EXHIBIT 2.1
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AGREEMENT dated 2nd April 1998
BETWEEN XXXXXXX XXXXX XXXXXXX of 00 Xxxxxxxxx Xxxx, Xxxx Xxx, Xxx Xxxxx
Xxxxx 0000
AND XXXXXXX XXXX XXXXXXX of 00 Xxxxxxxxx Xxxx, Xxxx Xxx, Xxx Xxxxx
Xxxxx 0000
(hereinafter collectively referred to as the "Vendors")
AND HYDE INTERNATIONAL SERVICES LIMITED incorporated in Hong Kong of
c/- Hyde Athletic Industries Inc., Centennial Industrial Park,
Peabody, United States of America ("Purchaser")
RECITALS
A. Saucony S.P. Pty Limited, ACN 003 742 087 is a company limited by shares
incorporated in New South Wales with its registered office at 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxx Xxxxx ("Company").
B. Each Vendor is the registered and beneficial owner of the number of
shares in the issued share capital of the Company set out adjacent to
that Vendor's name in Schedule 1 (collectively, "Sale Shares").
C. The Vendors have agreed to sell and the Purchaser has agreed to purchase
the Sale Shares on the terms and conditions contained in this Agreement.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Articles of Association" means as the case requires the articles of
association of the Company in the form in which they are at the date of
this Agreement.
"Auditors" means the auditors of the Company, Xxxxx Xxxxxxxx.
"Bite Inventory" means the inventory of the Bite brand of products either
held by the Company, or for which the Company has placed an order, as at
27 March 1998.
"Business" means the business of wholesaling and importing sportswear
carried on by the Company in all of the States and Territories of
Australia and in New Zealand.
"Business Contracts" means all agreements, leases, contracts and
arrangements to which the Company is a party and which are, in whole or
in part, executory as at Completion.
"Business Day" means a day on which all banks are open for business
generally in Sydney.
"Claims or Actions" means any claims, demands or causes of action
(whether based in contract, tort or statute) in respect of this Agreement
or any part thereof (including but not limited to the warranties
contained in Schedule 2) or relating to the Sale Shares or the sale of
the Sale Shares or to any aspect of the Company or the Company's affairs.
"Company" has the meaning given in Recital A.
"Completion" means completion of this Agreement and the sale and purchase
of the Sale Shares in accordance with the terms of this Agreement.
"Completion Date" means the date on which Completion occurs.
"Confidential Information" means in relation to the Company all knowledge
of secret processes, technical know-how, techniques, discoveries,
inventions, ideas, research, engineering and manufacturing methods,
practices, systems, formulae, drawings, trade secrets and special purpose
computer programs, financial, marketing and other confidential
information and data subsisting in or relating to the Business.
"Deed of Release" means the deed (so named) between the Vendors, the
Purchaser and the Company dated on or about the date of this Agreement.
"Disclosure Letter" means the letter from the Vendors to the Purchaser
dated the date of this Agreement.
"Encumbrance" includes any mortgage, charge, pledge and lien.
"Intellectual Property Licenses" means all agreements under which the
Company obtains from any person the exclusive or non-exclusive right to
use, but not the ownership of, any of the Intellectual Property Rights
referred to in paragraphs (a) to (c) inclusive of the definition of that
term.
"Intellectual Property Rights" means:
(a) the business names or trade marks owned or used at any time
by the Company;
(b) the Confidential Information owned or used at any time by
the Company;
(c) the patents, patent applications, registered designs,
unregistered designs, copyright and all other similar
rights owned or used at any time by the Company; and
(d) the Intellectual Property Licenses.
"Last Accounts" means the audited consolidated balance sheet and profit
and loss account of the Company for the year ended on the Last Accounts
Balance Date, true copies of which are annexed to this Agreement.
"Last Accounts Balance Date" means 2 January 1998.
"Leases" means the leases held by the Company of real property.
"Memorandum and Articles of Association" means as the memorandum and
articles of association of the Company in the form in which they are in
at the date of this Agreement.
"Officer" means, in relation to a corporation, an officer within the
meaning of section 9 of the Corporations Law.
"Premises" means all the land and buildings owned, leased or occupied by
the Company.
"Purchase Price" means $5.00.
"Related Body Corporate" has the meaning given in section 9 of the
Corporations Law.
"Related Entity" means in relation to a person:
(a) if the person is a body corporate, a "related entity" (within the
meaning of section 9 of the Corporations Law); and
(b) if the person is a natural person, a "relative" (within the
meaning of section 9 of the Corporations Law), any body corporate
controlled by the person or a relative of the person and any
related entity of any such person.
"Respective Proportions" means:
(a) as to Xxxxxxx Xxxxx Xxxxxxx, 50%; and
(b) as to Xxxxxxx Xxxx Xxxxxxx, 50%.
"Revenue Authority" means any Federal, State, Territory or local
governmental authority or instrumentality in respect of Tax.
"Sale Shares" means those of the shares issued in the capital of the
Company described in Schedule 1.
"Specified Business Contracts" means those material Business Contracts
referred to in clause 9.1, details of which are set out in Schedule 3.
"State" means the State of New South Wales.
"Superannuation Commitment" means any legal liability (whether arising
under an industrial award or agreement or otherwise), or voluntary
commitment to make contributions to any superannuation fund, pension
scheme or other arrangement which will provide directors or employees of
the Company or their respective dependents with pensions, annuities, lump
sum or any other payments upon retirement or earlier death or otherwise.
"Tax" means income tax (including capital gains tax), franking deficit
tax, franking additional tax, pay-as-you-earn remittances, prescribed
payments, withholding tax (including deductions pursuant to a royalty
withholding obligation), fringe benefits tax, customs duty, sales tax,
payroll tax, land tax, stamp duty, financial institutions duty, debits
tax, municipal rates and all other taxes, charges, imposts, duties and
levies and any penalties, interest, fines or other costs relating
thereto.
"Tax Act" means the Income Tax Assessment Xxx 0000, the Taxation
Administration Xxx 0000, Income Tax Rates Xxx 0000 and other rating Acts,
the Income Tax Regulations and related Commonwealth income taxation
legislation and regulations.
"$" means Australian Dollars.
"Vendors Receivable" means all amounts owing by the Company to the
Vendors or any Related Entity of the Vendors including any loans,
advances, costs, expenses or other liabilities (contingent deferred or
otherwise) as at Completion.
1.2 Interpretation
In this Agreement:
(a) headings are for convenience only and do not affect
interpretation;
and unless the context indicates a contrary intention:
(b) words importing the singular number include the plural and
vice versa and words denoting a given gender include all
other genders;
(c) the expression "persons" includes an individual, the estate
of an individual, a body politic, a corporation and a
statutory or other authority or association (incorporated
or unincorporated);
(d) references to parties, clauses, sub-clauses, schedules,
exhibits or annexures are references to parties, clauses,
sub-clauses, schedules, exhibits and annexures to or of
this Agreement, and a reference to this Agreement includes
any schedule, exhibit and annexure;
(e) references to this Agreement, or any other deed, agreement,
instrument or document will be deemed to include references
to this Agreement, or such other deed, agreement,
instrument or document as amended, novated, supplemented,
varied or replaced from time to time;
(f) a reference to an agreement includes a representation,
undertaking, deed, agreement or legally enforceable order
or arrangement or understanding whether or not in writing;
(g) a reference to a document includes any written agreement
and any certificate or note or other document of any kind;
(h) references to any person or to any party to this Agreement
include that person's or party's executors, administrators,
successors and permitted assigns;
(i) where any word or phrase is given a defined meaning, any
other part of speech or grammatical form in respect of that
word or phrase has corresponding meaning;
(j) if any day appointed or specified by this Agreement for the
payment of any money or doing of any thing falls on a day
which is not a Business Day, the day so appointed or
specified will be deemed to be the next Business Day;
(k) where 2 or more parties to this Agreement make a joint
covenant, undertaking, representation or warranty, the same
will be construed to refer to and bind each of the parties
jointly and each of them severally;
(l) references to payments to any party to this Agreement will
be construed to include payments to another person upon the
direction of such party;
(m) all payments to be made under this Agreement will be made
by unendorsed bank cheque or other immediately available
funds; and
(n) reference to any legislation or to any section or provision
thereof includes any statutory modification or re-enactment
thereof or any statutory provision substituted therefor and
ordinances, by-laws, regulations and other statutory
instruments issued thereunder.
2. CONDITIONS PRECEDENT
2.1 Foreign Acquisitions and Takeovers Act
This Agreement (other than clauses 5, 11 and this clause 2) shall not
become binding unless and until the first to occur of:
(a) the first date on which the Treasurer of the Commonwealth of
Australia ("Treasurer") ceases under section 25(2) of the Foreign
Acquisitions and Takeovers Xxx 0000 ("Act") to be empowered to
make an order under Part II of the Act in relation to the entering
into and completion of this Agreement or the acquisition by the
Purchaser of the Sale Shares and of the Vendors Receivables; and
(b) the date on which notice in writing is issued by or on behalf of
the Treasurer to the effect that the Government of the
Commonwealth of Australia does not object to the Purchaser
entering into and completing this Agreement or, alternatively,
does not object to the Purchaser acquiring the Sales Shares and
the Vendors Receivables or, alternatively, does not object to the
proposal specified in the notice described in section 25(1)(a) of
the Act that was given to the Treasurer in relation to the
acquisition.
2.2 Interpretation
Words and expressions used in this clause which are also used in section
25 of the Act have the same meaning in this clause as in that section.
2.3 Notice
A notice shall not be a notice for the purposes of clause 2.1(b) if it is
issued on a condition or conditions which is or are unacceptable to the
Purchaser and the Purchaser gives to the Vendor written notice of its
unacceptability to the Purchaser within 5 Business Days of the Purchaser
becoming aware of the terms of the notice.
2.4 Co-operation of parties
Each of the parties shall co-operate with the other and do all in that
party's power to procure that this Agreement does become binding in
accordance with this clause 2 as soon as is reasonably practicable after
the date of this Agreement.
2.5 Duties of parties
Without limiting the generality of clause 2.4:
(a) the Purchaser shall on or before the date being 5 Business Days
after the date of this Agreement deliver to the Treasurer all
necessary and appropriate notices and applications and
subsequently supply all necessary appropriate information for the
purpose of enabling this Agreement to become binding under this
clause 2;
(b) neither party shall take any action that would or would be likely
to prevent or hinder completion of this Agreement if this
Agreement becomes binding;
(c) each party shall supply to the other copies of all applications
made, notices given and all information supplied for the purpose
of enabling this Agreement to becoming binding;
(d) the Purchaser shall not withdraw the notices and applications
lodged with the Treasurer without the prior written consent of the
Vendor, provided that the Purchaser shall be entitled on one
occasion only to withdraw the said notices and the said
application without having to seek the consent of the Vendor so
long as fresh notices and a fresh application all identical in
form and substance to those withdrawn are lodged with the Foreign
Investment Review Board contemporaneously with the withdrawal;
(e) each party shall have the right to make submissions to the
Treasurer notwithstanding that the other party may have made
application and supplied information to the Treasurer and each
party shall upon receiving any request for information from the
Treasurer provide such of that information as is in that party's
possession or control; and
(f) within one Business Day of the Purchaser having become aware that
this Agreement has in terms of clause 2.1 become binding or has in
terms of clause 2.1 become incapable of becoming binding, the
Purchaser shall notify the Vendor in writing of the same.
2.6 No approval
Save for this clause 2 and clauses 5 and 11, this Agreement shall be null
and void and of no further effect if:
(a) notice in writing issues by or on behalf of the Treasurer to the
effect that the Government of the Commonwealth of Australia
objects to the Purchaser entering into or completing this
Agreement or acquiring the Sale Shares;
(b) the Purchaser gives a notice of the type described in clause 2.3;
or
(c) this Agreement does not become binding under this clause 2 prior
to 30 June 1998.
3. SALE OF SALE SHARES AND ASSIGNMENT OF VENDORS RECEIVABLES
3.1 Sale of Sale Shares
Each of the Vendors will sell to the Purchaser and the Purchaser will
purchase from that Vendor the number of the Sale Shares set out adjacent
to that Vendor's name in Schedule 1.
3.2 Assignment of Vendors Receivables
Each of the Vendors will assign to the Purchaser and the Purchaser will
accept an assignment from the Vendors of the Vendors Receivables.
3.3 Interdependence
Each agreement to sell and purchase and to assign between each of the
Vendors and the Purchaser will be conditional and interdependent one on
the other, and each of those agreements will be settled simultaneously in
the manner provided in this Agreement.
4. PURCHASE PRICE AND PAYMENTS
4.1 Purchase Price
The Purchase Price is the price to be paid by the Purchaser for:
(a) the Sale Shares (as to $4.00); and
(b) the Vendors Receivables (as to $1.00).
4.2 Payment of the Purchase Price
The Purchase Price will be paid by the Purchaser to the Vendors in their
Respective Proportions on the Completion Date.
5. PERIOD BEFORE COMPLETION
5.1 Vendors' obligations on signing
(a) On the date of this Agreement the Vendors will deliver to
the Purchaser:
(i) the share certificates for the Sale Shares;
(ii) completed transfers of the Sale Shares duly executed
by the registered holder of those shares in favour
of the Purchaser as transferee;
(iii) any consent or consents to the transfers referred to
in clause 5.1(a)(ii) contemplated by any pre-emptive
rights or provisions in the Articles of Association;
(iv) the common seal, certificate of incorporation, asset
register, all other registers, Company credit cards,
management accounts, budgets and all books of
accounts, ledgers, records, documents and other
business papers of any kind of the Company;
(v) all keys to business premises owned or leased by the
Company;
(vi) written and duly executed resignations with effect
from the Completion Date from:
A. the directors of the Company that have been
appointed as nominees of the Vendors;
B. the secretary of the Company that have been
appointed as nominees of the Vendors; and
C. if so requested by the Purchaser, the
Auditors;
(vii) all cheque books of the Company;
(viii) a list of all bank accounts maintained by the
Company;
(ix) a consent to the appointment of Xxxx Xxxxxxx as a
signatory to the Company's accounts (cheque, savings
or otherwise) with the bank; and
(x) a written direction to the Company's bankers that
with effect from the date of the direction, the
Vendors are not to be signatories to any of the
Company's accounts (cheque, savings or otherwise)
with the bank.
(b) The Purchaser and the Vendor are to instruct the
Purchaser's solicitors, Xxxxxxx Xxx, to hold in escrow
pending Completion the documents referred to in paragraphs
(a)(i), (ii) and (vi).
(c) In the case of the items referred to in clauses 5.1(a)(iv),
(v) and (vii), delivery will be made by leaving those items
in a safe and appropriate place at the Company's principal
office or at any other place as the parties may agree.
5.2 Period before Completion
Until Completion:
(a) the Vendors will ensure that the Company carries on its
business in the ordinary course; and
(b) the Vendors will ensure that the Purchaser is consulted in
relation to the day to day management of the affairs of the
Company.
6. COMPLETION
6.1 Completion place and date
Completion shall take place at Xxxxx 00, 0 X'Xxxxxxx Xxxxxx, Xxxxxx on
the day being 2 Business Days after the date on which this Agreement
becomes binding under clause 2.1 or on such other date as the parties may
agree upon in writing.
6.2 Vendors' obligations on Completion
Subject to the Purchaser satisfying its obligations under clause 6.3, on
Completion the Vendors will:
(a) (Delivery): give and deliver to the Purchaser a written
authority addressed to the Purchaser's solicitors, to
release from escrow and to deliver to the Purchaser the
following:
(i) the share certificates for the Sale Shares;
(ii) completed transfers of the Sale Shares duly executed
by the registered holder of those shares in favour
of the Purchaser as transferee;
(iii) written and duly executed resignations with effect
from the Completion Date from:
A. the directors of the Company that have been
appointed as nominees of the Vendors;
B. the secretary of the Company that have been
appointed as nominees of the Vendors; and
C. if so requested by the Purchaser, the
Auditors.
(b) (Meetings): cause a meeting of the directors of the Company
to be held at which:
(i) persons nominated in writing for that purpose by the
Purchaser and having consented in writing to
appointment will be appointed directors of the
Company;
(ii) persons nominated in writing for that purpose by the
Purchaser and having consented in writing to
appointment will be appointed secretaries of the
Company;
(iii) the directors of the Company resolve to accept the
resignations referred to in clause 6.2(a)(iii);
(iv) the directors of the Company resolve to register the
share transfers referred to in clause 6.2(a)(ii)
subject to those transfers being stamped.
6.3 Purchaser's obligations on Completion
Subject to the Vendors satisfying their obligations under clause 6.2, the
Purchaser will on Completion pay the Purchase Price to the Vendors in
their Respective Proportions.
6.4 Title
On Completion, beneficial ownership in the Sale Shares will pass to the
Purchaser free of any Encumbrance.
6.5 Interdependence
The requirements of clauses 6.2 and 6.3 are interdependent and are to be
carried out contemporaneously. No delivery or payment will be deemed to
have been made until all deliveries and payments have been made.
7. WARRANTIES
7.1 Vendors' warranties
As part of the terms of the sale of the Sale Shares, but subject to
clauses 7.2 and 8, the Vendors warrant to the Purchaser in the terms set
out in Schedule 3 and so warrant as at the date of this Agreement and
separately as at a time immediately before Completion.
7.2 Exemption
The warranties set out in Schedule 2 are given subject to disclosures or
matters recorded in this Agreement and in the Disclosure Letter and the
Purchaser will not claim that any fact or matter causes any of those
warranties to be untrue or misleading or causes them to be breached if
the fact or matter:
(a) is disclosed in this Agreement; or
(b) is disclosed in the Disclosure Letter.
8. BUSINESS CONTRACTS
8.1 Disclosure of Business Contracts
The Purchaser has disclosed to the Vendors in Schedule 3 details of all
material Business Contracts.
8.2 General Business Contracts
The Vendors and the Purchaser will each use their best endeavours to
procure the agreement or consent of the other party to each of the
Business Contracts (if the agreement or consent of that other party is
required under the terms of the relevant Business Contract) to the change
in control of the Company which occurs as a result of the transactions
contemplated by this Agreement.
9. RESTRAINT OF TRADE
9.1 Restraint of trade generally
(a) To protect the interests of the Purchaser in the goodwill
of the Business, each of the Vendors covenants with and
undertakes to the Purchaser that, it will not directly or
indirectly undertake, carry on or be engaged in any
business of marketing, selling, supplying or distributing
running shoes, walking shoes, cleated footwear (under any
brand names), protective equipment (under the "Sondico"
name), golf shoes (under the "Bite" name) or boots (under
the "Hitec" name) ("relevant business");
(b) (i) on his or her own account;
(ii) jointly with or on behalf of any other person, firm or
company;
(iii) as an employee, manager, director, shareholder, member,
partner, joint venture participant, consultant, or in any
other capacity;
(c) (i) within New South Wales;
(ii) within Victoria;
(iii) within Queensland;
(iv) within Tasmania;
(v) within the Australian Capital Territory;
(vi) within South Australia;
(vii) within Western Australia;
(viii) within the Northern Territory;
(ix) within New Zealand.
(d) in the case of a relevant business (other than one
involving protective equipment using the brand name
"Sondico" or golf shoes using the brand name "Bite"):
(i) for the period of one year after the Completion
Date;
(ii) for the period of one year commencing on the first
anniversary of the Completion Date;
(iii) for the period of one year commencing on the second
anniversary of the Completion Date.
(e) in the case of a relevant business to the extent that it
involves protective equipment using of the brand name
"Sondico" or golf shoes using the brand name "Bite" or any
derivation of such names, for a period of 6 months from the
date of the Agreement.
9.2 Severance
If any part or any provision or part of a provision of clause 9.1 is held
or found to be void, invalid or otherwise unenforceable, it will be
deemed to be severed to the extent that it is void or to the extent of
voidability, invalidity or unenforceability, but the remainder of that
clause will remain in full force and effect.
9.3 Exceptions
Notwithstanding anything to the contrary contained in clause 9.2, the
Vendors will not be in breach of clause 9.1 by reason of the Vendors
undertaking activities in accordance with (and limited to) the Specified
Business Contracts including the marketing, selling, supplying and
distributing the Sondico and Bite sportswear and sport related products.
9.4 Bite Inventory
On the next Business Day after the day that is 6 months from the date of
the Agreement, the Vendor will purchase from the Company any Bite
Inventory from the Purchaser at its book value as at 27 March 1998.
10. GENERAL
10.1 Further assurance
The parties covenant and agree that each will do all acts and things and
execute all deeds and documents and other writings as are from time to
time reasonably required for the purposes of or to give effect to this
Agreement.
10.2 Governing law
This Agreement will be governed by and construed in accordance with the
laws of the State, and the parties agree to submit to the jurisdiction of
the Courts in the State.
10.3 Waiver
No waiver of any breach of this Agreement will be held or construed to be
a waiver of any other subsequent or antecedent breach of this Agreement.
10.4 Set-off
Any undisputed amounts due and payable by any party to another under this
Agreement may be set-off against any other undisputed amount that may be
due and payable on the same day to the firstmentioned party by the other,
provided that when tendering payment, the firstmentioned party
accompanies the payment with a statement setting out details of the gross
amount owing and all individual amounts set-off against that amount.
10.5 Notices
All notices, requests, consents and other documents authorized or
required to be given by or under this Agreement will be given in writing
and either personally served or sent by facsimile transmission ("fax")
addressed as follows:
The Vendors
(a) To: Xxxxxxx Xxxxx Xxxxxxx
Address: 00 Xxxxxxxxx Xxxx, Xxxx Xxx, XXX, 0000
Fax No: None
(b) To: Xxxxxxx Xxxx Xxxxxxx
Address: 00 Xxxxxxxxx Xxxx, Xxxx Xxx, XXX, 0000
Fax No: None
The Purchaser
(a) To: Hyde International Services Limited
Address: c/- Hyde Athletic Industries Inc., Centennial
Industrial Park, Peabody, United States of America
Fax No: 0000 0 000 000 0000
AND copied to Xxxxxxx Xxx (as solicitors for the Purchaser):
(b) To: Xxxxxxx Xxx Lawyers (Attention: Xxxxx Xxxxxxxx)
Address: Xx. 0 X'Xxxxxxx Xxxxxx, Xxxxxx, XXX, 0000
Fax No: 0000 0000,
and all notices, requests, consents and other documents authorized or
required to be given to the Purchaser under this Agreement must also be
copied to Xxxxxxx Xxx by either being personally served or sent by fax to
the above address.
Notices, requests, consents and other documents ("Notices") will be
deemed served or given:
(a) if personally served, by being left at the address of the party to
whom the Notice is given between the hours of 9.00 am and 5.00
p.m. on any Business Day, at the time the Notice is delivered;
(b) if sent by fax, when successfully transmitted during business
hours, or if not during business hours, then when business hours
next commence.
Any party may change its address for receipt of Notices at any time by
giving notice to the other party. Any Notice given under this Agreement
may be signed on behalf of any party by the duly authorized
representative of that party and will be sent to all other parties to
this Agreement.
10.6 Public announcements and confidentiality
(a) Each of the parties will procure that neither it nor any of
its Related Bodies Corporate will make any public
announcement or disclosure to any person in relation to
this Agreement, or information of which it has become aware
in connection with this Agreement, unless it first consults
with and obtains the agreement in writing of the other
parties, which agreement is not to be unreasonably
withheld, but:
(i) following consultation, no party will be entitled to
withhold agreement in the case of a public
announcement or notification where and to the extent
that the same is required by law or the listing
requirements of the United States Securities and
Exchange Commission, NASDAQ or the Australian Stock
Exchange Limited; and
(ii) a party will be entitled to make disclosures to the
directors, secretary, professional advisers and
bankers of that party and its Related Bodies
Corporate so long as the party uses all reasonable
endeavours to ensure that the matters disclosed are
kept confidential.
(b) If this Agreement is rescinded or terminated, the Purchaser
will stop using and return to the Vendors all information
and documents disclosed or provided to it or to any Related
Body Corporate of it or to the directors, secretary or
professional advisers of the Purchaser or of any such
Related Body Corporate in connection with the sale of the
Sale Shares.
10.7 Counterparts
This Agreement may be signed in any number of counterparts, all of which
taken together being deemed to constitute the one document.
10.8 Modification
This Agreement may not be modified, amended, added to or otherwise varied
except by a document in writing signed by each of the parties or signed
on behalf of each party by a director under hand.
10.9 Stamp duties
The Purchaser will pay all stamp duties (apart from receipts duties,
financial institutions duties or bank account debits taxes which shall
lie between the parties as they fall) assessed on or in relation to this
Agreement or any of the matters or transactions or sales under this
Agreement, or under any document drawn in consequence of this Agreement.
10.10 Legal costs
Each party will pay its own legal costs in relation to this Agreement.
10.11 Merger
(a) The rights and obligations of the parties in respect of
agreements, indemnities, covenants and warranties contained
in this Agreement will be continuing agreements, covenants,
indemnities, and warranties and accordingly will not be
merged or extinguished by or on Completion, or be
prejudiced or affected by the Purchaser's acceptance of the
Sale Shares under this Agreement, or by the payment of the
whole or any part of Purchase Price, or any other money
payable under this Agreement.
(b) Notwithstanding Completion, the provisions of this
Agreement will remain in full force and effect as to the
obligations of the parties respectively remaining to be
performed after Completion.
10.12 Survival of certain provisions
(a) Clause 11 survives the rescission or termination of this
Agreement.
(b) If this Agreement is rescinded or terminated, no party is
liable to the other parties except in respect of any breach
of this Agreement occurring before rescission or
termination.
10.13 Entire agreement
This Agreement constitutes the entire agreement and basis of the
transaction between the parties in relation to its subject matter.
The parties have negotiated the terms of this Agreement with the
assistance of their legal advisers and accept that they rely on
only those matters expressly set out in this Agreement. Any
statement, disclosure, representation, warranty, condition,
promise, undertaking or other provision not expressly set out in
this Agreement has not been relied on, and for that reason has no
force or effect.
10.14 Assignment
Neither party may assign this Agreement without the prior written
consent of the other party.
SIGNED as an agreement.
SIGNED by XXXXXXX XXXXX ) /s/ Xxxxxxx Xxxxx Xxxxxxx
XXXXXXX in the presence of: ) ...........................
(Signature)
/s/ Xxxxxxx Xxxxxx
.....................................................
(Signature of Witness)
Xxxxxxx Xxxxxx
.....................................................
(Name of Witness in Full)
SIGNED for and on behalf of XXXXXXX ) /s/ Xxxxxxx Xxxxx Xxxxxxx
XXXX XXXXXXX by XXXXXXX ) ...........................
XXXXX XXXXXXX its Attorney under a ) (Signature)
Power of Attorney dated and )
who declares that he has not received any )
notice of the revocation of such Power of )
Attorney in the presence of: )
/s/ Xxxxxxx Xxxxxx
.....................................................
(Signature of Witness)
Xxxxxxx Xxxxxx
.....................................................
(Name of Witness in Full)
SIGNED for and on behalf of ) /s/ Xxxxx Xxxxxxxx
XXXX INTERNATIONAL SERVICES ) .........................
LIMITED by its ) (Signature)
Attorney under a Power of Attorney dated )
and who declares that he has not )
received any notice of the revocation of )
such Power of Attorney in the presence of: )
/s/ Xxxx Xxxxxxxx
.....................................................
(Signature of Witness)
Xxxx Xxxxxxxx
.....................................................
(Name of Witness in Full)
Schedule 1
(Sale Shares)
Number and type of
Vendor Sale Shares
------ ----------
1. Xxxxxxx Xxxxx Xxxxxxx 2 full paid ordinary shares
of $1.00 each
2. Xxxxxxx Xxxx Xxxxxxx 2 full paid ordinary shares
of $1.00 each
4 ordinary shares
Schedule 2
(Warranties)
1. Share capital and Vendors' qualifications
(a) The Sale Shares comprise 50% of the issued ordinary share capital
of the Company.
(b) The Sale Shares represent the only proprietary interest of the
Vendors in the Company and apart from the Vendors Receivables
(which are to be assigned to the Purchaser in accordance with the
terms of this Agreement), the Vendors will on Completion have no
other interest whatsoever in or with respect to the Company.
(c) The Sale Shares are fully paid up and have been duly issued and
allotted.
(d) No person has any right or option to subscribe for or to otherwise
acquire any further shares in the Company.
(e) There are no outstanding options, contracts, calls, first
refusals, commitments, rights or demands of any kind relating to
the issued or unissued capital of the Company.
(f) The Company is not under any obligation to allot any shares to any
person or persons, or to otherwise alter the structure of any part
of their respective unissued share capital, and no option exists
(nor is the Company under any obligation to give any option) over
any part of their respective unissued share capital, nor has the
Company offered to do any of the foregoing.
(g) The Vendors are the registered holders and beneficial owners of
the Sale Shares which are free of any Encumbrance, and the Vendors
have complete and unrestricted power and right to sell, assign and
transfer the same to the Purchaser.
(h) The Vendors have the power to enter into and perform this
Agreement and have obtained all necessary consents to enable them
to do so.
(i) There is no restriction on the sale or transfer of the Sale Shares
to the Purchaser (whether contained in the Memorandum and Articles
of Association of the Company or otherwise) except for the consent
of the directors of the Company to the registration of the
transfers of the Sale Shares.
(j) The entry into and performance of this Agreement by the Vendors
does not constitute a breach of any obligation (including any
statutory, contractual or fiduciary obligation), or default under
any agreement or undertaking, by which the Vendors are bound.
(k) None of the Vendors have gone into bankruptcy.
2. The Company
(a) The Company:
(i) is accurately described in Recital A;
(ii) is duly incorporated, has full corporate power to own its
assets and Business and to carry on its Business as now
conducted; and
(iii) has done everything necessary to do business lawfully in
all jurisdictions in which its Business is carried on.
(b) The unissued share capital of the Company is free of any
Encumbrance.
(c) The Company has no subsidiaries within the meaning of the
Corporations Law.
(d) The Company has not gone into liquidation or passed any resolution
for winding up, no petition for winding up has been presented
against the Company and no receiver or receiver and manager of the
undertaking or assets (or any part thereof) of the Company has
been appointed or is threatened or expected to be appointed nor
are there any unsatisfied judgments or arbitral awards outstanding
against the Company.
3. The Last Accounts
The Last Accounts:
(a) disclose a true and fair view of the state of the affairs,
financial position and assets and liabilities of the Company as at
the Last Accounts Balance Date, and the income, expenses and
results of the operations of the Company for the year ended on
that date;
(b) include in their respective balance sheets all such reserves and
provisions for Tax as are adequate to cover all Tax liabilities
(whether or not assessed and whether actual, contingent, deferred
or otherwise) of the Company up to the Last Accounts Balance Date;
(c) contain adequate provisions in respect of all other liabilities
(whether actual, contingent, deferred or otherwise) of the Company
as at the Last Accounts Balance Date and proper disclosure (in
note form) of any contingent or other liabilities not included or
provided therein; and
(d) were prepared:
(i) in accordance with the Corporations Law and Australian
Accounting Standards applied on a consistent basis;
(ii) in the manner described in the notes to them and the
accompanying auditor's opinion; and
(iii) on a consistent basis with the audited accounts for the
prior financial year.
4. Period Since Last Accounts Balance Date
(a) There has not since the Last Accounts Balance Date been:
(i) any material adverse change to the financial condition of
or in the trading operations of the Company from that shown
in the Last Accounts;
(ii) any material change in the nature, amount, valuation or
basis of valuation of the assets or in the nature or amount
of any liabilities of the Company.
(b) There has not arisen since the Last Accounts Balance Date any
item, transaction or event of a material or unusual nature likely
to affect substantially the operations or results or state of
affairs of the Company.
(c) Since the Last Accounts Balance Date the Company has carried on
its business in the ordinary regular and normal course, no amount
has been acquired or disposed of, no liability has been incurred
except in the ordinary course of business, and no contingent
liability has been incurred by the Company.
(d) None of the debts shown in the Last Accounts has been released or
settled for an amount less than that reflected for such debts in
the Last Accounts, and to the best of the Vendors' knowledge and
belief all such debts owing to and accounts receivable of the
Company are now and on Completion will be good and collectable in
the amount disclosed in the Last Accounts (other than for any
allowance in the Last Accounts in respect of doubtful debts). To
the best of the knowledge and belief of the Vendors all such
accounts receivable and debts are not and will not be subject to
any counterclaim or set-off other than in respect of money payable
by persons also shown as creditors of the Company in the amounts
shown in the Last Accounts (as such amounts may have been affected
by transactions in the ordinary course of business since the Last
Accounts Balance Date).
(e) All dividends declared by the Company have been properly and
validly declared and no dividends have been declared by the
Company since the Last Accounts Balance Date.
5. Commitments
(a) To the best of the Vendors knowledge and belief every contract,
instrument or other commitment to which the Company is a party
(including all Business Contracts and Leases) is valid and binding
according to its terms and, without prejudice to any other
warranty, no party thereto is in material default under the terms
thereof.
(b) The Company is not a party to any contract or commitment entered
into which:
(i) is outside the ordinary course of business;
(ii) even if entered into in the ordinary course of business,
involves or is likely to involve obligations or liabilities
which by reason of their magnitude or nature ought
reasonably to be made known to an intending purchaser of
the Sale Shares;
(iii) is not at arm's length or not on normal commercial terms;
or
(iv) is long term, substantial and/or onerous.
(c) The Company is not directly or indirectly obliged in any way to
guarantee, assume or provide funds to satisfy any obligation of
any person, or has given a letter of comfort to any person.
(d) To the best of the Vendors knowledge and belief no offer, tender,
quotation or the like given or made by the Company is capable of
giving rise to a contract merely by any unilateral act of a third
party, other than in the ordinary course of business.
(e) To the best of the Vendors knowledge and belief the Company is not
a party to any agreement or arrangement under the terms of which
any other party by reason of any change in the beneficial
ownership of the Sale Shares or in the management or control of
the Company becomes entitled to terminate such agreement or
arrangement earlier than it would but for such change have been
liable to be terminated, or require the adoption of terms less
favourable to the relevant member of the Company than those
subsisting in the absence of the change.
(f) The transfer of the Sale Shares in accordance with this Agreement
does not and will not constitute a breach of any obligation
(including any statutory, contractual or fiduciary obligation), or
default under any agreement or undertaking, by which the Company
is bound.
(g) No customer or supplier of the Company has ceased or has indicated
in writing an intention to cease or reduce trading with the
Company and the Vendors have no grounds to believe or suspect that
after the date hereof or as a result of the acquisition of the
Company by the Purchaser:
(i) suppliers to the Company will cease supplying or may reduce
supplies to the Company; or
(ii) customers or distributors of the Company will terminate any
contracts, offers or benefits in favour of any members of
the Company, or cease or reduce trading with the Company.
(h) There are no outstanding commitments of the Company for capital
expenditure other than replacements and normal purchases of plant
and equipment in the ordinary course of business.
(i) There are no foreign exchange contracts binding the Company, and
there are no foreign exchange exposures of the Company.
(j) The Company is not a party to any agreement in terms of which it
is or will be bound to share its profits or pay any royalties
(except to the extent to which it may in the ordinary course of
business calculate and pay commissions to salesmen).
(k) The Specified Business Contracts comprise all of the material
Business Contracts as at the date of this Agreement.
(l) As at Completion, the Company will not be a party to any agreement
or commitment entered into with the Vendors or any Related Entity
of the Vendors.
6. Business
(a) The Company is the legal and beneficial owner of all of its
assets, which are free of any Encumbrance.
(b) To the best of the Vendors knowledge and belief the Company holds
all statutory licenses, consents, authorizations and permits
necessary for the proper carrying on of its Business and the use
of the Premises and they are each valid and subsisting. There is
no fact, matter or circumstance known to the Vendors that might
prejudice the continuance or renewal of those licenses, consents,
authorizations or permits.
(c) To the best of the Vendors knowledge and belief the Business of
the Company is conducted in accordance with all applicable laws,
does not contravene any laws and no allegation of any
contravention of any laws by the Company is know to the Vendors.
(d) The Company has complied in all material respects with:
(i) its Memorandum and Articles of Association;
(ii) any instrument to which it is a party or by which it is
bound, including all Business Contracts and Leases; and
(iii) to the best of the Vendors knowledge and belief all legal
requirements and all judgments, orders, injunctions and
requirements of any Court, commission, board or other
governmental, semi-governmental, municipal or
administrative body or competent authority,
and there has not occurred any event which, with the effluxion of
time or giving of notice, would constitute a material breach or
default thereof.
(e) The Company:
(i) will not at Completion hold or have agreed to acquire or
take up any shares in the capital of any company, apart
from investments in the ordinary course of business;
(ii) is not a member of any partnership, joint venture or
unincorporated association;
(iii) is not a trustee or manager of any trust estate or fund;
and
(iv) does not have a permanent establishment (as that expression
is defined in the Tax Act) outside Australia other than in
Auckland, New Zealand.
(f) To the best of the Vendors knowledge and belief there are in force
no powers of attorney given by the Company in favour of any
person.
(g) All accounts, books, ledgers, financial and other records of
whatsoever kind of the Company:
(i) have been fully and properly maintained and contain due
records of all matters required to be entered therein by
any relevant legislation and there has not been removed
therefrom any material records or information;
(ii) do not contain or reflect any material inaccuracies or
discrepancies; and
(iii) give and reflect a true and fair view of the trading
transactions, or the financial and contractual position of
the Company and of its assets and liabilities; and
(iv) are in the possession of the Company.
(h) To the best of the Vendors knowledge and belief all plant,
equipment and vehicles owned by the Company are in good order and
repair except for fair wear and tear.
(i) To the best of the Vendors knowledge and belief all stamp duties
and other taxes for which the Company is primarily liable in
respect of every deed, agreement or other document to which the
Company is or has been a party have been duly paid or adequately
provided for and no such deed, agreement or other document the
time for stamping of which has expired is unstamped or
insufficiently stamped.
7. Premises
(a) Schedule 4 accurately describes all the Premises owned, leased or
occupied by the Company.
(b) The Company has exclusive occupation of the Premises free of any
Encumbrance or third party right.
(c) The Company has properly performed and observed all material
covenants affecting the Premises.
(d) True copies of each of the Leases have been provided to the
Purchaser prior to the date of this Agreement, and there are no
other terms of those Leases other than as set out therein.
(e) The Vendors have disclosed to the Purchaser prior to the date of
this Agreement full and correct details of any commitments
(whether legally binding or otherwise) of the Company to take
leases of premises.
(f) There is no current material dispute relating to the Premises or
their use.
(g) No notice has been received by the Company from any statutory
legal or public authority requiring any work to be done or money
expended on any of the Premises nor has the Company received any
notice (or is aware of any pending notice) of proposed resumption
compulsory acquisition or any other matter affecting any of the
Premises.
8. Environmental compliance
(a) To the best of the Vendors knowledge and belief, the Premises are
free of all environmental contamination, including without
limitation, any patent or latent environmental contamination of
the atmosphere, air, soil, sub-soil, ground water or surface
waters within or adjacent to such premises.
(b) To the best of the Vendors knowledge and belief, no hazardous
materials and no other materials intended for use or generated in
the Business have been or are used, stored, treated or otherwise
disposed of by the Company in violation of applicable laws and
regulations.
(c) To the best of the Vendors knowledge and belief, all hazardous
materials removed or emitted from the Premises were and are
documented, transported and disposed of in compliance with all
applicable laws and regulations.
(d) To the best of the Vendors knowledge and belief, no materials,
including without limitation, effluence leachate, emissions or
hazardous materials generated on or emitted from any of the
Premises have caused or will cause, in whole or in part, any
environmental contamination.
(e) There is no agreement or consent order to which the Company is a
party in relation to any environmental matter.
(f) There have been no orders issued which have not been fully
complied with and cleared, investigations conducted or other
proceedings taken or threatened by any governmental body or other
regulatory authority or threatened in writing by any person under
any applicable environmental laws and regulations with respect to
the Business.
(g) The Company has not received any written communications which have
not been fully complied with and cleared concerning alleged
violations of environmental legislation or claims with respect to
environmental matters with respect to the Business.
(h) To the best of the Vendors knowledge and belief, all permits
required under any applicable environmental laws and regulations
to own and operate the Business have been obtained by the Company
and are in good standing.
(i) The conduct of the Business does not constitute a nuisance, nor
has any claim been made in respect of the use or operation of the
Premises by any adjoining landowner or other party.
9. Intellectual Property
(a) Part A of Schedule 5 accurately describes:
(i) all registered and unregistered business names and trade
marks;
(ii) all registered patents and designs; and
(iii) all applications for registration of trade marks, patents
and designs,
which are owned or used at any time by the Company in connection
with its Business.
(b) The Company:
(i) owns all right, title and interest in and to the
Intellectual Property Rights;
(ii) has not licensed any of the Intellectual Property Rights;
and
(iii) has not assigned or disposed of any right, title or
interest in the Intellectual Property Rights.
(c) The Intellectual Property Rights are:
(i) legally and beneficially vested in the Company;
(ii) not being presently infringed, nor are they the subject of
any dispute, litigation or expungement application (whether
threatened or otherwise); and
(iii) not subject to any license or authority in favour of any
third party,
and the exercise of them does not infringe the rights of any other
parties.
(d) To the best of the Vendors knowledge and belief, there has not
been any misuse or unauthorized disclosure of any Confidential
Information.
(e) Part B of Schedule 5 accurately describes the Intellectual
Property Licenses.
(f) To the best of the Vendors knowledge and belief, each Intellectual
Property License is valid, binding and enforceable in accordance
with its terms. The Company has complied at all times with the
terms of the Intellectual Property Licenses, and no licenser under
an Intellectual Property License has a right to terminate.
(g) The Vendors are not aware of any use by any other person of any
business name or trade xxxx owned or used by the Company.
10. Litigation
The Company is not engaged in any prosecution, litigation or arbitration
proceedings. There are no such proceedings pending or threatened by or
against the Company, nor so far as the Vendors are aware are there any
facts or disputes which might give rise to any such proceedings.
11. Insurance
(a) The assets of the Company are adequately insured in respect of the
risks to which they are subject (including loss or damage by fire,
theft, storm and tempest) in such amounts as accord with sound
business principles and such insurances will not expire prior to
the Completion Date.
(b) The Company is adequately insured against public liability,
product liability, loss of profits and all other risks in such
amounts as accord with sound business principles, and such
insurances will not expire prior to the Completion Date.
(c) The Company is adequately insured against workers' compensation
liability.
12. Taxation
(a) The Company has duly complied with all obligations imposed by and
provisions of the Tax Act.
(b) The Company has duly complied with all obligations imposed under
the Tax Act in relation to the quotation of tax file numbers by
employees of the Company and the deduction by the Company of tax
installments where required under the Tax Act, including the
guidelines under applicable privacy legislation.
(c) The Company has filed all returns by the time required by law
under the Tax Act for the income year and franking year, together
with any applicable certificates, notices, declarations and any
other lodgements whether mandatory or otherwise in the interests
of the Company; all such returns were correct and on a proper
basis, and no dispute exists in relation to any of them, nor so
far as the Vendors are aware are there any facts or circumstances
which might give rise thereto.
(d) All Tax under the Tax Act which has been assessed or imposed or
which is deemed to have been assessed or imposed or which is
lawfully assessable or payable by or upon the Company has been
duly assessed and paid.
(e) To the best of the Vendors knowledge and belief, the Company has
not made a false or misleading statement to a taxation officer
within the meaning of the Tax Act in relation to any income or
franking year and there is no unresolved dispute with any Revenue
Authority under the Tax Act.
(f) To the best of the Vendors knowledge and belief, all necessary
information, declarations, certificates, notices, returns and any
other required lodgements in respect of Taxes, other than Tax
under the Tax Act, have been properly and duly submitted by the
Company to all relevant Revenue Authorities in respect of Tax for
all relevant periods up to the date of this Agreement and will
continue to be submitted until the Completion Date. The Company
has not made a false or misleading statement in relation thereto
and there is no unresolved dispute with any Revenue Authority, nor
are there any facts or circumstances which might give rise
thereto.
(g) All Taxes, other than Tax under the Tax Act, which have been
assessed or imposed or which are deemed to have been assessed or
imposed or which are lawfully assessable or payable by or upon the
Company and which were due and payable have been paid or remitted
to the relevant Revenue Authority by the Company.
(h) The Company has not in the past 5 years paid or become liable to
pay, nor so far as the Vendors are aware are there any
circumstances by reason of which is likely to become liable to
pay, any penalty, fine or interest under the Tax Act or with
respect to any Tax under that or other legislation.
(i) The Company has not in the past 5 years suffered any
investigation, audit, visit or written request for the production
of information by any Revenue Authority and the Company has been
notified of or is aware of any proposed such investigation, audit,
visit or request.
(j) In relation to the Company, so far as the Vendors are aware all
credits and debits to any franking account maintained by the
Company have been duly and properly recorded in accordance with
the Tax Act giving rise to a franking account balance in
conformity with the Tax Act, and there are no existing or pending
statutory franking debits in relation to dividend streaming
arrangements, on-market share buy-back purchases or otherwise.
(k) The Company has not lodged an application for the determination of
an estimated franking debit and no notice has been received or so
far as the Vendors are aware is expected at the date of this
Agreement that would give rise to a franking debit based on an
estimated debit determination under the Tax Act.
(l) To the best of the Vendors knowledge and belief, the Company has
not been a party to or has participated in any non-arm's length
transaction that could be affected by the exercise of
discretionary powers of the relevant Revenue Authority, including
(without limiting the generality thereof) transactions relating to
trading stock, plant and equipment, securities or assets subject
to the capital gains tax provisions of the Tax Act.
(m) To the best of the Vendors knowledge and belief, the Company has
not been a party to or has participated in transactions or
arrangements that could give rise to the exercise by the Relevant
Authority of its powers under the Tax Act in relation to losses
and outgoings incurred under tax avoidance schemes, or in relation
to international agreements or schemes to reduce income tax, or
any other discretionary powers of the relevant Revenue Authority
under the Tax Act by virtue of which transactions or arrangements
entered into by the Company may be re-opened, revised or given an
interpretation different from that adopted by the Company.
13. Filings
The Company has to the best of the Vendors knowledge and belief, filed
all annual returns, resolutions, particulars, other forms, returns and
documents as and where required to be filed or registered under the
Corporations Law or its predecessor, the Companies Code, such returns and
forms were accurate in all material respects, and the Company is not
liable to be struck off the register of companies.
14. Staff and Superannuation
(a) The Vendors have disclosed to the Purchaser in writing prior to
the date of this Agreement full and correct details of:
(i) the employees of the Company and the employment conditions
of all employees of the Company; and
(ii) all contracts of service or for services and letters of
appointment in respect of any employees of, or consultants
to, the Company which cannot be terminated on less than 2
months' notice.
(b) To the best of the Vendors knowledge and belief, each of the
contracts entered into by the Company with employees or
consultants is enforceable against the parties to it and there is
no party in breach of, or in default under, any such contract.
(c) Since the Last Accounts Balance Date, the Company has not paid any
bonuses or increases in salary (other than normal increases to
employees in the ordinary course of business or as imposed by
industrial awards) or has otherwise altered the remuneration,
emoluments or benefits or other conditions of employment of any
officers or employees of the Company.
(d) Since the Last Accounts Balance Date, the Company has not paid any
remuneration or fees to its directors other than normal
remuneration to executive directors.
(e) To the best of the Vendors knowledge and belief, the Company has
complied with all applicable industrial awards and agreements and
all statutory requirements, in respect of their employees.
(f) The Company has complied, and until the Completion Date will
continue to comply, with all of its Superannuation Commitments.
(g) To the best of the Vendors knowledge and belief, the Company is
not under any present legal liability or voluntary commitment
(apart from a Superannuation Commitment) to pay to any person any
pension, superannuation allowance, retirement gratuity or like
benefit (other than legal liability to pay long service leave or
annual holiday pay) or any damages or compensation for loss of
office or employment or for unfair dismissal.
(h) The Company has duly made all necessary payments on behalf of
employees and other persons in order to avoid incurring any
liability to pay the superannuation guarantee charge under the
Superannuation Guarantee Charge Xxx 0000.
Schedule 3
(Specified Business Contracts)
1. Facility Letter dated 12th November, 1993 (and amendments) and Facility
Agreement dated 7th December, 1993 with State Street Finance Limited.
2. Trade Xxxx User Agreement dated 15th November, 1993 between Saucony S.P.
Pty Limited and Hyde Athletic Industries Inc.
3. Agreements as to trading terms with those retailers specified in the
document annexed hereto marked "A".
4. Contract Agreement dated 6th November, 1997 with Xxxx Xxxxx.
5. Employment Contract dated 7th May, 1997 with Xxxxxx Xxxxxx.
6. Agreement with Mt. Smart Business Centre Ltd.
7. Undated Distribution Agreement between Hi-Tec Sports International Ltd
and Saucony S.P. Pty Limited.
8. Undated Trade Xxxx License between Hi-Tec Sports International Ltd and
Saucony S.P. Pty Limited.
9. Distribution Agreement dated 14 September 1995 with Hi-Tec Sports
International Ltd.
10. Contracts with Athletes as specified in document annexed hereto and
marked "B".
11. Lease in respect of the premises known as 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxx (0704732).
Schedule 4
(Premises)
Part A - Owned Premises
Nil
Part B - Leased Premises
00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx
Premises in New Zealand the subject of the Agreement with Mt Smart Business
Centre Ltd.
Schedule 5
(Intellectual Property)
Part A - Business Names, Brand Names, Trade Marks and Patents
Those Trade Marks the subject of Trade Xxxx User Agreement dated 15th November,
1993 between Saucony S.P. Pty Limited and Hyde Athletic Industries Inc.
Part B - Intellectual Property Licenses
Those Trade Marks the subject of the Trade Xxxx License granted by Hi-Tec Sports
International Ltd in favour of Saucony S.P. Pty Limited (undated).
TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 4
2. CONDITIONS PRECEDENT 5
2.1 Foreign Acquisitions and Takeovers Act 5
2.2 Interpretation 5
2.3 Notice 6
2.4 Co-operation of parties 6
2.5 Duties of parties 6
2.6 No approval 7
3. SALE OF SALE SHARES AND ASSIGNMENT OF VENDORS RECEIVABLES 7
3.1 Sale of Sale Shares 7
3.2 Assignment of Vendors Receivables 7
3.3 Interdependence 7
4. PURCHASE PRICE AND PAYMENTS 7
4.1 Purchase Price 7
4.2 Payment of the Purchase Price 7
5. PERIOD BEFORE COMPLETION 8
5.1 Vendors' obligations on signing 8
5.2 Period before Completion 8
6. COMPLETION 9
6.1 Completion place and date 9
6.2 Vendors' obligations on Completion 9
6.3 Purchaser's obligations on Completion 9
6.4 Title 10
6.5 Interdependence 10
7. WARRANTIES 10
7.1 Vendors' warranties 10
7.2 Exemption 10
8. BUSINESS CONTRACTS 10
8.1 Disclosure of Business Contracts 10
8.2 General Business Contracts 10
9. RESTRAINT OF TRADE 10
9.1 Restraint of trade generally 10
9.2 Severance 11
9.3 Exceptions 11
9.4 Bite Inventory 12
10. GENERAL 12
10.1 Further assurance 12
10.2 Governing law 12
10.3 Waiver 12
10.4 Set-off 12
10.5 Notices 12
10.6 Public announcements and confidentiality 13
10.7 Counterparts 14
10.8 Modification 14
10.9 Stamp duties 14
10.10 Legal costs 14
10.11 Merger 14
10.12 Survival of certain provisions 14
10.13 Entire agreement 15
10.14 Assignment 15
Schedule 1 (Sale Shares) 16
Schedule 2 (Warranties) 17
Schedule 3 (Specified Business Contracts 28
Schedule 4 (Premises) 29
Schedule 5 (Intellectual Property) 30
