Agreement for sale and purchase of shares
AN AGREEMENT dated this 20th day of December 1994
PARTIES:
(1) XXXXXXX XXXXX XXXXXXX of Auckland, Company Director [hereinafter called the
"Vendor"]
(2) XXXXXXX INVESTMENTS (NZ) LIMITED at Whangarei [hereinafter called "the
Purchaser"]
RECITALS:
A SEALCORP COMPUTER PRODUCTS LIMITED at Auckland (the "Company") is a duly
incorporated private company having an issued capital of $100,000.00
divided into 100,000 fully paid ordinary shares of ONE DOLLAR ($1.00) each.
B The Vendor is the beneficial owner of 33,000 ordinary ONE DOLLAR ($1.00)
shares in the capital of the Company (the said shares referred to herein as
the "Shares").
C The Vendor has agreed to sell to the Purchaser, and the Purchaser has
agreed to purchase from the Vendor 32,999 of the Shares in the capital of
the Company for the consideration and upon the terms and conditions
contained in this Agreement.
TERMS OF THIS AGREEMENT:
1 Definitions
1.1 In this Agreement and each Schedule hereto unless inconsistent with the
context, the following terms shall have the following meanings:
"this Agreement" means this Agreement and the Schedule attached.
"Security Interest" means any mortgage, debenture, charge (whether fixed or
floating or both), pledge, lien, right to equitable interest in or other
encumbrance (other than any lien of encumbrance arising by operation of
law) over or affecting the Shares.
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"Interest Rate" means a rate of interest calculated by taking the 90 day
prime commercial xxxx rate on the relevant day or the nearest business day
and adding an additional 6%.
"Settlement Date" means 5.00 pm on the 31st day of January of 1996.
"Share Purchase Price" means "the Total Purchase Price" (as hereinafter
defined) divided by the company's issued capital of $100,000.00 multiplied
by the number of shares namely 32,999.
"Total Purchase Price" means the amount calculated by multiplying the
audited after tax profits of the company for the year ending 31st March
1995 by 3.75 or the sum of $2,500,000.00 whichever is the greater.
2 Interpretation
In this Agreement:
2.1 References: Unless otherwise stated a reference to a clause or to a
Schedule is to a clause in, or a Schedule to, this Agreement.
2.2 Plurals: Words importing the singular shall include the plural and vice
versa.
2.3 Writing: Expressions referring to writing shall be construed as including
references to words printed, typewritten, telexed, lithographed or
otherwise traced, copied or reproduced.
2.4 Currency: Unless otherwise stated, references to dollars and "$" are
references to the lawful currency of New Zealand.
3 Execution
This Agreement may be executed:
3.1 In two or more counterparts all of which shall be deemed originals but
which together constitute one and the same instrument.
3.2 By facsimile copies signed by the parties provided that forthwith after
transmission of the executed Agreement such party will forward to the other
the original executed copies for the purpose of forming the counterparts
referred to in 3.1 above.
4 Sale and purchase of shares
4.1 Subject to the terms and conditions set out in this Agreement and on the
basis of the representations, warranties and agreements contained within
it, the Purchaser agrees to
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purchase from the Vendor and the Vendor agrees to sell to the Purchaser the
Shares for the Share Purchase Price.
4.2 As at the settlement date the company will cause to be prepared company
accounts and for such accounts to be audited by the auditors. The purchase
price shall be ascertained from the audited accounts in the manner set out
in clause 1. 1.
4.3 Accounting standards
If a difference of opinion arises between the vendor and the purchaser as
to whether or not an accounting principle, standard or practice adopted in
the preparation of the settlement accounts is generally accepted in New
Zealand at the date thereof then the difference of opinion in question
shall be referred for arbitration to the President of the New Zealand
Society of Accountants for the time being or his nominee whose decision
shall be final. The accounting principle standard or practice determined in
accordance with the arbitration as being generally accepted in New Zealand
at the date thereof shall be adopted by the parties for the purposes of the
settlement accounts. Pending the determination of the arbitration on any
such difference of opinion the parties shall in accordance with clause 4.4
include in the provisional settlement accounts an amount in respect of any
item which may be affected by the difference of opinion.
4.4 Dispute in respect of settlement accounts
If the parties are unable to reach full agreement on the audit of the
settlement accounts within the time period specified in clause 4.3 they
shall forthwith at the expiry of that time period provide the auditors with
full details of all matters in dispute between them and stating the amount
that party considers should be included or allowed in the settlement
accounts and thereupon the auditors shall complete the settlement accounts
with an audit certificate qualified in respect of the amounts in dispute
and shall refer the amounts in dispute to the parties for agreement and in
such event the settlement accounts shall be referred to as the "provisional
settlement accounts". For the purpose of such provisional settlement
accounts any particular liability, accrual or provision shall be included
in the provisional settlement accounts at the higher of each party's
opinion of the amount of such liability accrual or provision and any
particular asset shall be included at the lower of each party's opinion of
the amount of such asset. For the purposes of clauses 4. 1 and 4.5 the
difference between each such amount shall be referred to as a "disputed
amount".
4.5 Arbitrator
The parties shall use their best endeavours to reach agreement on all
disputed amounts within fourteen (14) days of the receipt by the parties of
the provisional settlement accounts but failing agreement the disputed
amounts shall be referred to such arbitrator as is agreed by the parties
within the same period of fourteen (14) days it being the
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intention of the parties that at the same time as they endeavour to reach
agreement they also endeavour to agree on an arbitrator as a precautionary
measure. Failing agreement by them within fourteen (14) days on all the
disputed amounts and on an arbitrator then the disputed amounts shall be
referred to such arbitrator as is appointed by the President of the New
Zealand Society of Accountants and the decision of such arbitrator as to
the disputed amounts shall be final and binding on the parties. The parties
shall take all reasonable steps to expedite such arbitration.
5 Settlement
5.1 Settlement of the sale and purchase of the Shares shall be effected on the
Settlement Date and shall take place at the offices of Xxxxxx Xxxxxx &
Partners, Solicitors, Whangarei..
5.2 Delivery of Documents: Upon receipt of the Share Purchase Price the Vendor
shall deliver to the Purchaser:
(a) The share certificate or certificates for the Shares (if such
certificate exist).
(b) Duly executed transfers of the Shares in favour of the Purchaser or
any nominee or nominees of the Purchaser in registrable form; and
(c) All other documents listed below, the form and content of such
documents to have been previously agreed between the Vendor and the
Purchaser where appropriate:
(i) A waiver signed by the shareholders of the Company waiving all
rights of pre-emption conferred on them by the Articles of
Association of the Company in respect of the transfer of all of
the Shares.
(ii) A resolution of the Directors of the Company approving the
transfers of the Shares and directing that upon presentation of
those transfers duly executed the name of the Purchaser and/or
its nominees (as the case may be) be entered in the register as
members of the Company in respect of the said shares.
(iii)Evidence of the release of the Shares from all Security
Interests over them (if any).
5.3 On payment of the Share Purchase Price the Vendor shall also deliver to the
Purchaser:
(a) Effective resolutions of the shareholders of the Company appointing
such persons as Directors and Secretary of the Company as the
Purchaser may notify, such appointments to be effective from the
Settlement Date.
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(b) Such effective resolutions of the Company altering its Articles of
Association as the Purchaser may reasonably require.
(c) The Memorandum and Articles of Association, Certificates of
Incorporation, Minute Books and all other books, documents,
debentures, mortgages, agreements, registers, common seals, accounts,
records, keys and papers belonging to or held by the Company, or (in
the case of documents, debentures, mortgage agreements and papers) to
which the Company is a party.
(d) The Company's copy of all documents of title, leases of premises
and/or plant and vehicle and of all hire purchase agreements and
charges (to the extent such items have not already been made available
under subclause (c) above).
(e) Any licences, distributorship, agency and like agreements under which
the Company sells or manufactures any products or applies any design
or trade xxxx thereto (to the extent such items have not already been
made available under subclause (c) above).
(f) Certificates of registration and renewals of trade marks, registered
designs and patents, if any, held by the Company and copies of all
licences and registered user agreements relating to trade marks,
registered designs and patents (to the extent such items have not
already been made available under subclause (c) above).
6 Payment
6.1 The Share Purchase Price shall be satisfied by the Purchaser granting in
favour of the vendor a mortgage of shares in the form attached.
7 Default interest
7.1 If (save for the default of the Vendor) any portion of the money payable to
the Vendor pursuant to this Agreement shall not be paid on the Settlement
Date then the Purchaser shall pay to the Vendor interest on such moneys in
respect of which default has been made at the Interest Rate, for the period
from and including the Settlement Date until the relevant amount in respect
of which such default has been made and all interest thereof has been paid
in full. Such interest shall be calculated on a daily basis, and shall be
payable without prejudice to any of the Vendor's rights and remedies under
this Agreement or otherwise howsoever.
8 Representation and warranties
The Vendor warrants with the Purchaser that:
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8.1 Authority: The Vendor has full corporate power and authority to execute and
deliver this Agreement and to fulfil its obligations hereunder.
8.2 Ownership: The Vendor is the beneficial owner of the Shares in the capital
of the Company.
8.3 No security interests: As at Settlement Date, the Shares will be held by
the Vendor free and clear of all Security Interests.
8.4 No options: The Vendor will not prior to settlement grant to any person
under any contract or agreement a right or option for such person to take
shares in the capital of the Company.
8.5 No assets: The Vendor does not directly or indirectly own, nor is
beneficially entitled to, any of the assets normally employed in the day to
day operation of the business of the Company.
8.6 Inter-company debts: As at Settlement Date the Vendor will have repaid to
the Company any and all outstanding inter-company indebtedness, other than
such debts as may occur during or arise out of the normal course of
business, and that no such debts will be owing by the Company to the
Vendor.
9 Undertakings on conduct of business
9.1 Until Settlement Date or the termination of this Agreement, whichever is
the earlier, the Vendor undertakes to the Purchaser that it will use its
best endeavours as a shareholder of the Company to ensure that the Company
does not:
(a) Enter into any further significant obligations or contracts other than
those previously approved in writing by the Purchaser; or
(b) Create any further mortgage, charge or otherwise encumber its assets
or any of them; or
(c) Pay any dividend or make any other distribution to any shareholder
from the Company's profits in respect of the issue capital of the
Company;
(d) Do anything nor pass any resolution which may defeat or prejudice the
provisions of this Agreement; or
(e) Alter its Memorandum or Articles of Association prior to the
Settlement Date
PROVIDED THAT the Purchaser hereby acknowledges and agrees that the Vendor,
as a shareholder in the Company, cannot, and does not seek to, usurp to the
shareholders
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of the Company the day to day management and control of the Company vested
in the directors of the Company under and by virtue of the Articles of
Association of the Company and at common law. The Purchaser therefore
agrees that the Vendors undertakings in this clause of this Agreement do
not extend to commitments, acts or omissions properly in the domain of the
directors of the Company and carried out in the normal course of business
of the Company up to and including the Settlement Date.
10 Conditions precedent to agreement
10.1 The creation of the contractual obligations represented by this Agreement
are subject to the Vendor obtaining all necessary approvals, releases and
consents to enable it to sell and pass good clear title to the Shares free
of any and all Security Interest at or before 5 pm on the [tenth] business
day after the date of this Agreement including:
(a) Consents: The consent of any and of all of the Company's mortgages or
chargeholders, if necessary, to the sale of the Shares.
(b) The execution of a waiver of pre-emptive rights, under the Articles of
the Company by the parties thereto, such waiver to be for the
transaction in this Agreement.
11 Conditions precedent to settlement
11.1 The obligations of the Vendor to complete settlement of the transaction
contained and contemplated under this Agreement are subject to the
satisfaction of the following conditions precedent, namely, the procurement
of unconditional releases of all guarantees, indemnities, or assurances or
like kind given by the Vendor in respect of any obligation of the Company,
prior to the date specified in clause 10.
12 Waiver of conditions
12.1 In the event that any of the conditions contained in clauses 10 and 11 are
not satisfied on or prior to the dates stipulated then either party (in the
case of clause 10) or the Vendor (in the case of clause 11) shall have the
right to terminate this Agreement and no party shall have any claim against
the other, other than claims arising out of the obligations in clause 15.
Either party may choose to waive its right to insist on the satisfaction of
any one or more of the conditions precedent, and in the event that both
parties waive any one or more of the conditions precedent in clause 10, or
the Vendor waives the requirement of satisfaction of a condition precedent
in clause 11, then any such waived condition precedent shall be deemed to
be satisfied on the date of waiver.
13 Effect of termination
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13.1 In the event of termination of this Agreement pursuant to clause 12 this
Agreement shall thereafter become void and except as provided in clause 15
shall have no effect and none of the parties to this Agreement shall have
any liability to any of the other parties except that nothing in this
clause shall relieve any party from liability for any breach of this
Agreement prior to such termination. No party shall in any event be liable
to any other party for loss of anticipated profits from the transactions
contemplated by this Agreement or any other consequential damages arising
out of the termination of this Agreement.
14 No assignment
14.1 Neither party to this Agreement shall have the right to assign its benefits
under this Agreement to any third party. This clause shall not operate to
prevent a party assigning to a subsidiary or associated company within its
group, nor to prevent it assigning pursuant to a corporate reconstruction.
15 Publicity -- confidentiality
15.1 Except as required by law and the Rules of the New Zealand Stock Exchange,
no announcement shall be made by the Vendor or the Purchaser as to the
subject matter or terms of this Agreement except at such time and in such
form and manner as they shall agree.
15.2 In the event that the sale of the Shares does not proceed the Purchaser
covenants not to disclose whether directly or indirectly any information
relating to the Company and its business without the prior written consent
of the Vendor. Any such disclosure that is detrimental to the business of
the Company shall be actionable by the Company and the Vendor and a benefit
is hereby conferred on the Company under the Contracts (Privity) Xxx 0000
for this purpose.
16 Merger
16.1 Notwithstanding any rule of law to the contrary, none of the
representations, undertakings, warranties and covenants contained in this
Agreement shall merge or be extinguished upon settlement, but shall
continue to remain in full force and effect.
17 Payment of expenses
17.1 Each party will pay all fees and expenses incurred by it in connection with
this Agreement and the transactions contemplated in this Agreement.
18 Entire agreement, amendments and waivers
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18.1 This Agreement (and any schedules to it) constitutes the entire agreement
between the parties and supersedes all prior agreements, understandings,
negotiations, representations and discussions, whether oral or written, of
the parties. The Vendor makes the representations and warranties set forth
in clause 8 and no others. Any and all implied warranties are expressly
excluded. No supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by the parties to this Agreement. The
Vendor and/or the Purchaser may, at its or their option, waive in writing
any or all of the conditions in this Agreement to which its or their
obligations are subject. No waiver of any of the provisions of this
Agreement shall be deemed to constitute a waiver of any other provision
(whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
19 Headings, table of contents
19.1 The headings and the table of contents are inserted for convenience and
reference only and shall not affect the meaning or interpretation of this
Agreement.
20 Severability
20.1 In the event that any one or more of the provisions contained this
Agreement shall for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement or
any other such instrument.
21. Re-Registration
Forthwith after the company is re-registered under the Companies Xxx 0000
in consideration of the sum of $1.00 to be paid by the purchaser to the
vendor the vendor shall transfer to the purchaser the vendor's one
remaining share.
SIGNED by the said XXXXXXX XXXXX ) /s/ XXXXXXX XXXXX XXXXXXX
XXXXXXX in the presence of [ILLEGIBLE] -------------------------
Witness: [ILLEGIBLE]
Occupation: PA to Managing Director
Address: 00 Xxxxxxxx Xx
Xx. Xxxxxx, XX.
THE COMMON SEAL of )
XXXXXXX INVESTMENTS (NZ) )
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[SEAL]
LIMITED was hereunto affixed
in the presence of:
/s/ Ean Innes Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
------------------- (Director) by his attorney Ean Innes
Xxxxx
/s/Xxxxxx de Brocas Melody de Brocas (Secretary) by her
------------------- attorney Xxxxxxx Xxxxx Xxxxxxxxx
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