assets and assumption of the liabilities of the French
branch operation of Shop Vac Corporation dated as of May
28, 1998.
</TABLE>
6
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SHOP VAC CORPORATION
By / s / David A. Grill
--------------------------------
David A. Grill
Vice President and
Chief Financial Officer
Date: June 10, 1998
7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION SEQUENTIAL PAGE NO.
<S> <C> <C>
2.01 Agreement between Shop Vac Corporation and Glen Page 10
Dimplex dated as of April 25, 1998
2.02 Agreement between Shop Vac Corporation and Morphy Page 49
Richards Appliances Limited for the sale and purchase of the
whole of the issued share capital of Goblin Limited dated as
of May 28, 1998
2.03 Agreement between Shop Vac Corporation and Glen Page 63
Dimplex for the sale and purchase of the whole of the issued
share capital of Goblin Ireland Limited dated as of May 28,
1998.
2.04 Purchase Agreement between EIO Morphy Richards GmbH Page 77
and Shop Vac Vertriebs GmbH and Shop Vac Corporation for
the sale and purchase of the assets and assumption of the
liabilities of Shop Vac Vertriebs GmbH dated as of May 28,
1998.
2.05 Share Purchase Agreement between Shop Vac Corporation Page 83
and Carmen Nederland B.V. for the sale and purchase of the
whole of the issued share capital of FAM Nederland B.V.
dated as of May 28, 1998.
2.06 Transfer of Business Agreement between Shop Vac Page 89
Corporation and Goblin SARL for the sale and purchase of
the assets and assumption of the liabilities of the French
branch operation of Shop Vac Corporation dated as of May
28, 1998.
</TABLE>
<PAGE> 10 Exhibit 2.01
DATED 25 April 1998
(1) SHOP VAC CORPORATION
- and -
(2) GLEN DIMPLEX
---------------------------------------
AGREEMENT
---------------------------------------
Dibb Lupton Alsop
117 The Headrow
Leeds
LS1 5JX
Tel: 0345 26 27 28
Fax: 0113 245 2632
<PAGE> 11
CONTENTS
1. DEFINITIONS AND INTERPRETATION.........................................1
2. CONDITIONS.............................................................8
3. COMPLETION.............................................................9
4. WARRANTIES............................................................10
5. LIMITATION ON THE VENDOR'S LIABILITY..................................13
6. VENDOR'S UNDERTAKINGS.................................................14
7. RIGHT TO TERMINATE....................................................15
8. VENDOR'S COVENANTS....................................................15
9. INTELLECTUAL PROPERTY.................................................18
11. TRANSFER OF ASSETS....................................................19
12. FURTHER ASSURANCE.....................................................19
13. INFORMATION...........................................................20
14. IRISH TAX ASSET.......................................................20
15. ANNOUNCEMENTS.........................................................21
16. COSTS.................................................................21
17. SUCCESSORS AND ASSIGNMENT.............................................21
18. ENTIRE AGREEMENT......................................................22
19. VARIATIONS............................................................22
20. WAIVER................................................................23
21. AGREEMENT CONTINUES IN FORCE..........................................23
22. SEVERABILITY..........................................................23
23. NOTICES...............................................................23
25. COUNTERPARTS..........................................................24
26. GOVERNING LAW.........................................................24
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SCHEDULE 1....................................................................26
Details of the purchasers other than Glen Dimplex....................26
SCHEDULE 2
The Companies........................................................27
SCHEDULE 3....................................................................28
Completion...........................................................28
SCHEDULE 4....................................................................30
Operation of the Companies Pending Completion........................30
SCHEDULE 5....................................................................33
Grant Documentation..................................................33
SCHEDULE 6....................................................................34
Bank Documentation...................................................34
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<PAGE> 13
AGREED FORM DOCUMENTS
1 Sale and Purchase Agreements x 6
2 English Non Competition Deed
3 Legal Opinion in relation to the Vendor's capacity in contract etc
4 Trade Mark Assignment
5 Patent License
6 Lease variation
7 Disclosure Documentation
8 Balance Sheet as at 31 December 1997
9 List of Trademarks to be assigned
10 Deed of Indemnity
11 Debt of Assignment
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<PAGE> 14
THIS AGREEMENT is made 25 April 1998
BETWEEN:
(1) SHOP VAC CORPORATION a company incorporated in the state of New Jersey,
United States of America whose principal office is at 2323 Reach Road
Williamsport Pennsylvania 1770- 0307 USA ("the Vendor")
(2) GLEN DIMPLEX a company incorporated in Ireland whose registered office
is at 41 Ailesbury Road Dublin 4 ("Glen Dimplex")
WHEREAS:
(A) The Vendor has agreed to sell or to procure the sale of the Shares and
the Target Businesses to Glen Dimplex and certain other members of the
Glen Dimplex Group on and subject to the terms of the Sale and Purchase
Agreements.
(B) This Agreement sets out the conditions which need to be fulfilled prior
to the Sale and Purchase Agreements being completed and certain other
matters in relation to the Sale and Purchase Transactions.
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:
"AUSTRIAN AGREEMENT" means an agreement in the agreed form to
be made between the Vendor and the Austrian Purchaser relating
to the sale and purchase by the German Purchaser of the
Austrian Shares;
"AUSTRIAN COMPANY" means Shop Vac Ges.m.b.H. details of which
are contained in Schedule 2;
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<PAGE> 15
"AUSTRIAN PURCHASER" means Glen Electric Holdings GmbH details
of which are contained in Schedule 1;
"AUSTRIAN SHARES" means the whole of the issued share capital
of the Austrian Company;
"BANK DOCUMENTATION" means the documents short particulars of
which are contained in Schedule 6;
"BUSINESS DAY" means a day other than a Saturday or Sunday on
which banks are open for business in London;
"BUSINESS INTELLECTUAL PROPERTY" means all the Intellectual
Property owned by the Vendor exclusively used by or in
connection with the French Business and all the Intellectual
Property owned by the German Company exclusively used by or in
connection with the German Business;
"COMPANIES" means the Austrian Company, the Dutch Company, the
English Company and the Irish Company and "Relevant Company"
and "Company" shall be construed accordingly;
"COMPLETION" means the performance of all the obligations of
the parties hereto set out in clause 3;
"COMPLETION DATE" means the date which is two Business Days
following the day on which the last of the Conditions to be
satisfied shall have been fulfilled or waived being not later
than 30 June 1998 or such other date being not later than 30
June 1998 or such other date being not later than 31 July 1998
as shall be agreed in writing by the parties;
"CONDITIONS" means the conditions contained or referred to in
clause 2;
"CONFIDENTIAL INFORMATION" means information (however stored)
relating to or connected with the business customers or
financial or other affairs of any of the Companies or the
French Business or the German Business details of which are
not in the public domain at the relevant time including,
without limitation, information concerning or relating to:
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 16
the Intellectual Property Rights and any other property of any
of the Companies in the nature of intellectual property
(excluding any Intellectual Property of the Irish Company
licensed to the Irish Company by the Vendor) and the Business
Intellectual Property;
(ii) any technical processes, future projects, business
development or planning, commercial relationships and
negotiations; and
(iii) the marketing of goods or services including, without
limitation, customer, client and supplier lists, price lists,
sales targets, sales statistics, market share statistics,
market research reports and surveys and advertising or
other promotional materials and details of contractual
arrangements and any other matters concerning the clients or
customers of or other persons having dealings with any
of the Companies or the French Business or the German
Business;
"DEED OF INDEMNITY" means the deed of indemnity in the agreed
form to be executed by the Vendor in favour of each of the
Companies, the French Purchaser and the German Purchaser,
"DISCLOSURE DOCUMENTATION" means a disclosure letter of even
date herewith and the bundles of documentation in the agreed
form referred to therein and disclosed by the Vendor to Glen
Dimplex;
"DUTCH AGREEMENT" means an agreement in the agreed form to be
made between the Vendor and the Dutch Purchaser relating to
the sale and purchase by the Dutch Purchaser of the Dutch
Shares;
"DUTCH COMPANY" means FAM Nederland B.V. details of which are
contained in Schedule 2;
"DUTCH PURCHASER" means Carmen B.V. details of which are
contained in Schedule 1;
"DUTCH SHARES" means the whole of the issued share capital of
the Dutch Company;
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<PAGE> 17
"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;
"ENGLISH AGREEMENT" means an agreement in the agreed form to
be made between the Vendor and the English Purchaser relating
inter alia to the sale and purchase by the English Purchaser
of the English Shares;
"ENGLISH COMPANY" means Goblin Limited details of which are
contained in Schedule 2;
"ENGLISH PURCHASER" means Morphy Richards Appliances Limited
details of which are contained in Schedule 1;
"ENGLISH SHARES" means the whole of the issued share capital
of the English Company;
"FRENCH AGREEMENT" means an agreement or agreements in the
agreed form to be made between the Vendor and the French
Purchaser relating inter alia to the said and purchase by the
French Purchaser of the French Business and its related
assets;
"FRENCH BUSINESS" means the business of selling, servicing and
distributing vacuum cleaners wet and dry floor cleaners, steam
cleaners and other like equipment carried on by the Vendor in
France as at the date hereof under the name of "ShopVac
France";
"FRENCH PURCHASER" means Glen Electric Holdings GmbH or such
other subsidiary of Glen Dimplex as Glen Dimplex shall notify
to the Vendor prior to the Completion Date;
"GERMAN AGREEMENT" means an agreement in the agreed form to be
made between the German Company and the German Purchaser
relating inter alia to the sale and purchase by the German
Purchaser of the German Business and its related assets;
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<PAGE> 18
"GERMAN BUSINESS" means the business of selling, servicing and
distributing vacuum cleaners, wet and dry floor cleaners,
steam cleaners and other like equipment carried on by the
German Company in Germany;
"GERMAN COMPANY" means ShopVac Vertriebs GmbH details of which
are contained in Schedule 2;
"GERMAN PURCHASER" means EIO Morphy Richards GmbH details of
which are contained in Schedule 1;
"GLEN DIMPLEX GROUP" means Glen Dimplex and its subsidiaries
from time to time;
"GRANT DOCUMENTATION" means documentation recording the
various grants and conditions attaching thereto made to the
Irish Company short particulars of which are contained in
Schedule 5;
"GROUP" means each Company, the French Business and the German
Business, and references to a "member of the Group" or a
"Group member" shall be construed accordingly;
"INTELLECTUAL PROPERTY" includes patents, inventions,
know-how, trade secrets and other confidential information,
registered designs, copyrights, design rights, rights
affording equivalent Protection to copyright and design
rights, trade marks, service marks, business names, trade
names, moral rights, registration of an application to
register any of the aforesaid items, rights in the nature of
any of the aforesaid items in any country, rights in the
nature of unfair competition rights and rights to sue for
passing-off;
"INTELLECTUAL PROPERTY RIGHTS" means (subject to Clause 8) all
Intellectual Property owned and "exclusively used, by each of
the Companies in, or in connection with, its business;
"IRISH AGREEMENT" means an agreement in the agreed form to be
made between the Vendor and Glen Dimplex relating inter alia
to the said and purchase by Glen Dimplex of the Irish Shares;
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<PAGE> 19
"IRISH COMPANY" means Goblin Ireland Limited details of which
are contained in Schedule 2;
"IRISH SHARES" means the whole of the issued share capital of
the Irish Company;
"MERGERS ACT" means the Mergers, Takeovers, and Monopolies
(Control) Act, 1978 of Ireland (as amended by the Restrictive
Practice (Amendment) Act, 1987 and the Competition Acts,
1991-1996) of Ireland;
"NON COMPETITION DEEDS" means in relation to the English
Company the deed in the agreed form and in relation to the
other Companies and the French Purchaser and the German
Purchaser deeds to be entered into in substantially the same
form as such deed (with such amendments as are necessary to
ensure that such deeds comply with and are enforceable under
the domestic laws of the Relevant Company and the French
Purchaser and German Purchaser) provided that the restrictions
in such deeds shall be no more onerous than those contained in
clause 8 of this Agreement and the territories to be set out
in clause 3.2.1 of such deeds or the equivalent provision
shall be the territories in which the Relevant Company or
Relevant Target Business now operates or into which sales are
made;
"PURCHASERS SOLICITORS" means Dibb Lupton Alsop of 117 The
Headrow, Leeds LS I 5JX;
"RELEVANT BUSINESS" means any business involving the
development, design, manufacture, assembly, testing, selling,
distribution, installation and service or vacuum cleaners, wet
and dry floor cleaners or steam cleaners or other like
equipment;
"RELEVANT PRODUCTS" means vacuum cleaners, wet and dry floor
cleaners or steam cleaners or other like equipment;
"RELEVANT PURCHASER" means whichever company is the Purchaser
of the Relevant Shares or the Relevant Target Business;
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<PAGE> 20
"SALE AND PURCHASE AGREEMENTS" means each of Austrian
Agreement, the Dutch Agreement, the English Agreement, the
French Agreement, the Irish Agreement and the German
Agreement;
"SALE AND PURCHASE TRANSACTIONS" means each of the sale and
purchase transactions to which the Sale and Purchase
Agreements respectively apply;
"SHARES" means the Austrian Shares, the Dutch Shares, the
English Shares and the Irish Shares and "RELEVANT SHARES" and
"SHARES" shall be construed accordingly;
"TARGET BUSINESS" means the French Business or the German
Business as the case may be and "Target Businesses" and
"Reactant Target Business" shall be construed accordingly;
"TRADE MARKS" means those trademarks details of which are set
out in the list of trademarks in the agreed form;
"VENDOR'S GROUP" means the Vendor and its subsidiary
undertakings from time to time;
"VENDOR'S SOLICITORS" means Lawrence Graham of 190 Strand,
London WC2R I JN;
"WARRANTIES" means the warranties contained in clause 4.1. and
clause 4.2.
1.2 In this Agreement where the context admits:
1.2.1 sections 5, 6, 8 and 9 of schedule I to the
Interpretation Act 1978 apply in the same way as they
do to statutes;
1.2.2 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;
1.2.3 reference to any gender includes the other genders;
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<PAGE> 21
1.2.4 the index, headings and any descriptive notes are for
ease of reference only and shall not affect the
construction or interpretation of this Agreement;
1.2.5 this Agreement incorporates the Schedules to it;
1.2.6 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 initialed by or
on behalf of the parties.
2. CONDITIONS
2.1 The sale and purchase of the Shares and the Target Businesses
is in all respects conditional upon:
2.1.1 2.1.1.1 the Minister for Enterprise Trade and Employment
of Ireland (the "Minister") stating in writing
that she does not intend to make an order under
Section 9 of the Mergers Act in relation to the
proposed purchase of the Irish Shares; or
2.1.1.2 in the event of the Minister making an order
subject to conditions, Glen Dimplex notifying
the Vendor in writing that it accepts such
conditions such acceptance, in the case of a
condition of a minor nature only, not to be
unreasonably withheld and such acceptance or
non acceptance not to be unreasonably delayed;
or
2.1.1.3 in the event of no such order being made and
the Minister not stating in writing that she
does not intend to make such an order, the
relevant period within the meaning of Section 6
of the said Act elapsing; and
2.1.2 the Irish Company having not more than 168 employees
and for these purposes any employee to whom the Irish
Company has after the date of this Agreement but prior
to the Completion Date issued notices of redundancy
(complying in all respects with applicable legislation
and the terms of each agreement between the
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Irish Company and any recognized trade union applicable
to such employees) shall not be counted.
2.2 The Vendor hereby undertakes to Glen Dimplex that it will use
all reasonable endeavors to procure that the Condition
referred to in clause 2.1.2 is satisfied on or prior to 30
June 1998.
2.3 Each of the Vendor and Glen Dimplex hereby agree with each
other to use all reasonable endeavors to procure that the
Condition referred to in clause 2. 1.1 is fulfilled on or
prior to 30 June 1998.
2.4 Glen Dimplex may waive the Condition set out in clause 2.1.2
by notice in writing to the Vendor.
2.5 If the Conditions have not each been fulfilled (or in the case
of clause 2.1.2 waived) by 30 June 1998 or such later date
prior to 31 July 1998 as may be agreed in writing by the
parties:
2.5.1 neither of the parties shall have any further rights
or obligations under this Agreement save in respect
of the provisions of this clause 2.5 and clauses 12,
13, 14, 15, 16, 17, 19, 21, and 22 which shall
continue in full force and effect; and
2.5.2 upon the written demand of the Vendor, Glen Dimplex
shall return or procure the return to the Vendor of
all documents and information supplied by the Vendor
or any member of the Vendor's Group or any adviser to
any such company to Glen Dimplex or any member of the
Glen Dimplex Group or any adviser to any such company
and Glen Dirnplex shall not disclose to any third
party or use any Confidential Information and shall
procure that no member of the (Glen Dimplex Group nor
any adviser to any such company shall disclose to any
third party, or use, any Confidential Information.
3. COMPLETION
3.1 On the Completion Date:
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3.1.1 the Vendor shall enter into (and in the case of the
German Agreement shall procure the German Company to
enter into and in the case of the Austrian Agreement
shall procure Shop Vac Properties International
Limited to enter into) and Glen Dimplex shall procure
that the Relevant Purchaser shall enter into the Sale
and Purchase Agreements each of which shall on the
Completion Date be completed in accordance with its
terms; and
3.1.2 on completion of the Sale and Purchase Agreements
each of the parties shall comply with the provisions
of Schedule 3.
3.2 Conditional upon completion of the Sale and Purchase
Transactions, and immediately thereafter the Vendor shall
enter into the Non Competition Deeds which shall be delivered
to the Purchaser duly executed and thereupon the Purchaser
shall procure payment to the Vendor by the Relevant Company or
the Relevant Purchaser of the amount specified in each such
deed.
3.3 Glen Dimplex undertakes to procure the due and punctual
performance by each of the Relevant Purchasers of its
respective obligations under each of the Sale and Purchase
Agreements to which it is a party and Glen Dimplex undertakes
to indemnify the Vendor against any failure by any of the
Relevant Purchasers so to perform such obligations.
4. WARRANTIES
4.1 The Vendor represents and warrants to Glen Dimplex as at the
date of this Agreement that it is not aware of any material
event, fact, matter or circumstance relating to:
4.1.1 taxation; or
4.1.2 actual, threatened or pending litigation or
arbitration or other dispute resolution proceedings;
or
4.1.3 actual, threatened or pending disputes with any
customer or supplier; or
4.1.4 actual, threatened or pending disputes with any
employee; or
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4.1.5 intellectual property rights; or
4.1.6 any recurring fault or defect in any product or
failure of any product to comply with any applicable
legislation, regulations or standards
in each case relating to, concerning or affecting any of the Companies
which has not been fairly disclosed to Glen Dimplex in the Disclosure
Documentation and which would or could in any such case involve,
concern or give rise to a loss to the Relevant Company of US$200,000 or
more (or the equivalent in any other currency).
4.2 The Vendor represents and warrants to Glen Dimplex as at the date of
this Agreement that so far as it is aware (and save to the extent
fairly disclosed in the Disclosure Documentation) the consolidated net
assets of the Companies and the Target Businesses (as shown in the
consolidated balance sheet in the agreed form for the Companies and the
Target Businesses as at 31 December 1997) have not suffered any
material diminution in the period from 31 December 1997 to the date of
this Agreement other than as a result of trading in the ordinary course
of business and/or fluctuations in exchange rates since 31 December
1997. For the purpose of this clause 4.2 only the 'ordinary course of
business' shall be deemed to include the reduction by the Vendor of
loss making sales activities in the Group and 'material" shall mean a
diminution in net assets of US$200,000 or more.
4.3 The extent of the Vendor's awareness for the purposes of clause 4.1 and
clause 4.2 shall be deemed to be limited only to the knowledge of
Matthew Miller he having made due and careful enquiry of Connor Stack
and Joe Clifford (in relation to the Irish Company); Adrian Goodrich,
Martin Cartledge, Derek Sackett and John Harrington (in relation to the
English Company), Werner Hierzberger (in relation to the Austrian
Company) and Heine de Rooij and Theo Fiolet (in relation to the Dutch
Company).
4.4 The Vendor acknowledges that Glen Dimplex is entering into this
Agreement in reliance on the Warranties which have also been given as
representations and with the intention of inducing Glen Dimplex to
enter into this Agreement and that Glen Dimplex has been induced to
enter into this Agreement on the basis of and in full reliance upon
them.
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4.5 The rights and remedies of Glen Dimplex in respect of any breach of the
Warranties shall survive Completion.
4.6 The Vendor waives and may not enforce any right which it may have in
respect of any misrepresentation, inaccuracy or omission in or from any
information or advice supplied or given by any of the Companies or
their respective officers or employees in enabling the Vendor to give
the Warranties.
4.7 The Vendor shall pay to Glen Dimplex in the event of a breach by the
Vendor of the Warranty contained in clause 4.1 an amount equal to the
loss suffered by the Relevant Company as is referred to in Clause 4.1
and in the event of a breach by the Vendor of the Warranty contained in
clause 4.2 an amount equal to the diminution in the consolidated net
assets of the Companies and the Target Businesses in the period from 31
December 1997 to the date hereof.
4.8 Save as disclosed in the Disclosure Documentation no information
relating to a Company of the Target Businesses shall prevent or limit a
claim made by Glen Dimplex for breach of the Warranties. The Vendor may
not invoke Glen Dimplex knowledge of a fact or circumstance which might
make the Warranties untrue, inaccurate, incomplete or misleading as a
defence to a claim for any breach of the Warranties.
4.9 The rights of Glen Dimplex under sub-clause 4.7 shall be in addition
and without prejudice to any other right or remedy available to it
under this Agreement or otherwise.
4.10 Glen Dimplex accepts the benefit of this clause 4 (including, without
limitation, the Warranties) for itself and as trustee for each
undertaking which is at any time a subsidiary undertaking or Glen
Dimplex. The Vendor acknowledges that after Completion Glen Dimplex may
reorganise the Group (which may involve the transfer of an asset or a
liability of a Company or of some or all of the assets or liabilities
of the French Business, or the German Business to an undertaking which
is a subsidiary undertaking of Glen Dimplex) in reliance on the
Warranties provided that the vendor's liability pursuant to this Clause
4.1 for any loss suffered by any Company or for a breach of the
Warranty set out in clause 4.2 shall not be increased as a result of
any such reorganisation and shall be
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limited to the liability the Vendor would have suffered had
such reorganisation not taken place.
5. LIMITATION ON THE VENDOR'S LIABILITY
5.1 The aggregate liability of the Vendor in respect of all claims
under the Warranties shall not exceed US$5,000,000.
5.2 No amount shall be payable by the Vendor in respect of any
claim under the Warranties unique and until the aggregate
cumulative liability of the Vendor in respect of all such
claims exceeds US$600,000 in which case the Vendor shall be
liable for both the initial US$600,000 and the excess.
5.3 The Vendor shall not be liable for any claim under the
Warranties unless the Vendor is given notice of that claim
stating in reasonable detail the nature of the claim and, if
practicable, the amount claimed, on or before the date failing
twelve months from the Completion Date.
5.4 Clause 5.1 and 5.3 (inclusive) shall not apply to any claim
where it can be proved on the balance of probabilities that
such claim arises because of a dishonest or fraudulent act or
omission or fraudulent misrepresentation of or by the Vendor
prior to Completion.
5.5 The Vendor will not be liable under the Warranties for any
claim in respect of any matter to the extent that a specific
provision has been made in the audited accounts of any
Relevant Company for the period to 31 December 1997 in respect
of that matter.
5.6 Glen Dimplex shall procure that the Relevant Company mitigates
any loss or liability which gives rise to any such claim under
the Warranties.
5.7 If Glen Dimplex or the Relevant Company is entitled to recover
from a third party (including insurers) any sum in respect of
a matter or thing which is, or has been, the subject of a
claim under the Warranties, at the request of the Vendor Glen
Dimplex will take, and will procure that the Relevant Company
takes, such action (including lending its
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name to any legal action) as the Vendor may reasonably require
(at the expense of the Vendor) in connection with that matter.
5.8 If the Vendor has paid to Glen Dimplex an amount in respect of
a claim under the Warranties and Glen Dimplex or the Relevant
Company subsequently receives from a third party (including
insurers) a sum which constitutes a double recovery, Glen
Dimplex must immediately repay to the Vendor a sum equal to
the amount which fairly represents the double recovery, after
deducting an amount equal to the reasonable costs and expenses
incurred by Glen Dimplex and the Relevant Company in
recovering that amount from the third party.
5.9 Any amount paid to Glen Dimplex by the Vendor in respect of a
claim under the Warranties will be deemed to be a reduction in
the consideration payable to the Vendor under any relevant
Sale and Purchase Agreement.
5.10 If any claim under the Warranties is based upon a liability or
loss of a Relevant Company which is only contingent, the
Vendor will not be liable to make any payment in respect of it
unless and until the contingent liability or loss becomes an
actual liability or loss.
5.11 No breach of the Warranties shall give rise to a right on the
part of Glen Dimplex to rescind or terminate this Agreement
following the Completion Date.
5.12 Glen Dimplex undertakes to extend the benefit of its group
insurance arrangements to the Group with effect from the
Completion Date.
6. VENDOR'S UNDERTAKINGS
6.1 Between the execution of this Agreement and Completion the
Vendor agrees that it will:
6.1.1 procure that each of the Companies complies with the
provisions of Schedule 4; and
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6.1.2 forthwith disclose in writing to Glen Dimplex any
event or circumstance which may become known to it or
any of the Companies which would be a breach of
clause 6.
1. 1.
7. RIGHT TO TERMINATE
7.1 If on or before the Completion Date, without prejudice to any
other remedies which may be available to it whether under this
Agreement or otherwise Glen Dimplex reasonably considers that
the Vendor is in material breach of the undertakings contained
in clause 6.1.1 Glen Dimplex may by notice to the Vendor elect
to terminate this Agreement and for the purposes of this
clause 7.1 a material breach of the undertakings contained in
clause 6.1.1 shall be any breach which results in any of the
Companies or either of the Target Businesses incurring any
expense or suffering any cost claim liability damage or loss
of US$200,000 or more (or the equivalent in any other
currency).
7.2 If Glen Dimplex terminates this Agreement pursuant to clause
7.1 each party's further rights and obligations shall cease
immediately upon termination, but termination she not affect a
party's accrued rights and obligations as at the date of
termination.
8. VENDOR'S COVENANTS
8.1 The Vendor undertakes to and covenants with Glen Dimplex on
its own behalf and for each Relevant Purchaser that (save with
the consent in writing of Glen Dimplex and save as provided in
clause 9) it will not (and it shall procure that each member
of the Vendor's Group and Matthew Miller and Jonathan Miller
shall not) at any time after Completion:
8.1.1 time or procure or cause or (so far as it is able)
permit the use of any name or names identical or
similar to or including the words "Goblin", "FAM" or
"Aqua Vac" or any colourable imitation thereof in
connection with any activity whatsoever;
8.1.2 (save as required by law) disclose or divulge to any
person (other than to officers or employees of the
Purchaser whose province it is to know the same) or
use (other than for the benefit of the Purchaser) any
Confidential Information which
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may be within or have come to its or their knowledge and it
shall use all reasonable endeavours to prevent such
publication, disclosure or misuse of any Confidential
Information.
8.2 The Vendor agrees with Glen Dimplex on its own behalf and for each
Relevant Purchaser that it shall not and shall procure that no member
of the Vendor's Group and that neither Matthew Miller or Jonathan
Miller will, for a period of two years after the Completion Date either
alone or jointly with, through or as manager, adviser, consultant or
agent for any person, directly or indirectly:
8.2.1 operate, or be engaged, concerned or interested in, or assist,
a Relevant Business:
8.2.1.1 within the United Kingdom;
8.2.1.2 within the Republic of Ireland;
8.2.1.3 within Austria;
8.2.1.4 within France;
8.2.1.5 within Germany;
8.2.1.6 within the Netherlands,
8.2.1.7 within Turkey;
8.2.1.8 within South Africa,
8.2.1.9 within Switzerland;
8.2.1.10 within Jeddah;
8.2.1.11 within the Czech Republic
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8.2.2 (in competition with the Relevant Business as carried
on by the Group as at the Completion Date) either
seek to procure orders from, or do business with, or
procure directly or indirectly any other person to
procure orders from or do business with, any person
who has been a customer of the French Business or the
German Business or the business of any of the
Companies at any time during the period of twelve
months before the Completion Date;
8.2.3 in connection with any Relevant Business engage,
employ, solicit or contact with a view to the
engagement or employment of. by any person, any
employee, officer or manager of the French Business
or the German Business or any of the Companies or any
person who has been an employee, officer or manager
of the French Business or the German Business or any
of the Companies in the twelve months before the
Completion Date provided that the foregoing shall not
apply to Matthew Miller's employment by the Vendor;
to the intent that each of the foregoing shall constitute
entirely separate and independent restrictions in relation to
each of the French Business, the German Business and each of
the Companies.
8.3 The Vendor undertakes to and covenants with Glen Dimplex on
its own behalf and for each Relevant Purchaser that (save with
the consent in writing of Glen Dimplex) it will not (and it
shall procure that each member of the Vendor's Group and
Matthew Miller and Jonathan Miller shall not) for a period of
two years after the Completion Date do or say anything which
is likely or intended to damage the goodwill or reputation of
any of the Companies, or of any business carried on by any of
the Companies or of either of the Target Businesses or which
may lead any person to cease to do business with any of the
Companies or the Relevant Purchaser in relation to the
Relevant Target Business on substantially equivalent terms to
those previously offered or not to engage in business with any
of the Companies or the Relevant Purchaser in relation to the
Relevant Target Business.
8.4 The Vendor agrees and acknowledges that the restrictions
contained in this clause 8 are fair and reasonable and
necessary to assure to Glen Dimplex and each Relevant
Purchaser the full value and benefit of the Shares and the
Relevant Businesses but in the event that any
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such restriction shall be found to be void or unenforceable
but would be valid and effective if some part or parts thereof
were deleted such restriction shall apply with such deletion
as may be necessary to make it valid and effective
9. INTELLECTUAL PROPERTY
9.1 The Vendor will retain all rights in connection with:
9.1.1 the trade mark/trade name "Aqua Vac' in North
America, Central America, South America, Australia
and New Zealand; and
9.1.2 the trademark/trade name 'Goblin" in Australia and
New Zealand.
9.2 The Vendor will licence the Irish Purchaser to use certain
patents in accordance with the patent licence referred to in
paragraph 2 of Schedule 3.
9.3 Glen Dimplex will not and will procure that the Companies and
the Target Businesses will not use or expressly grant consent
to the use of the name "Shop Vac" or any associated trademark
or any colourable imitation thereof or any mark confusingly
similar thereto at any time after 3 months from the Completion
Date.
9.4 The Vendor hereby agrees to assign the Trade Marks to the
Irish Company and further agrees that it will execute all
documents,, including but not limited to assignments, deeds,
powers and authorisations necessary to effect the transfer of
the legal and beneficial title in the Trade Marks to the
Purchaser
10. EXCEPTION TO VENDOR'S COVENANTS
Nothing in this Agreement shall prevent any member of the Vendor's
Group:
10.1 from employing as a consultant any person who is at the
Completion Date hereof a former employee of any member of the
Group or whose contract of services with any member of the
Group has been terminated after the Completion Date for the
purposes only of assisting any member of the Vendor's Group in
the preparation of any financial or tax statement or
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account required in connection with that member of the
Vendor's Group's legal tax or accounting obligations;
10.2 from selling in good faith any Relevant Product to a customer
in North America which is not a member of the Vendor's Group
notwithstanding that the customer may require the Relevant
Product to be delivered to, or invoiced to any customer in,
any territory referred to in clause 9.2.1 Provided that any
such Relevant Product is not branded with or marketed under
the trade marks Goblin, Fam or Aqua Vac or any mark or other
indication of a connection in the course of trade confusingly
similar thereto.
11. TRANSFER OF ASSETS
The Vendor hereby undertakes to Glen Dimplex to procure that in the
event that the Vendor or any other member of the Vendor's Group owns
any assets other than Intellectual Property Rights which are used by
any of the Companies or either of the Target Businesses then the Vendor
or such member of the Vendor's Group (as the case may be) shall if such
assets arc used exclusively by (or are beneficially owned by) any of
the Companies or the Relevant Target Business transfer gratuitously
such as-sets absolutely to Glen Dimplex, the Relevant Purchaser or such
of the Companies as Glen Dimplex shall so direct.
12. FURTHER ASSURANCE
Upon or as soon as reasonably practicable after Completion:
12.1 the parties shall at the request of Glen Dimplex 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, the Sale and Purchase Agreements and the
Non Competition Deeds; and
12.2 the parties shall use all reasonable endeavours, to procure
the release of the Vendor to its reasonable satisfaction from
all its obligations under the Rank Documentation and the
Careened Documentation. Until such release is procured Glen
Dimplex shall indemnify the Vendor against any loss, liability
or obligation arising therefrom.
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13. INFORMATION
13.1 The Vendor shall use its reasonable endeavours to provide or
procure to be provided to Glen Dimplex all such information in
its possession or under its control as Glen Dimplex shall from
time to time reasonably require relating to the business and
affairs of the Companies, the French Business and the German
Business and in any case where such information is not the
exclusive property or the Companies and/or the French Business
and/or the German Business will use its reasonable endeavours
to give or procure to be given to Glen Dimplex its directors
and agents access to such information and will permit Glen
Dimplex to take copies of the same.
13.2 Glen Dimplex shall provide the Vendor with:
13.2.1 access to such income statements, balance sheets,
cash flow statements and other financial data of the
Companies and the Target Businesses to the
Completion Date as the Vendor shall reasonably
require; and
13.2.2 at the expense of the Vendor, such copies of tax
returns and tax receipts for the Companies and the
Target Businesses to the Completion Date as the
Vendor shall reasonably require;
in each such cause to the extent that the same is in the
possession or control of Glen Dimplex or the Companies.
13.3 Glen Dimplex shall provide the Vendor with reasonable access
to such of the accounting personnel of the Companies and/or
the Target Businesses as the Vendor may reasonably require to
assist it in any matters arising from the tax audit of the
Target Businesses.
14. IRISH TAX ASSET
The Vendor on behalf of itself and each other member of the Vendor's
Group hereby acknowledge.,, that no member of the Vendor's Group has
any interest in the Irish Tax Asset (as defined below) and confirms
that all property right and interest in the Irish Tax Asset belongs
absolutely to the Irish Company. For the purposes of this clause 14 the
Irish Tax Asset means the asset referred to
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in note 13 on page 17 of the audited financial statements of the Irish
Company as at 31 December 1997.
15. ANNOUNCEMENTS
No announcement or communication concerning this Agreement shall be
made by or on behalf of the parties hereto without the prior approval
of the other or others (such approval not to be unreasonably withheld
or delayed) save for announcements required by law or the rules of the
Securities and Exchange Commission or to employees, customers,
suppliers and agents of the Companies and/or the Relevant Businesses
and/or Glen Dimplex and/or any company which is a member of the Glen
Dimplex Group in such form as may be reasonably required by Glen
Dimplex.
16. 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.
17. SUCCESSORS AND ASSIGNMENT
17.1 This Agreement shall be binding upon and cnure for the benefit
of each party's successors in title but shall not be
assignable save that:
17.1.1 Glen Dimplex may assign the whole or any part of the
benefit of this Agreement or the Warranty applicable
to any Company or Companies or a Relevant Target
Business to any transferee of any shares in the
capital of any such Company or Companies or any
transferee of a Relevant Target Business provided
that such transferee is a member of the Glen Dimplex
Group; and
17.1.2 Glen Dimplex may assign its rights under this
Agreement or the Warranty to any company within the
Glen Dimplex Group.
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17.2 Except as otherwise expressly provided, all rights and benefits
under this Agreement are personal to the parties and may not be
assigned at law or in equity without the prior written consent
of each other party.
18. ENTIRE AGREEMENT
18.1 This Agreement (including the Schedules hereto) and any
documents in the agreed form ("the Acquisition Documents")
constitute the entire agreement between the parties with
respect to the subject matter of this Agreement.
18.2 Except for any misrepresentation or breach of warranty which
constitutes fraud:
18.2.1 the Acquisition Document; supersede and extinguish
any representations and warranties previously given
or made other than those contained in the
Acquisition Documents;
18.2.2 each party acknowledges to the other (and shall
execute the Acquisition Documents in reliance upon
such acknowledgment) that it has not been induced
to enter into any such documents by relied upon any
representation or warranty other than the
representations and/or warranties contained
therein;
18.2.3 each party hereby irrevocably and unconditionally
waives any right it may have to claim damages or to
rescind this Agreement or any of the other
Acquisition Documents by reason of any
misrepresentation and/or warranty not set forth in
any such document.
19. 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.
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20. 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 am
cumulative and not exclusive of any rights and remedies provided by
law.
21. 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.
22. 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.
23. NOTICES
23.1 Any notice to be given pursuant to the terms of this Agreement
to the Vendor shall be given in writing;
in the case of the Vendor to Shop Vac Corporation, Fax 001
717326 0422; 2323 Reach Road, Williamsport, Pennsylvania 17701
-0307 USA, Attention: D Grill and
in the case of Glen Dimplex to Glen Dimplex, Fax 00 353 1 283
8371, 41 Ailesbury Road, Dublin 4, Attention: S O'Driscoll
or to such other person and/or address as may have been
notified to the other parties in accordance with this clause.
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23.2 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 m&il)
and in the case of facsimile transmission on completion of the
transmission Provided that the sender shall have received
printed confirmation of transmission.
24. REGISTRATION
Any provision of this Agreement by virtue of which it (or any agreement
or arrangement of which it forms part) is subject to registration under
the Restrictive Trade Practices Acts 1976 and 1977 shall not take
effect until the day after the required particulars of it have been
submitted to the Director General of Fair Trading in accordance with
the requirement of those Acts.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed by one or more of the parties hereto shall
constitute an original but all of which shall constitute one and the
same instrument.
26. GOVERNING LAW
26.1 This Agreement shall be governed by and construed in
accordance with the laws of England.
26.2 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.
26.3 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 26 and any
claim that any such Proceedings have been brought in an
inconvenient form and
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 38
further irrevocably agree that a judgment 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.
26.4 The Vendor expressly and specifically agrees and accepts the
terms of this clause and signs this Agreement in recognition
of such agreement and acceptance.
26.5 The Vendor appoints te 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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<PAGE> 39
SCHEDULE I
Details of the purchasers other than Glen Dimplex
<TABLE>
<CAPTION>
COMPANY REGISTERED OR PRINCIPAL OFFICE COUNTRY OF INCORPORATION
<S> <C> <C>
Morphy Richards Appliances P 0 Box 129 England
Limited Mexborough
South Yorkshire
S64 SAJ
Carmen Nederland B.V. P 0 Box 201 Holland
Flevolaan 21
1380 AE Weesp
The Netherlands
EIO Morphy Richards GmbH Koppelsdorfer Str 132 Germany
Postfach 208
96505 Sonneberg
Germany
Glen Electric Holdings GmbH Koppelsdorfer Str 132 Germany
Postfach 208
96505 Sonneberg
Germany
</TABLE>
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 40
SCHEDULE 2
The Companies
<TABLE>
<CAPTION>
Name and registered Number Percentage owned by the
and registered office or Date and place of Vendor subject to
principal office incorporation Directors and Secretary Issued share capital declaration of Trust
<S> <C> <C> <C> <C>
Goblin Limited England J Miller 900 Ord(pound)1 100
New Yorkshire House M Miller 2,135,000 Ord US$1
Don Pedro Avenue 1,100 Pref(pound)1
Normanton
WF6 1TT
Goblin Ireland Limited Ireland J Miller 600,000(pound)1 (Irish) 100
Clash Industrial Estate M Miller
Tralee C Stock
Co Kerry J Clifford
FAM Nederland BV Netherlands M Miller 1,300,000 Guilders 100
Helflheuvelpassage 14/05
Postbus 2095
5202CB's Hertogenbosch
Shop Vac Ges.m.b.H. Austria M Miller 500,000 1 Aus 100
Eduard-Ast Strasse W Hierzburger Schillings
A-8073 Feldkirchen/Graz
</TABLE>
27
<PAGE> 41
SCHEDULE 3
Completion
1. The Vendor shall repay or procure the repayment of all sums owed by it
or any pawn connected with it to each Relevant Companies and each
Relevant Company shall repay to the Vendor all sums owed by it to the
Vendor.
2. The Vendor shall enter into a patent license in the agreed form under
which the Vendor shall licence certain patents to the Irish Purchaser.
3. The Vendor and shall enter into a trade mark assignment in the agreed
form under which the Vendor will transfer ownership of certain trade
marks to the Irish Purchaser.
4. The Vendor will procure that the English Company enters into a deed of
variation in the agreed form in favour of the landlord of the property
occupied by the English Company namely, New Yorkshire Limited.
5. The Vendor shall deliver or procure that them are delivered to Glen
Dimplex (or as it shall direct):
5.1 all credit cards in the name of or for the account of the
Relevant Companies in the possession of any person resigning
from his office or employment on Completion;
5.2 the documents of title relating to the Business intellectual
Property and Intellectual Property Rights or any licences of
Intellectual Property in favour of any member of the Group-,
5.3 subject to paragraph I above duly executed deeds of release in a
form to be agreed releasing the Relevant Companies 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 and from any
guarantee or security given by any such Relevant Company in
respect of the obligations of the Vendor or any other member of
the Vendor's Group (other than the Companies);
5.4 letters in a form to be agreed from third parties holding
moulds dyes and tooling owned by the English Company and the
Irish Company respectively confirming that each such third
party has no right of ownership or lien in respect of or over
such moulds, dyes and tooling;
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 42
5.5 letters in a form to be agreed from each of Mr and Mrs M
Miller and Mr. J. Miller resigning as directors employees of
each Relevant Company and confirming that they have no claim
against any such company;
5.6 evidence satisfactory to Glen Dimplex of the transfer by
Goblin Ireland Limited to the Vendor (or another member of the
Vendor's Group (not being one of the Companies) of the shares
owned by it in Shop Vac Ireland Limited;
5.7 duly executed effective releases of any security granted by
the Vendor (or any other member of the Vendor's Group) over
the Shares or any assets of the Target Businesses.
5.8 a letter in a form to be agreed from the German Company to the
Dutch Company acknowledging the ownership of the Dutch Company
of all receivables invoiced by the German Company, and
5.9 duly executed the debt assignment in the agreed form.
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 43
SCHEDULE 4
Operation of the Companies Pending Completion
The Vendor covenants with the Purchaser that in the period from the date of this
Agreement to Completion it shall and will procure that each Company and each of
its Subsidiaries] shall (unless Glen Dimplex expressly otherwise agrees in
writing):
1. continue its business in the ordinary and usual course and so as to
maintain the same as a going concern;
2. not dispose of or agree to dispose of or acquire or agree to acquire
any assets or stock (other than in the normal course of business) or
assume or incur, or agree to assume or incur a liability, obligation or
expense (actual or contingent) except in the usual course of its
business;
3. not merge or amalgamate or agree to merge or amalgamate its business
with any other company;
4. not enter into any scheme or arrangement with creditors;
5. save as contemplated by the provisions of this Agreement not enter into
any contract transaction or arrangement with the Vendor,
6. not pass any shareholders' resolution;
7. not create, allot, issue, acquire redeem or repay any share or loan
capital or agree, arrange or undertake to do any of those things or
acquire or agree to acquire shares or any other interest in any other
company;
8. not enter into any long term contract or any contract or arrangement
involving expenditure or liabilities in excess of US$50,000 (or the
equivalent in any other currency) or undertake any unusual or new form
of expenditure;
9. not amend or terminate any agreement, arrangement or obligation to
which it is a party;
10. not engage in any transaction except on an arm's length basis in the
ordinary course of business;
11. not increase or agree to increase the remuneration (including without
limitation salary, bonuses, commission, profits in kind and pension
contributions) of any of its directors or employees or vary
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 44
the terms of employment of or dismiss any employee or engage any new
employee or agree to provide any gratuitous payment or benefit to any
person;
12. not amend or discontinue any pension schemes or communicate to any
employee any plan proposal or intention to amend discontinue or
exercise any discretion in relation to any such schemes;
13. not alter or agree to alter the terms of any existing borrowing
facilities or arrange additional borrowing facilities;
14. not create or agree to create any Encumbrance over any of its assets or
make any loans or enter into any guarantee or stand surety for the
obligations of any third party;
15. not grant any credit except normal trade credit given in the ordinary
course of business;
16. not declare make or pay any dividend or other distribution (the Vendor
hereby confirming that no such dividend or the distribution has been
made since 31 December 1997 save for any dividend specifically provided
for in the balance sheet in the agreed form of the Companies and the
French Business and the German Business as at 31 December 1997);
17. not change its accounting reference date;
18. not enter into any litigation or arbitration proceedings;
19. except in the usual course of its business, not compromise, settle,
release, discharge or compound litigation or arbitration proceedings or
a liability, claim, action, demand or dispute, or waive a right in
relation to litigation or arbitration proceedings;
20. conduct its business in all material respects in accordance with all
applicable legal and administrative requirements in any jurisdiction,
21. not cancel or fail to renew by the due date the insurance policies in
force at the date of this Agreement nor do or omit to do anything to
render such policies void or voidable.
22. reasonably co-operate with Glen Dimplex to:
22.1 ensure the efficient continuation of management of the
Companies, the French Business and the German Business after
Completion; and
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 45
22.2 prepare for the introduction of Glen Dimplex's normal working
procedures in readiness for Completion.
23. provide to Glen Dimplex and each Relevant Purchaser access to the
Companies and each Relevant Business and their personnel and such
information regarding the same as may reasonably be requested by Glen
Dimplex or any Relevant Purchaser from time to time.
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
32
<PAGE> 46
SCHEDULE 5
GRANT DOCUMENTATION
1. Agreement date 22 September 1980 between Industrial Development
Authority and Shop Vac Ireland.
2. Supplemental Agreement dated 23 September 1980 between Industrial
Development Authority and Shop Vac Ireland.
3 Supplemental Agreement dated 20 June 1983 between Industrial
Development Authority and Shop Vac Ireland.
4. Supplemental Agreement dated 10 December 1984 between Industrial
Development Authority and Shop Vac Ireland.
5. Supplemental Agreement dated 7 May 1986 between Industrial Development
Authority and Shop Vac Ireland.
6. Agreement dated 2 January 1991 between Shannon Free Airport Development
Company Limited and Goblin Ireland Limited.
7. Grant Agreement dated 4 November 1994 between Industrial Development
Authority, McCulloch Ireland Limited, Goblin Ireland Limited and Shop
Vac Corporation.
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
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<PAGE> 47
SCHEDULE 6
BANK DOCUMENTATION
1. Guarantee Letter from Shop Vac Corporation to NMB Heller N.V. on behalf
of FAM Nederland dated 20 August 1997
2. Guarantee Letter from Shop Vac Corporation to ING Bank on behalf of FAM
Nederland dated 20 August 1997
3. Letter of comfort from Shop Vac Corporation to Bank of Ireland on
behalf of Goblin Ireland Limited dated 9 May 1994
4. Agreement of Guarantee from Shop Vac Corporation to Midland bank on
behalf of Goblin Limited (UK) dated 14 February 1994
5. Guarantee from Shop Vac Corporation on behalf of Emil Bast
Wohnungsnuternehem dated 21 May 1993
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
34
<PAGE> 48
EXECUTED as a DEED by )
SHOP VAC CORPORATION )
acting by these )
signatures and DELIVERED )
\s\ Kenneth Benbassat
.....................
Director
\s\ David A. Grill
.....................
Director/Secretary
EXECUTED as a DEED by )
GLEN DIMPLEX )
acting by these )
signatures and DELIVERED )
\s\ L. Quin
....................
Director
\s\ Sean O'Driscoll
....................
Director/Secretary
I:\WPD\WPUNIT\LEEDS\C92320.AGR\24.4.98\JR\V6
35
<PAGE> 49 Exhibit 2.02
DATED 29th May 1998
(1) SHOP VAC CORPORATION
- and -
(2) MORPHY RICHARDS APPLIANCES LIMITED
AGREEMENT
for the sale and purchase of the
whole of the issued share capital
of Goblin Limited
Dibb
- -------
Lupton
- -------
Alsop
<PAGE> 50
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
<PAGE> 51
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
<PAGE> 52
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 2323 Reach Road
Williamsport Pennsylvania 17701-0307 USA ("the Vendor")
(2) MORPHY RICHARDS APPLIANCES LIMITED a Company incorporated in England
with number 1610139 and whose registered office is at PO Box 129
Mexborough South Yorkshire S64 8AJ ("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;
1
<PAGE> 53
"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 Lawrence Graham of 190 Strand,
London WC2R 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 Act 1978 apply in the same way as
they do to statutes;
1.2.3 reference to a statutory provision includes
reference to:
2
<PAGE> 54
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
3
<PAGE> 55
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.
4
<PAGE> 56
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;
5
<PAGE> 57
in the case of the Vendor to Shop Vac Corporation, fax 001 717
326 0422: 2323 Reach Road, Williamsport, Pennsylvania,
17701-0307, USA; Attention: D. Grill and
in the case of the Purchaser to Glen Dimplex, Fax 00 353 1 283
8371; 41 Ailesbury Road,Dublin 4, Attention: S O'Driscoll
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.
6
<PAGE> 58
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.
7
<PAGE> 59
SCHEDULE 1
The Company
<TABLE>
<CAPTION>
Name and registered Number and Date and place of
registered office or principal office incorporation Directors and Secretary Issued share capital
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Goblin Limited England J Miller 900 Ordinary(pound)1
New Yorkshire House M Miller 2,135,000 Ord USD1
Don Pedro Avenue 1,100 Pref(pound)1
Normanton
WF6 1TT
</TABLE>
8
<PAGE> 60
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.
9
<PAGE> 61
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 Miller, M Miller and
Earl Stogner 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;
10
<PAGE> 62
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\ Matthew Miller
behalf of SHOP VAC CORPORATION )
SIGNED by on )
behalf of MORPHY RICHARDS ) \s\ Sean O'Driscoll
APPLIANCES LIMITED )
I:\C49047.AGR (sa/jm)
11
<PAGE> 63 Exhibit 2.03
DATED 29th May 1998
(1) SHOP-VAC CORPORATION
- and -
(2) GLEN DIMPLEX
--------------------------------------
AGREEMENT
for the sale and purchase of the
whole of the issued share capital of
Goblin Ireland Limited
-------------------------------------
---------
Dibb
---------
Lupton
---------
Alsop
---------
<PAGE> 64
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.............................................4
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
<PAGE> 65
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-crystallisation
6 Release(s) of liabilities owed to the Vendor
7 Powers of Attorney in relation to the Shares
<PAGE> 66
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 2323 Reach Road,
Williamsport, Pennsylvania, 17701 0307 USA ("the Vendor")
(2) GLEN DIMPLEX a company incorporated in Ireland whose registered office
is at 41 Ailesbury Road, Dublin 4, Ireland ("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 Ireland Limited;
1
<PAGE> 67
"COMPLETION" means the perfon-nance of all the obligations of
the parties hereto set out in clause 4;
"COMPLETION BOARD MINUTES" means minutes of a meeting of the
board of directors of the Company in the agreed fon-n 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
Company;
"VENDORS GROUP" means the Vendor and its subsidiary
undertakings from time to time;
"VENDOR'S SOLICITORS" means Lawrence Graham of 190 Strand,
London WC2R 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 1963 to
1990 and the Taxes Consolidation Act 1997 (or either
of them) have the same meanings in this Agreement
(unless otherwise expressly defined in this
Agreement);
1.2.2 reference to a statutory provision includes reference
to:
1.2.2.1 any order, regulation, statutory instrument
or other subsidiary legislation at any time
made under it for the time being in force
(whenever made);
2
<PAGE> 68
1.2.2.2 any modification, amendment, consolidation,
reenactment or replacement of it or
provision of which it is a modification,
amendment, consolidation, re-enactment or
replacement;
1.2.3 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;
1.2.4 reference to any gender includes the other genders;
1.2.5 the index, headings and any descriptive notes are for
ease of reference only and shall not affect the
construction or interpretation of this Agreement;
1.2.6 this Agreement incorporates the Schedules to it;
1.2.7 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 as beneficial owner 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
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
<PAGE> 69
3. CONSIDERATION
The aggregate consideration payable by the Purchaser for the Shares
shall be US$6,300,000.
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.
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.
4
<PAGE> 70
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
to the Vendor shall be given in writing;
in the case of the Vendor to David Grill at the Vendor's
principal office and
in the case of the Purchaser to Glen Dimplex, Fax 00 353 1 283
8371, 41 Ailesbury Road, Dublin 4, Attention: S O'Driscoll
5
<PAGE> 71
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 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 Ireland
14.2 The parties irrevocably agree for the exclusive benefit of the
Purchaser that the courts of Ireland 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.
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 a
judgment in any Proceedings brought in the Irish courts shall
be conclusive and binding upon the Vendor and may be enforced
in the courts of any other jurisdiction.
6
<PAGE> 72
14.4 The Vendor expressly and specifically agrees and accepts the
terms of this clause and signs this Agreement in recognition
of such agreement 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.
7
<PAGE> 73
SCHEDULE 1
The Company
<TABLE>
<CAPTION>
Name and registered Number
and registered office or Date and place of Directors and Authorised share capital Issued share capital
principal office incorporation Secretary
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Goblin Ireland Limited 29 June 1979 Directors IR(pound)1,000,000 divided into 600,000 Ordinary Shares
Registered Number: 69738 Ireland Conor Brendan Stack 1,000,000 Ordinary Shares
Registered Office: Joe Clifford of IR(pound)1 each
90 South Mall, Matthew Miller
Cork Earl Stogner
Jonathan Miller
Secretary
Joe Clifford
</TABLE>
8
<PAGE> 74
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$6,300,000 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.
9
<PAGE> 75
SCHEDULE 2
PART 2
Items to be provided
1.1 duly executed transfers of the Shares by the registered holders thereof
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 Matthew Miller, Jonathan
Miller and Earl Stogner as directors of the Company;
1.4 the written resignation in the agreed fon-n 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 made up to the Completion Date;
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;
10
<PAGE> 76
1.11 duly executed deeds of release in the agreed form releasing the Company
from any liability whatsoever under any guarantees;
1.12 a letter from the Company's Bank 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 the documents of title to the property owned or 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 fon-n 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\ Matthew Miller
behalf of SHOP-VAC CORPORATION )
SIGNED BY on ) \s\ Sean O'Driscoll
behalf of GLEN DIMPLEX )
i:\C93461.AGR (pdb/gmvc/jm)
11
<PAGE> 77 Exhibit 2.04
29th May 1998
Purchase Agreement
between
EIO Morphy Richards GmbH
("Purchaser")
and
(Shop-Vac Vertriebs-GmbH, Werthe, Josef-Baumann-Str. 21, 44005 Bochum,
represented by its Geschaftsfuhrer Matthew Miller)
("Seller")
and
Shop-VacCorporation, a United States corporation with
principal office at 2323 Reach Road, Williamsport
Pennsylvania 17701 - 0307 USA
("Guarantor")
(Paragraph) 1
PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES
1. Purchaser, acquires all assets as recorded in the balance sheet at
Annex 1 and as further developed and recorded (e.g. sale and purchase
of assets) as per Closing Date in the ordinary course of business,
goodwill, the name and customer-relationships and any asset disclosed
to the Purchaser in writing.
UR\Purchagr.doc
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<PAGE> 78
FEDDERSEN LAULE SCHERZBERG & OHLE HANSEN EWERWAHN
2 / 5
2. Purchaser assumes and holds harmless Seller from all liabilities as
recorded in the balance sheet at Annex I and as further developed and
recorded (e.g. discharge of liabilities and new liabilities as per
Closing Date in the ordinary course of business together with those
liabilities listed in Annex II.
3. The equity acquired by Purchaser thus shall be the net asset value of
DM 1,492,000 as per 31st December, 1997 plus or minus the profit or
loss as developed and recorded in the normal course of business until
Closing Date.
4. In addition, Seller assigns herewith its non-recorded VAT refund claim
for the fiscal year 1994 to Purchaser and commits itself immediately to
sign the official VAT refund form at Purchaser's request.
5. Further, Purchaser assumes the non-recorded liabilities under the
existing property lease of Seller. Seller confirms that the lease is
terminated as per 31st August, 1998.
(Paragraph) 2
PURCHASE PRICE
The Purchase Price shall be: US $ 230,000.
(Paragraph) 3
CLOSING DATE
Closing Date will be the date hereof.
(Paragraph) 4
LIABILITIES
1. Seller will use reasonable endeavours to ensure that no creditor of the
business (including trade agents) will raise claims against Purchaser
for any liability which has its cause prior to Closing Date and which
is not recorded in the books of the company; this also applies to tax
liabilities.
2. Seller and Guarantor will indemnity Purchaser for any liability
suffered by Purchase., which has its cause in any activity related with
the business prior to Closing Date and which has not been recorded in
the books of the
UR\Purchagr.doc
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<PAGE> 79
FEDDERSEN LAULE SCHERZBERG & OHLE HANSEN EWERWAHN
3 / 5
company except for the non-recorded liabilities referred to in
paragraph 1 - 5 above or described in Annex II.
(Paragraph) 5
TRANSFER OF TITLE
The parties agree herewith on the transfer of title/rights of all
assets on Closing Date.
(Paragraph) 6
WARRANTIES
1. All assets will be transferred in their actual condition,
2. The transferred assets are free from any encumbrances or rights of
third parties. Insofar as the sold assets are encumbered by third Party
rights on Closing Date (e.g. security title, mortgage liability,
retention of title, at al.), Seller and Guarantor shall undertake the
necessary steps to have the encumbrances on such assets released.
(Paragraph) 7
CONTRACTS
1. Purchaser will take over the contracts of the business. Purchaser
assumes all rights and obligations under such contracts arising after
Closing Date (in addition to those liabilities set out in Annex 2).
2. The contracting parties will inform the parties to such contracts and
will jointly request the consent to the transfer of the contracts to
Purchaser.
3. In the event that a consent to such a transfer will not be granted or
will only be granted at disadvantageous conditions, the contracting
parties agree to proceed as follows:
(1) The contract will be continued vis-a-vis the third party by Seller.
(2) With respect to the relationship between Purchaser and Seller, the
risk and the benefit of the contract is for the account of
Purchaser.
UR\Purchagr.doc
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<PAGE> 80
FEDDERSEN LAULE SCHERZBERG & OHLE HANSEN EWERWAHN
4 / 5
(3) The parties will put each other in the same position that they
would hold if the contract had been transferred to Purchaser,
4. Insofar as Seller has provided performance securities for the lease (e.
g. "Mietburgschaft"), Purchaser shall indemnity Seller from such
liabilities out of such securities which are based on a cause
established after Closing Date and shall following the Closing Date
procure the release of Seller from such performance securities.
(Paragraph) 8
LITIGATION
Seller currently pursues two lawsuits in which Seller claims approximately DM
1.3 million from a Russian customer and approximately DM 420;000 from a former
German employee. Those lawsuits remain with Seller provided that if any amount
in respect of such law suits is recorded as an asset (net of applicable
reserves) in the balance sheet at Annex 1 and Seller recovers any amount in
respect of the same, Seller shall pay the net amount so recorded to Purchaser.
(Paragraph) 9
EMPLOYMENT CONTRACTS
1. Purchaser shall take over the four employment contracts mentioned in
Annex 3 subject to the conditions mentioned in Annex 3.
2. Seller shall Indemnify Purchaser if Purchaser has to assume the
employment contracts subject to conditions less advantageous than the
conditions of the employment contracts mentioned in Annex 3.
(Paragraph) 10
GUARANTEE
Guarantor hereby guarantees the performance of all obligations of Seller under
this Agreement.
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<PAGE> 81
FEDDERSEN LAULE SCHERZBERG & OHLE HANSEN EWERWAHN
5 / 5
(Paragraph) 11
GENERAL PROVISIONS
1. This contract shall be governed by German law.
2. If any provision under this contract is invalid, the remaining
provisions shall not be affected and the parties shall agree on a
provision which is as close as legally possible to the Invalid
provision.
\s\ Sean O'Driscoll
- ----------------------------------
EIO Morphy Richards GmbH
\s\ Matthew Miller
- ----------------------------------
Shop-Vac Vertriebs-GmbH
\s\ Matthew Miller
- ----------------------------------
Shop-Vac Corporation
UR\Purchagr.doc
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<PAGE> 82
Annex 3
EMPLOYMENT CONTRACTS
1. Michael Parzer: No written employment contract available; according to
payroll accounting, Mr. Parzor has a monthly salary of DM 4,000.
2. Helmut Machhoiz, Salary: 13 times DM 4,800 plus DM 500 guaranteed bonus
3. Michael Daub. No written employment contract available. Salary: DM
5,500 according to payroll accounting.
4. Michaela Wenk: No written employment contract available. Salary: DM
4,500 according to payroll accounting.
UR\Purchagr.doc
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<PAGE> 83 Exhibit 2.05
SHARE PURCHASE AGREEMENT
THE UNDERSIGNED,
1. SHOP - VAC CORPORATION, whose registered address is at 2323 Reach Road,
Williamsport, in the state of Pennsylvania, United States of America,
duly represented by Matthew Miller in his capacity as director
(hereinafter referred to as: the "Vendor"); and
2. CARMEN NEDERLAND B.V., a closed company with limited liability,
registered at the Hilversum Trade Registry under number 32029134 whose
registered address is at (1382 JX) Plevolaan 21 in weesp, duly
represented by Cornelis Antonie Strokappe and Sean O' Driscoll in their
respective capacity as director (hereinafter referred to as: the
"Purchaser").
WHEREAS:
a. The Vendor is the owner of 100% of the issued and paid up share capital,
of FAM Nederland BV, registered at the Oost-Brabant Trade Registry under
number 16084292 whose registered address is at Helft-heuvelpassage 14-05
(5224 AP) in s-Hertogenbosch, The Netherlands (hereinafter referred to
as the "Company") consisting of 1,300 shares with nominal value of NLG
1,000 each hereinafter referred to as the "Shares");
b. The Shares represent the whole of the issued share capital of the
Company and have been fully paid-up;
<PAGE> 84
2
c. The Vendor wishes to sell the Shares to the Purchaser as the Purchaser
wishes to purchase the Shares from the Vendor;
NOW HEREBY have agreed as follows: -
Article 1 - Sale and Purchase of the Shares
1.1 Subject to the terms of this Agreement, the Vendor hereby sells to the
Purchaser as the Purchaser hereby purchases from the Vendor, the
Shares.
1.2 The Shares shall be transferred free from any charges and encumbrances
together with all rights now or hereinafter attached thereto.
Article 2 - Purchase Price
The Purchase Price for the Shares shall be USD 1.
Article 3 - Transfer of the Shares
Title of ownership to the Shares shall pass from the Vendor to the Purchaser by
way of a notarial Deed of Transfer of Shares, to be passed by Civil Law Notary
Hans Mannheim or his replacement, which Deed shall he substantially in the form
of the draft Deed attached as Appendix I to this Agreement. The Parties agree to
enter into this Deed at Completion. The Purchaser shall procure that the Company
shall acknowledge the transfer of the Shares in writing.
<PAGE> 85
3
Article 4 - Completion requirements
At completion and prior to the passing of the Notarial Deed (i) the full
Purchase Price shall have to be received by the Vendor (ii) all outstanding
amounts, if any, due to the Company from the Vendor and the Vendors Group shall
be paid and received by the Company; and (iii) the Vendor will produce and
deliver to the Purchaser or the Purchaser's Dutch legal advisors, the following:
(a) letters of resignation substantially in the form of Appendix II to this
Agreement for all current Managing Directors ("statutair directeuren")
of the Company, also containing a written acknowledgment from each of
them that they have received all remuneration to which they were
entitled and that they have no outstanding claims against the Company;
(b) the latest full text of the Articles of Association ("Statuten") of the
Company;
(c) the original Shareholders Register (duly written up) and any existing
minute books and other statutory books of the Company;
(d) the written resignation of KPMG Accountants N.V. as auditors of the
Company.
(e) a written statement from the Vendor that the Company does not owe it or
any other Company in the Vendors Group any amount of money.
<PAGE> 86
4
Article 5 - Completion
5.1 Completion shall take place on the Date of this Agreement or on such
other date as the parties may agree, at the offices of Civil Law Notary
Hans Mannheim or his replacement.
5.2 The Vendor shall give such assistance to the Purchaser as the Purchaser
shall reasonably require to enable the Shares to be effectively
transferred to and registered in the name of the Purchaser.
Article 6 - Representations and Warranties
6.1 The Vendor represents and warrants to the Purchaser that, at the date of
the signing of this Agreement and at Completion:
(a) The Shares represent the entire issued share capital in the
Company and have all been paid up in full;
(b) the Vendor is the owner of the Shares which ownership is
unconditional and not liable to reduction or repurchase or to
any cancellation whatsoever;
(c) the Shares have not been encumbered by any usufruct, lien,
attachment or any other rights, personal or in rem;
<PAGE> 87
5
(d) the Company has granted no options and has not entered into any
obligation whatsoever regarding the issuance of shares in the
capital of the Company which have not yet been issued;
(e) no resolutions to issue shares have been adopted and no
commitments to that effect have made;
(f) no commitments have been made regarding any payments on shares
in the form of a dividend, bonus shares, rights or in any other
form whatsoever;
(g) no resolutions have been adopted by the shareholders which have
not yet been implemented.
Article 7 - Applicable law and jurisdiction
7.1 This Agreement shall be governed by the laws of The Netherlands.
7.2 Any dispute which cannot be settled amicably shall be settled in the
first instance before the District Court of Amsterdam
("Arrondissementsrechtbank te Amsterdam").
<PAGE> 88
6
signed in twofold on 29 may 1998 at London, England.
SHOP-VAC CORPORATION CARMEN NEDERLAND B.V.
\s\ Matthew Miller \s\ Sean O'Driscoll
\s\ David A. Grill \s\ C.A. Strokappe
<PAGE> 89 Exhibit 2.06
29/05/1998
ACTE DE CESSION DE FONDS DE COMMERCE
ENTRE LES SOUSSIGNEES:
La Societe SHOP VAC CORPORATION, societe de droit americain de 1'Etat
du New Jersey, dont le siege social eat 2323 Reach Road, Williamsport,
Pennsylvania 17701-0307 (USA), representee par M.
Matthew Miller,
ci-apres designee "Le Vendeur",
D'UNE PART,
Et M. Sean O'Driscoll, de nationalite irlandaise, ne le 4 septembre
1957 a Cork, Irlande, demeurant Cedar, Granville Road, Blackrock, Co Dublin,
Irlande, agissant pour le compte de la Societe en formation GOBLIN SARL,
Entreprise Unipersonnelle a responsabilite limitee au capital de 50.000 F, dont
le siege social sera ZI de 1'Eglantier, 20, Rue des Cerisiers, 91028 Evry Cedex
2851 et qui sera immatriculee au Registre du Commerce et des Societes d'Evry,
ci-apres designee "l'Acquereur",
D-AUTRE PART,
IL A ETE CONVENU CE QUI SUIT:
Par les presentes, la Societe SHOP VAC CORPORATION cede a la Societe
GOBLIN SARL qui accepte, aux clauses et conditions ci- apres stipulees, le fonds
de commerce ci-apres designe.
Article 1. Designation
Le fonds de commerce de vente, de maintenance et de distribution
d'aspirateurs, de nettoyeuses da sol a sec et par voie humide, de nettoyeuses a
vapeur et autres materiels similaires, sis et exploite par le Vendeur ZI de
l'Eglantier, 20, Rue des Cerisiers, 91000 Evry,France et pour lequel le Vendeur
est immatricule au Registre du Commmerce et des Societes d'Evry sous le no B 329
845408 (84 B 00 894), savoir, et a l'exception du nom commercial et de la marque
"SHOP VAC" qui demeurent la propriete du Vendeur:
1.1. La clientele et l'achalandage;
1.2. L'ensemble des installations techniques, materiels et outillage
decrits et estimes dans 1'etat ci-annexe (Annexe no 1), etant precise que leur
valeur est celle inscrite au bilan intermediaire du Vendeur arrete a
<PAGE> 90
2.
la date du 31 mars 1998 dont une copie est ci-annexee (Annexe no 2), et qu'il
n'est pas tenu compte des variations en plus ou moins intervenues dans leur
valeur a raison de l'exploitation normale et courante du fonds cede entre le 31
mars 1998 et la date de signature des presentes.
1.3. Le benefice et les charges futures, a compter de l'entrea en
jouissance du fonds par'l'Acquereur, de l'ensemble des droits et obligations
attaches a tous les traites, marches, commandes ou autres contrats et
conventions de toute nature afferents a l'exploitation du fonds de commerce
cede.
Au cas ou l'acceptation des co-contractants serait necessaire ou
1egalement requise, le Vendeur et l'Acquereur s'obligent a faire conjointement
leurs meilleurs efforts pour obtenir cette acceptation, le cout des formalites
1egales eventuelles etant a la charge de l'Acquereur qui s'y oblige, et
l'Acquereur declarant renoncer a tout recours contre le Vendeur au cas ou cette
acceptation ne serait pas obtenue.
1.4. Le benefice et les charges futures, a compter de l'entreo en
jouissance du fonds par l'Acquereur et pour le temps restant a courir, du
Contrat de Credit-Bail Immobilier (et de la promesse de vente y attachee) signe
le 15 octobre 1990 entre la Societe SHOP VAC CORPORATION et la Societe SOGEBAIL
("Le Bailleur") dont le siege social est 29, Boulevard Haussman, 75008 Paris,
ledit contrat portant sur un immeuble a usage d'ateliers, bureaux et locaux
sociaux sis a Lisses (Essone) et ayant fait l'objet d'un acte authentique recu
par Me. Nicolas THIBIERGE, Notaire associe, demeurant 9, Rue d'Astorg, 75008
Paris, et enregistre le 17 octobre 1990 a la RP de Paris Madeleine, Bordereau no
1317, Case 9.
A cet egard;
- le Vendeur declare et garantit qu'il a jusqu'a ce jour et depuis
l'origine rempli toutes les obligations mises a la charge du preneur par le
Contrat de Credit Bail Immobilier dont il est le 1egitime titulaire et qu'a la
date des presentes, il n'existe aucune circonstance actuelle ou eventuelle
susceptible d'en entrainer la resiliation a la demande du Bailleur, sachant
toutefois que la cession dudit Contrat par le Vendeur a l'Acquereur n'a pas ete
approuvee par le Bailleur;
- l'Acquereur declare avoir connaissance de l'Article 12 du Contrat de
Credit-Bail Immobilier qui stipule (1) que la cession des droits afferents au
Credit-Bail est soumise au consentement expres et par ecrit du Bailleur (2)
qu'en cas de cession, le cedant sera solidairement tenu avec le cessionnaire de
toutes les
<PAGE> 91
3.
les obligations stipulees au Contrat, et notamment du paiement des loyers et (3)
que la cession sera'constatee par acte authentique;
- le Vendeur declare avoir, des avant ce jour, informe le Bailleur de
la presente cession de fonds de commerce et de l'identite de l'Acquereur et
avoir obtenu du Bailleur l'autorisation pour l'Acquereur d'occuper l'immeuble a
compter de la date d'entree en jouissance du fonds par l'Acquereur et jusqu' a
la cession du Contrat de Credit Bail Immobilier a l'Acquereur, notamment pour y
etablir son siege social, etant precise que le Bailleur ne pourra prendre de
decision quant a ladite cession avant d'avoir obtenu des informations detaillees
sur le Groupe GLEN DIMPLEX.
- le Vendeur et l'Acquereur s'obligent a faire leurs meilleurs efforts
pour que l'acte authentique ci-dessus vise puisse etre etabli dans les meilleurs
delais, les frais et droits dudit acte etant, de convention expresse, a la
charge de l'Acquereur et l'Acquereur s'oblige, lors de la signature dudit acte
de cession a fournir au Vendeur une contre-garantie pour le paiement des loyers
de telle sorte quo le Vendeur ne puisse jamais etre inquiete ni recherche a ce
sujet;
- le Vendeur declare que le montant des loyers restant dus au Bailleur
jusqu'au terme du bail s'eleve a la somme hors taxes de 7.579.836 F, soit un
montant superieur a la valeur actuelle de realisation de l'immeuble.
Article 2. Obligations de l'Acquereur
L'Acquereur sera tenu, a compter de la date d'entree en
jouissance
- de prendre en charge toutes lea dettes enumerees a
l'Annexe 3;
- de prendre le fonds vendu tel que decrit ci-dessus dans 1'etat ou le
tout se trouve actuellement, sans pouvoir reclamer aucune indemnite ni
diminution du prix ci-apres fixe, pour cause de vetuste ou de degradation des
objets, materials et mobiliers inclus dans la presente cession;
- d'acquitter a partir de son entree en jouissance, les impots,
contributions et autres charges de toute nature auxquels le fonds presentement
vendu pourra etre assujetti, le tout de maniere a ce que le Vendeur ne puisse
jamais etre inquiete ni recherche a ce sujet et
- de satisfaire a toutes les charges de ville et de police, dont
pareille exploitation est tenue, de telle sorte que le Vendeur ne soit jamais
inquiete ni, recherche a ce sujet.
<PAGE> 92
4.
Article 3. Origine de Propriete - Garanties
du Vendeur
Le Vendeur declare avoir cred le fonds cede et l'avoir exploite depuis
le ler decembre 1983. Le Vendeur garantit qu'il en est le 1egitime proprietaire,
ainsi que des marchandises visees a l'article 13 ci-apres, qu'il a le droit de
disposer librement dudit fonds et desdites marchandises et de les ceder a
l'Acquereur.
Article 4. Inscriptions et Privileges
Le Vendeur declare que le fonds de commerce objet de la presente
cession n'est greve d'aucune inscription de privilege ou de nantissement.
Au cas ou il s'en revelerait, le Vendeur s'engage a en rapporter
quittance ou main-levee dans les plus brefs delais.
Seule sont inscrits sur 1'etat relatif aux inscriptions des privileges
et publications delivre par le Tribunal de Commerce d'Evry le 14 mai 1998, les
contrats de location no 00217 en date du 26 avril 1995 (creancier SNC
LOCA-Autocommutateurs Barphone) no 02296 en date du 28 novembre 1996 (Creancier
FRANFINANCE LOCATION - SAGEM Quadrige) et no 00791 en date du 14 avril 1997
(Creancier CREDIT UNIVERSEL - Copieur Minolta).
Article 5. Declarations
Sur 1'Etat-Civil du Vendeur
Le Vendeur declare:
- qu'il n'a jamais ete en etat de liquidation judiciaire,
faillite, redressement judiciaire ou cessation de paiements;
- qu'il n'est pas susceptible d'etre l'objet de poursuites pouvant
entrainer la confiscation totale ou partielle de ses biens.
Sur 1'Etat-Civil de l'Acquereur
L'Acquereur declare:
- qu'il n'a encouru aucune des condamnations ou decheances prevues par
l'article ler de la loi du 30 aout 1947 relative a l'assainissement des
professions commerciales;
- qu'il n'a jamais ete en etat de redressement ou liquidation
judiciaire ou cessation de paiements.
<PAGE> 93
5.
Article 6. Propriete et Jouissance
L'Acquereur prendra possession du fonds cede et en aura la propriete et
la jouissance a compter de ce jour.
Article 7. Contrats de Travail
Conformrment aux dispositions des articles L. 122.12 et L.122.12.1 du
Code du Travail, les contrats de travail en cours du personnel du fonds de
commerce dont la liste nominative (indiquant pour chaque personne concernee la
fonction occupee, l'anciennete, la remuneration annuelle et la duree de preavis)
est ci-annexee (Annexe no 4), seront transferes a l'Acquereur a compter du
transfert de la propriete du fonds, date a partir de laquelle l'Acquereur sera
tenu A 1'egard dudit personnel des obligations incombant au Vendeur. Le Vendeur
declare que les conges payes afferents a la periode du ler juin 1997 au 31 mai
1998 ont ete soldes le 28 mai 1998.
Le Vendeur declare egalement qu'il n'a conclu aucune convention de
portee generale particuliere derogeant aux dispositions de la Convention
Collective applicable (Convention Collective Nationale des Commerces de Gros)
qui nlaurait pas ete portee par ecrit, le 25 avril ou avant le 25 avril 1998 A
la connaissance de l'Acquereur, et que les regimes de retraite at de prevoyance
auxquels sont affilies les salaries dont les contrats de travail sont transferea
en vertu des presentes sont ceux communiques a l'Acqufireur avant le 25 avril
1998.
Il est par ailleurs expressement convenu que tout passif ne des
contrats de travail qui se revelerait ulteriourement, mais dont l'origine serait
anterioure a la date des presentes sera a la charge du Vendeur.
Article 8. Comptabilite
L'Acquereur declare avoir, prealablement a la signature des presentes,
pris connaissance de tous les documents comptables afferents au fonds cede,
documents quo le Vendeur s'oblige a tenir a la disposition de l'Acquereur
pendant trois annees a compter de la date d'entree en jouissance.
Article 9. Declarations relatives au chiffre
d'affaires et aux benefices
Le Vendeur declare
- que le montant du chiffre d'affaires des trois dernibres annees et de
1'exercice en cours s'est eleve a:
o exercice du ler janvier au
31 decembre 1995 .......... 178.674.277 F
<PAGE> 94
6.
o exercice du ler janvier au
31 decembre 1996.......... 154.794.767 F
o exercice du ler janvier au
31 decembre 1997.......... 44.791.952 F
o partie de l'exercice
ecoulee du ler janvier 1998
a la date des presentes
(Estimation).............. 22.000.000 F
- que pour les memes periodes, les benefices ou (pertes)
nets realises ont ete les suivants:
o exercice du ler janvier au
31 decembre 1995.......... 4.905 F
o exercice du ler janvier au
31 decembre 1996.......... ( 81.481.399)F
o exercice du ler janvier au
31 decembre 1997.......... (255.102)F
o partie de l'exercice
ecoulee du ler janvier
1998 a la date des
presentes (Estimation)..... 300.000 F
Article 10. Prix
La presente vente de fonds de commerce est consentie et acceptee
moyennant le prix ci-apres:
E1ements incorporels..... F. 693.745
E1ements corporals....... F. 147-554
Marchandises............. F. 4.978.701
---------------
Total.................... F. 5.820.000
Article 11. Paiement du Prix - Dispense de
Sequestre
11.1. Le prix de vente du fonds de commerce et des marchandises stipule
ci-dessus a ete paye ce jour par l'Acquereur au Vendeur qui le reconnait et en
donne quittance a l'Acquereur.
11.2. D'un commun accord, les parties sont convenues de ne pas proceder
au sequestre du prix de vente du fonds at des marchandises.
Dans ces conditions, les oppositions eventuelles de creanciers du
Vendeur presentees dans le delai legal feront l'objet des dispositions
suivantes:
<PAGE> 95
7.
11.2.1. Les sommes correspondantes seront reglees par l'Acquerour au(x)
creancier(s) concerne(s), pour autant qu'elle soient inscrites au passif du
bilan intermediaire du Vendeur etabli a la date du 31 mars 1998, ou qu'elles
aient pour origine 1'exploitation couranto et normale du fonds de commerce cede
entre le 31 mars 1998 et, la date de signature des presentes.
11.3. Les dettes autres que celles inscrites audit bilan et corrigees
de leurs variations intervenues depuis le 31 mars 19988 a raison de
l'exploitation couranto et normale du fonds seront, quels qu'en soient le
montant, la nature et l'origine et qu'elles fassent ou non l'objet d'une
opposition de la part de quelque creancier que ce soit, payees par le Vendeur
au(x) creancier(s) concerne(s), et au cas ou pour quelque raison que ce soit
l'Acquereur serait contraint de les payer, le Vendeur s'oblige a les rembourser
a l'Acquereur a premibre demande de celui-ci.
Article 12. Dettes Fiscales
Les dettes fiscales et parafiscales a la charge du Vendeur consecutives
a la vente du fonds de commerce, telles que, a titre enonciatif et non
limitatif, l'imposition immediate des benefices tires de l'exploitation du fonds
et les plus-values de cession seront payees par le Vendeur qui sloblige a
effectuer en temps utile toutes declarations et paiements necessaires aupres des
administrations competentes.
Article 13. Marchandises
Le fonds de commerce oblet de la presente cession est garni d'un stock
de marchandises decrites a l'inventaire physique annexe aux presentes (Annexe no
5).
Le Vendeur cede a l'Acquereur la totalite desdites marchandises pour le
prix hors taxes de 4.978.701 F majore de la TVA au taux de 20,60%, soit un prix
TTC de 6.004.313,41 F, etant precise que le prix hors taxes ci-dessus stipule
correspond a la valeur desdites marchandises inscrite au bilan intermediaire du
Vendour arrete a la date du 31 mars 1998 et qu'il n'est pas tenu compte des
variations en plus ou en moins de la valeur dudit stock intervenues a raison de
l'exploitation normale et courante du fonds cede entre le 31 mars 1998 et la
date de signature des presentes.
<PAGE> 96
8.
Article 14. Formalites
Chacune des parties accomplira les formalites prescrites par la loi
aupres du Registre du Commerce et des Societes dont depend le fonds cede.
Article 15. Election de domicile
Pour l'execution des presentes et de leurs uites, les parties font
election de domicile a l'adresse du fonds cede, telle qu'indiquee en tete des
presentes.
Article 16. Affirmation de Sincerite
Les parties soussignees affirment expressement, sous les peines
edictees par l'article 1837 du Code General des Impots que le present acte
exprime l'integralite du prix convenu.
Article 17. Attribution de Juridiction et Loi
App1icable
Pour le cas de contestations pouvant s'elever au sujet de la presente
cession, attribution de juridiction est faite au Tribunal de Commerce d'Evry.
La loi applicable sera la loi francaise.
Article 18. Dispositions fiscales
En application de l'article 719 du Code General des Impots, la presente
cession est passible des droits d'enregistrement, assis sur le prix vise a
l'article 10 des elements corporels et incorporels du fonds.
En application de l'Instruction Administrative no 3 A-6-90 du 22
fevrier 1990, les parties revendiquent la disense de taxation a la TVA de la
cession des biens mobiliers.
A cette fin l'Acquereur s'engage a soumettre a la TVA les cessions
ulterieures des biens et a proceder le cas echeant aux regularisations prevues
aux articles 210 et 215 de l'Annexe II au CGI qui auraient ete exigibles si le
cedant avait continue a utiliser le bien.
<PAGE> 97
9.
Article 19. Frais
Les frais et droits des presentes ainsi que ceux qui en seront la
consequence sont a la charge de l'Acquereur qui s'y oblige.
Exception faite de tous droits d'enregistrement, chacune des parties
assumera la charge et le paiement des honoraires de ses Avocats, Comptables et
autres Conseils.
Fait A
Le (29 March) 1 9 9 8
En six exemplaires originaux
\s\ Matthew Miller \s\ Sean O'Driscoll
- --------------------- ----------------------
Poit le VENDEUR Pour l'ACQUEREUR
Par__________________ Par___________________
