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EXHIBIT 10.58
Private & Confidential
DATED 2000
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GZA GEOENVIRONMENTAL, INC. (1)
▇▇▇▇ BRO GROUP LIMITED (2)
AND
▇▇▇▇ BRO AQUATERRA LIMITED (3)
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AGREEMENT
FOR THE SALE AND PURCHASE OF THE
5,000 "B" ORDINARY SHARES OF (POUND)1 EACH IN
▇▇▇▇ BRO AQUATERRA LIMITED
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CONTENTS
CLAUSE HEADING PAGE
1 Definitions and interpretation....................................1
2 Sale of the Sale Shares and the Vendor's title....................3
3 Indemnity.........................................................4
4 Mutual Release....................................................4
5 Consideration for the sale of the Sale Shares.....................5
6 Completion........................................................5
7 Post-Completion matters...........................................5
8 Payments..........................................................6
9 General...........................................................6
10 Applicable law and submission to jurisdiction.....................8
SCHEDULE
1 The Company.......................................................9
2 Completion matters...............................................10
AGREED FORM DOCUMENTS
Officers' resignations (schedule 2 paragraph 1.5)
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THIS AGREEMENT is dated 26TH APRIL 2000 and is made BETWEEN:
(1) GZA GEOENVIRONMENTAL, INC., a company incorporated under the laws of the
State of Massachusetts whose principal place of business is at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("THE VENDOR");
(2) ▇▇▇▇ BRO GROUP LIMITED, a company incorporated in England (No. 2237772)
whose registered office is at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
("THE PURCHASER"); and
(3) ▇▇▇▇ BRO AQUATERRA LIMITED, a company incorporated in England (No.
2621323), further details of which are set out in schedule 1 ("THE
COMPANY"),
(together "THE PARTIES" and each a "PARTY").
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS USED IN THIS AGREEMENT
In this Agreement, unless the context otherwise requires:
"CA 1985" means the Companies ▇▇▇ ▇▇▇▇;
"COMPLETION" means completion of the sale and purchase of the Sale Shares
by the performance by the Parties of their respective obligations under
clause 4 and schedule 2;
"COMPLETION DATE" means the date of this Agreement;
"HOLDING COMPANY" means a holding company (as defined in sections 736 and
736A CA 1985) or a parent undertaking (as defined in section 258 CA 1985));
"PURCHASE PRICE" has the meaning given in clause 5;
"PURCHASER'S SOLICITORS" means ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇;
"SALE SHARES" means the 5,000 "B" Ordinary Shares of (pound)1 each in the
Company held by the Vendor;
"SECURITY INTEREST" means any claim, mortgage, lien, pledge, charge,
encumbrance, equity, hypothecation, right of pre-emption or other security
interest or any other restriction or right exercisable by, or in favour of,
any third party (or an agreement or commitment to create any of them);
"SHARE TRANSFERS" has the meaning given in paragraph 1.2 of schedule 2; and
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"SUBSIDIARY" means a subsidiary (as defined by sections 736 and 736A CA
1985) or a subsidiary undertaking (as defined by section 258 CA 1985).
1.2 TERMS DEFINED ELSEWHERE IN THIS AGREEMENT
In addition to the terms defined in clause 1.1, certain other terms are
defined elsewhere in this Agreement (denoted by capitalised words in quotes
and bold type). Each such term shall have the meaning stated for the
purpose of the provision in which it is defined and, if used elsewhere in
this Agreement, where so used, unless the context otherwise requires.
1.3 INTERPRETATION OF WORDS AND EXPRESSIONS USED IN THIS AGREEMENT
In this Agreement, unless the context otherwise requires:
(a) a document expressed to be "IN THE AGREED FORM" means a document in a
form which has been agreed by the Parties at or before the execution
of this Agreement and which has, for the purposes of identification,
been signed or initialled by them or on their behalf;
(b) references to a clause or schedule are to a clause of, or a schedule
to, this Agreement respectively; references to this Agreement include
its schedules and references in a schedule to a paragraph are to a
paragraph of that schedule;
(c) references to this Agreement or any other document or to any specified
provision of this Agreement or any other document are to this
Agreement, that document or that provision as in force for the time
being and as amended from time to time in accordance with the terms of
this Agreement or that document, as the case may be; and
(d) references to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, Court, official or
any legal concept or thing shall, in respect of any jurisdiction other
than England and Wales, be deemed to include what most nearly
approximates in that jurisdiction to the English legal term.
1.4 CONTENTS TABLE AND HEADINGS
In this Agreement, the contents table and the descriptive headings to, and
within, clauses, schedules and paragraphs are inserted for convenience
only, have no legal effect and shall be ignored in the interpretation and
construction of this Agreement.
2 SALE OF THE SALE SHARES AND THE VENDOR'S TITLE
2.1 SALE OF THE SALE SHARES
The Vendor shall sell to the Purchaser and the Purchaser (relying, as the
Vendor hereby acknowledges, on the representations, warranties, covenants,
undertakings
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and indemnities of the Vendor referred to in this Agreement) shall purchase
from the Vendor the Sale Shares. The Vendor makes no representation and
provides no warranty, covenant or indemnity other than those set out in
this Agreement.
2.2 THE VENDOR'S TITLE TO THE SALE SHARES
The Vendor shall sell and transfer to the Purchaser the Sale Shares with
full title guarantee and free from any Security Interest.
2.3 TITLE TO SALE SHARES TO PASS ON COMPLETION
Title to, beneficial ownership of, and any risk attaching to, the Sale
Shares shall pass on Completion and the Sale Shares shall be sold and
purchased together with all rights and benefits attached or accruing to
them at, or at any time on or after, Completion (including the right to
receive all dividends, distributions or any return of capital declared,
paid or made by the Company in respect of any such shares on or after
Completion).
2.4 WAIVER OF PRE-EMPTION RIGHTS BY THE VENDOR AND PURCHASER
Each of the Purchaser and the Vendor hereby waives any rights of
pre-emption or first refusal or similar rights conferred on it by the
articles of association of the Company or otherwise over any of the Sale
Shares.
2.5 CAPACITY OF THE VENDOR
The Vendor warrants, undertakes and represents to the Purchaser that:
(a) the Vendor has the requisite power and authority under its
constitutional documents and otherwise to execute, deliver and perform
its obligations under this Agreement and any other document to be
executed by it;
(b) the execution and delivery of, and the performance of the obligations
of the Vendor under, this Agreement have been duly authorised by all
necessary corporate action on its part whether under its
constitutional documents or otherwise; and
(c) this Agreement constitutes legal, valid and binding obligations of the
Vendor enforceable in accordance with its terms.
2.6 SHARE CERTIFICATE
(a) The Vendor confirms that, so far as it is aware, no certificate of
title to the Sale Shares has been issued to it.
(b) The Vendor further confirms that neither the Sale Shares nor any
certificate of title relating to them has been transferred, charged,
lent, deposited or
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dealt with in any manner affecting the title to them and the Vendor is
the person entitled to be on the register in respect of the Sale
Shares.
(c) The Vendor undertakes to indemnify and keep the Company fully and
effectively indemnified from and against all actions, proceedings,
claims, damages, costs, expenses and demands which may be brought or
made against the Company or suffered or incurred by the Company or for
which the Company may become liable by reason of the Vendor having
undertaken any of the matters referred to in clause 2.6(b).
3 INDEMNITY
The Purchaser will defend, indemnify and hold harmless the Vendor against
any action, sums, demand, damages, loss or liability arising out of:
(a) any professional services rendered by the Company;
(b) the employment by the Company of any person;
(c) taxes payable by the Company, and
(d) any other obligation or liability arising out of the operation of the
Company's business, whether or after the Completion Date,
in each case arising out of the ownership by GZA of the sale shares and
excluding any liability arising as a consequence of trading between the
Vendor and the Company.
4 MUTUAL RELEASE
Except as otherwise expressly set forth herein and except for any liability
arising as a consequence of trading between the parties, each Party hereby
releases the other Parties and the officers, directors, employees, agents
and affiliates of such other Parties of and from all actions, suits,
damages, losses, liabilities or claims of any character that a releasing
Party has or may have had against any of the released Parties at any time
to and including the Completion Date.
5 CONSIDERATION FOR THE SALE OF THE SALE SHARES
The consideration for the sale of the Sale Shares shall be the payment on
Completion by the Purchaser to the Vendor of (pound)210,000 ("THE PURCHASE
PRICE"), plus interest at the rate of 8.5 per cent per annum applied to all
outstanding amounts not paid at Completion until such amounts are paid in
full, in cash in accordance with the provisions of clause 8.
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6 COMPLETION
Completion shall take place at the offices of the Purchaser's Solicitors or
at such other place as the Parties may agree on the Completion Date when
the Parties shall comply with all of their respective obligations as set
out in schedule 2. The Purchaser shall not be obliged to complete the
purchase of any of the Sale Shares unless the purchase of all the Sale
Shares is completed simultaneously.
7 POST-COMPLETION MATTERS
7.1 APPOINTMENT OF THE PURCHASER AS ATTORNEY FOR THE VENDOR
The Vendor hereby irrevocably and unconditionally appoints the Purchaser
and any director of the Purchaser for the time being acting severally as
its lawful attorney (and to the complete exclusion of any rights that it
may have in such regard) for the purpose of exercising any and all voting
and other rights and receiving any and all benefits and entitlements which
may now or at any time after the date of this Agreement attach to or arise
in respect of any of the Sale Shares and receiving notices of and attending
and voting at all meetings of the members of the Company (or any class
thereof) and generally executing or approving such deeds or documents and
doing any such acts or things in relation to any of the Sale Shares as the
attorney may think fit, in each case from Completion to the day on which
the Purchaser is entered in the register of members as the holder of the
Sale Shares. For such purpose, the Vendor hereby authorises and instructs
the Company to send all notices in respect of the Sale Shares to the
Purchaser during such period.
7.2 FURTHER ASSURANCE BY THE VENDOR
The Vendor shall execute or, so far as it is able, procure the execution of
all such documents and/or do or, so far as it is able, procure the doing
of, such acts and things as the Purchaser shall after Completion require in
order to give effect to the provisions of this Agreement and to give to the
Purchaser the full benefit of this Agreement or any other such document.
8 PAYMENTS
8.1 PAYMENTS TO THE VENDOR
Any amounts payable to the Vendor pursuant to this Agreement shall be paid
by way of telegraphic transfer to the following account of the Vendor:
Bank: Fleet Bank, N.A.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Sort Code: 011000138
Account Name: GZA GeoEnvironmental - Accounts Payable
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Account No.: 027-890-4909
9 GENERAL
9.1 CONTINUING EFFECT OF THIS AGREEMENT
All provisions of this Agreement shall, so far as they are capable of being
performed or observed, continue in full force and effect notwithstanding
Completion, except in respect of those matters then already performed and
Completion shall not constitute a waiver of any of the Purchaser's rights
in relation to this Agreement.
9.2 ANNOUNCEMENTS
Save as (but only to the extent) expressly required by law or by any
relevant national or supra-national regulatory, governmental or
quasi-governmental body or authority, all announcements by, of or on behalf
of the Vendor relating to the subject matter of this Agreement or the
transaction contemplated by this Agreement shall be in terms to be approved
in writing by the Purchaser in advance of issue.
9.3 ENTIRE AGREEMENT
(a) This Agreement sets out the entire agreement and understanding between
the Parties in connection with the sale and purchase of the Sale
Shares and other matters described in them.
(b) Without prejudice to the generality of clause 9.3(a), this Agreement
shall supersede as from the date of this Agreement:
(i) a shareholders agreement dated 10th November 1992 between the
Purchaser, the Vendor and the Company; and
(ii) a letter dated 21st October 1999 from ▇▇▇▇▇▇ ▇▇▇▇▇ of the Vendor
to ▇▇▇▇▇ ▇▇▇▇ of the Purchaser.
9.4 ALTERATIONS
No purported alteration of this Agreement shall be effective unless it is
in writing, refers specifically to this Agreement and is duly executed by
each Party to this Agreement.
9.5 COUNTERPARTS
This Agreement may be entered into in the form of two or more counterparts,
each executed by one or more of the Parties but, taken together, executed
by all and, provided that all the Parties so enter into this Agreement,
each of the executed counterparts, when duly exchanged and delivered, shall
be deemed to be an original, but, taken together, they shall constitute one
instrument.
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9.6 PAYMENT OF COSTS
(a) Subject to clause 9.6(b) each of the Parties shall be responsible for
its respective legal and other costs and expenses incurred in relation
to the negotiation, preparation and completion of this Agreement and
all ancillary documents.
(b) The Purchaser shall reimburse the Vendor for reasonable legal and
accounting costs incurred by the Vendor in relation to the
negotiation, preparation and completion of the Agreement and all
ancillary documents up to a maximum of $14,600.
9.7 SUCCESSORS AND ASSIGNS
(a) This Agreement shall be binding on, and shall enure for the benefit
of, the successors in title of each Party.
(b) Save as provided in clause 9.7(c), none of the Parties to this
Agreement may be entitled to assign the benefit of any rights under
this Agreement.
(c) The benefit of this Agreement shall be freely assignable by the
Purchaser and, in the event of any such assignment, all references in
this Agreement to the Purchaser shall be deemed to include its
assigns.
(d) The Parties agree that any loss suffered by any member of the
Purchaser's Group or any assignee of the Purchaser's rights under this
Agreement as a result of a breach of any provision of this Agreement
shall be treated as, and shall be deemed to be, a loss of the
Purchaser.
10 APPLICABLE LAW AND SUBMISSION TO JURISDICTION
APPLICABLE LAW
10.1 This Agreement shall be governed by and construed in accordance with
English law, and all claims and disputes between the parties or any of them
arising out of or in connection with this Agreement (whether or not
contractual in nature) shall be determined in accordance with English law.
10.2 For the avoidance of doubt, the parties expressly agree if in any court any
party argues that a court (other than a court in England and Wales) has
jurisdiction to determine any dispute or difference between the parties or
any of them arising out of or in connection with this Agreement shall be
determined in accordance with English law, and any right any party might
otherwise have to rely upon the law of the forum is hereby irrevocably and
unconditionally waived.
SUBMISSION TO JURISDICTION
10.3 Each party submits to the jurisdiction of the Courts of England and Wales
in relation to all claims, disputes, differences or other matters arising
out of or in connection
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with this Agreement, provided that nothing in this clause shall prevent the
Purchaser or the Company in its or their sole and unfettered discretion,
from commencing proceedings against the Vendor in any court of competent
jurisdiction.
10.4 Each party irrevocably waives any right that it may have:
(a) to object to an action being brought in those Courts, to claim that
the action has been brought in an inconvenient forum, or to claim that
those Courts do not have jurisdiction. The waiver contained in this
clause includes (without limitation) a waiver of all formal and
substantive requirements of any otherwise competent jurisdiction in
relation to this clause; or
(b) to oppose the enforcement of any judgment of any court of England and
Wales whether on any ground referred to in clause 10.4(a) or
otherwise.
IN WITNESS whereof this Agreement has been entered into as a Deed on the date
specified above.
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SCHEDULE 1
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THE COMPANY
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1 Date of incorporation: 18th June 1991
2 Registered number: 2621323
3 Registered office: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
4 Authorised share capital: (pound)10,000 divided into 5,000 "A"
ordinary shares of (pound)1 each and 5,000
"B" ordinary shares of(pound)1 each
5 Issued share capital: 5,000 "A" ordinary shares all fully paid
registered in the name of the Purchaser
5,000 "B" ordinary shares all fully paid
registered in the name of the Vendor
6 Directors: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
7 Secretary: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
8 Auditors: PricewaterhouseCoopers
9 Accounting reference date: 30 June
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SCHEDULE 2
COMPLETION MATTERS
1 DOCUMENTS AND OTHER ITEMS TO BE DELIVERED BY THE VENDOR
1.1 The following documents and other items set out in the remainder of this
paragraph 1 shall be delivered by the Vendor to the Purchaser at
Completion.
THE SALE SHARES
1.2 A transfer in respect of the Sale Shares ("THE SHARE TRANSFER") duly
executed and completed in favour of the Purchaser.
1.3 Share certificates for the Sale Shares.
BOARD MINUTES OF THE VENDOR
1.4 Certified copies of the board minutes for the Vendor recording the
resolution of the board of directors of the Vendor authorising:
(a) the sale of the Sale Shares held by the Vendor;
(b) the execution of the transfers in respect of such Sale Shares; and
(c) the execution of this Agreement and all relevant Transaction
Documents.
DIRECTOR'S RESIGNATION
1.5 The written resignation of ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ in the agreed form resigning his
office as a director of the Company.
2 OBLIGATIONS OF THE VENDOR
BOARD RESOLUTIONS
2.1 The Purchaser and the Vendor shall procure that written board resolutions
of the Company are passed which:
Registration of the Share Transfer
(a) resolve to register the Share Transfer (subject only to it being duly
stamped) notwithstanding any provision to the contrary in the articles
of association of the Company;
Resignation of director
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(b) approve the resignation of ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ as a director of the
Company; and
Miscellaneous
(c) approve the matters referred in paragraph 4.
REPAYMENT OF INDEBTEDNESS
2.2 The Vendor shall repay to the Company, or procure the repayment to the
Company of, all indebtedness outstanding at Completion from the Vendor in
respect of trading in the ordinary course of business by the Company with
the Vendor which has become payable in accordance with any terms previously
agreed by the Vendor and the Company.
3 OBLIGATIONS OF THE PURCHASER
3.1 The Purchaser shall pay the Purchase Price in accordance with the
provisions of clause 8.
4 JOINT OBLIGATIONS OF THE PURCHASER AND THE VENDOR
4.1 The Purchaser and the Vendor shall join in procuring that:
(a) all existing bank mandates in force for the Company shall be altered
(in such manner as the Purchaser shall at Completion require) to
reflect the resignations and appointments referred to in paragraph
2.1; and
(b) the Company shall repay the loan of (pound)80,000 made to it by the
Vendor in full and final settlement of all and any amounts due by the
Company, plus interest at the rate of 8.5 per cent per annum applied
to all outstanding amounts not paid at Completion until such amounts
are paid in full, to the Vendor (other than any trading in the
ordinary course of business by the Company with the Vendor which has
not yet become payable in accordance with any terms previously agreed
by the Vendor and the Company and which shall be repaid in accordance
with existing arrangements).
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EXECUTED and delivered as a DEED )
by GZA GEOENVIRONMENTAL, INC )
acting by: )
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Director
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Director/Secretary
EXECUTED and delivered as a DEED )
by ▇▇▇▇ BRO GROUP LIMITED )
acting by: )
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Director
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Director/Secretary
EXECUTED and delivered as a DEED )
by ▇▇▇▇ BRO AQUATERRA LIMITED )
acting by: )
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Director
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Director/Secretary
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