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AGREEMENT FOR SALE
AND PURCHASE OF SHARES
Parties
XX XXXXXX and RH AND XX XXXXXX
FAMILY TRUST
XXXXXXX INVESTMENTS (N.Z.) LIMITED
Relating to Industrial Communications Service
Limited
LOWNDES JORDAN
BARRISTERS & SOLICITORS
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AGREEMENT dated _______________________ 1997
PARTIES
1. The persons whose names addresses and descriptions are set out in
Schedule 2 (jointly and severally referred to as the Vendors)
2. XXXXXXX INVESTMENTS (N.Z.) LIMITED at Auckland (Purchaser), a subsidiary
of Xxxxxxx Investments Limited a company incorporated under the laws of
Alberta, Canada (BKI)
INTRODUCTION
A. The Vendors are the holders of the Shares together with all rights
attaching to the Shares.
B. The Vendors has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase from the Vendors all the Shares for the Consideration
and upon the terms and conditions contained in this Agreement.
TERMS
1. Interpretation
1.1 Defined Terms: In this Agreement the following terms shall have the
meanings specified:
Accounts each and every part of the financial statements of
the Company being the full balance sheet and profit
and loss accounts for the financial years to 31
March 1996 together with trading figures for the
period ended 31 January 1997 copies of which have
been provided to the Purchaser.
Associated Person has the meaning given in section OD7(l) of the
Income Tax Xxx 0000.
Business Day a day (other than a Saturday or Sunday) on which
registered banks are open for business.
Business Records all books of account, accounts, records, files,
data, databases, certificates or other evidence of
title to assets and information howsoever recorded
or stored relating to or required for the business
of the Company or pertaining to its affairs.
Cashflow shall have the meaning ascribed to that term in the
Escrow Agreement.
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Charge includes option, right to acquire, lien, pledge,
mortgage, assignment, charge, security interest,
bailment, or encumbrance or adverse interest of any
nature whether legal or equitable and no matter how
arising.
Company Industrial Communications Service Limited, a company
incorporated under the Companies Xxx 0000 as a
private company limited by shares and reregistered
under the Companies Xxx 0000 under Xx. XX 000000
having its registered office at Auckland and having
its capital divided into 200,000 ordinary shares
each of which rank pari passu in all respects and
which have been issued and allotted and are paid up.
Completion completion by the parties of the sale and purchase
of the Shares as provided in clause 5.
Completion Date the actual date of Completion being 31 March 1997 or
7 days after the conditions referred to in clause 9
have been satisfied or waived by the party entitled
to waive the same (whichever is the later) or such
other date as may be agreed upon by the parties.
Consideration the sum of $2,084,998 subject to adjustment as
provided in clause 3.3.
Constitution the Memorandum and Articles of Association of the
Company or its Constitution, as the case may be.
Costs includes any and all costs (on a solicitor and own
client basis), expenses, damages, penalties,
interest, compensation, and awards.
Disclosure Letter the letter of disclosure referred to as such, signed
by the Vendors and dated and delivered to the
Purchaser the same date as this Agreement.
Escrow Agreement the Escrow Agreement in the form annexed as Annexure
B and entitled Form C to be entered into by BKI, the
Vendors and the Trustee.
Exchange Rate $NZl.00 = $CAD0.9295.
GST Act the Goods and Services Tax Xxx 0000.
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GST Goods and Services Tax levied under the GST Act.
Intellectual
Property includes confidential information, trade secrets,
drawings, designs, techniques, programmes,
processes, logos, copyrights, trade or service
marks, patents, registered designs, and other
information and rights capable of being protected
under New Zealand or other laws relating to
intellectual property no matter how recorded or
stored and any applications for same.
Interest Rate the cost of the funds rate for the Purchaser
provided that it shall not be less than the ANZ
Index Lending Rate plus 2% and not more than 14.5%.
Last Accounting Date 31 March 1996.
Penalty Rate the ANZ Index Lending Rate plus 8%.
Premises the land and buildings at Xxxx 0, 000 Xxxxxx Xxxxxx,
Xxxxxxx together with all other land and buildings
owned, occupied or used by the Company.
Proceedings includes proceedings, claims, demands, actions,
conferences, mediations, conciliations, compromises,
arbitrations, hearings or appeals arising out of,
preliminary to or in connection with any dispute or
alleged dispute.
Related Company a related company as defined in section 158 of the
Companies Xxx 0000 or section 5 to 8 of the
Companies Xxx 0000, as the case may be.
RH and XX Xxxxxx the trust created by Xxxxx Xxxxx Xxxxxx and Xxxxxx
Family Trust Xxxxxxxx Xxxxxx by Deed dated 21 April 1995.
Shares those shares in the capital of the Company being
acquired by the Purchaser pursuant to this Agreement
as set out in Schedule 1.
Shareholders' Loans the current and term advances to the Company
specified in Schedule 1.
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Statutory Books the Company's Constitution, and its Certificate of
Incorporation, Directors' and Members' minute book,
Register of Members, Register of Directors and
Secretaries, Interests Register, Register of Charges
and Seal Register (if any).
Strike Price in respect of the BKI shares to be issued pursuant
to this Agreement is $CAD1.65 per share.
Subsidiary (a) a subsidiary as defined in section 158 of the
Companies Xxx 0000 or sections 5 to 8 of the
Companies Xxx 0000; or
(b) an "in-substance subsidiary" as defined in
Statement of Standard Accounting Practice No 8
issued by the New Zealand Society of
Accountants.
Taxation all forms of taxation (including without limitation
capital gains tax, income tax, surtax, estate duty,
stamp duty, rates, GST, PAYE, withholding tax,
provisional tax, duties, customs and other import or
export duties and all other statutory, fiscal,
central or local government or municipal
impositions, duties and levies) and all
re-assessments, penalties, charges, costs and
interest relating to such taxation for
non-compliance or otherwise.
Trustee the trustee approved by the Alberta Stock Exchange
to hold BKI shares pursuant to the Escrow Agreement.
Warranties the representations, warranties, and undertakings of
the Vendors set out in Schedule 2.
1.2 General Interpretation: In the interpretation of this Agreement, unless
the context otherwise requires:
1.2.1 References to the parties include their respective executors,
administrators, successors and permitted assigns;
1.2.2 References to persons include individuals, partnerships, firms,
associations, corporations and unincorporated bodies of persons,
government or semi-government or local body or municipal bodies,
and agencies or political subdivisions of them in any case whether
having separate legal personality or not;
1.2.3 Words in the singular shall include the plural and vice versa;
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1.2.4 Words importing one gender shall include the other genders;
1.2.5 Any obligation not to do anything includes an obligation not to
suffer, permit or cause that thing to be done;
1.2.6 Headings have been inserted for convenience only and shall not
affect the construction of this Agreement;
1.2.7 Reference to a statute includes all statutes amending,
consolidating or replacing the statute referred to and includes
all subsidiary or delegated legislation or exercises of authority
under such statute or legislation;
1.2.8 References to clauses, schedules and annexures shall be construed
as references to the same in this Agreement;
1.2.9 References to money are references to New Zealand currency.
1.3 Joint and Several: The covenants herein expressed or implied shall bind
all persons executing this Agreement and any two or greater number of
them jointly and each of them severally.
1.4 Time of the Essence: Time shall be of the essence of this Agreement both
as to dates and periods.
1.5 Precedence of Documents: If there is any conflict between the provisions
of this Agreement and the Escrow Agreement, the provisions of this
Agreement shall prevail.
2. Agreement for Sale and Purchase
2.1 Sale and Purchase: The Vendors agree to sell and the Purchaser agrees to
purchase the Shares and the Shareholders' Loans for the Consideration.
3. Consideration and Payment
3.1 Satisfaction of Consideration: The Consideration shall be paid or
satisfied by the Purchaser as follows:
3.1.1 Deposit: By payment of a deposit of $387,998 in cash on the
Completion Date;
3.1.2 Share Exchange: The balance of $1,697,000 (subject to adjustment
as provided in clause 3.3) by way of the issue and allotment to
the Vendors free from all Charges in the proportions referred to
in the 3rd column of Schedule 2 of 955,977 fully paid ordinary
shares in the capital of BKI (based on the Strike Price converted
to $NZ at the Exchange Rate) ranking in all respects pari passu
with the existing ordinary shares in the capital of BKI as
provided in clauses 3.2 and 3.3.
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3.2 Issue of Shares: The Purchaser shall procure the issue of BKI shares
pursuant to clause 3.1.2 on the following basis:
3.2.1 195,477 BKI shares shall be issued on the Completion Date by BKI
to the Trustee to be held in escrow pursuant to the Escrow
Agreement but not subject to earn out conditions and released to
the Vendors on 31 March 1998.
3.2.2 760,500 BKI shares (Earnout Shares) shall be issued on the
Completion Date to the Trustee to be held in escrow pursuant to
the Escrow Agreement and subject to the earn out and escrow
conditions specified in clause 3.3 and in the Escrow Agreement, to
be released to the Vendors as provided in clause 3.2.3.
3.2.3 The shares referred to in clause 3.2.2 shall be released in 3
tranches on 31 March 1998 (a maximum of 123,182 shares), 31 March
1999 (a maximum of 318,659 shares) and 31 March 2000 (a maximum of
318,659 shares).
3.3 Escrow and Earn Out Provisions: The BKI shares referred to in clause 3.2
shall be held by the Trustee subject to the following conditions:
3.3.1 The Earnout Shares shall only be released to the Vendors if the
Company produces sufficient cumulative Cashflow in the financial
years ending on 31 March 1998 and 31 March 1999 (Earnout Period).
3.3.2 For the purposes of this clause 3.3 the parties anticipate that
the Company will produce cumulative Cashflow of not less than $NZ
1,350,000 (Earn Out Cashflow) in the Earnout Period. It is agreed
that the Consideration shall be reduced on the basis of a $NZ 1.00
reduction for each $NZ 1.00 by which the cumulative Cashflow of
the Company falls short of the Earn Out Cashflow over the Earnout
Period.
3.3.3 Subject to clause 3.2.3 the BKI shares to be released on each of
the dates specified in that clause shall not exceeding in value
(based on the Strike Price converted to $NZ at the Exchange rate)
the cumulative Cashflow of the Company during the Earnout Period
or the portion of the Earnout Period which has elapsed by such
date.
3.3.4 Final Adjustment of Acquisition Price: To the extent that the Earn
Out Cashflow is not achieved in the Earnout Period then the
Consideration shall be reduced on the basis provided in clause
3.3.2 and the corresponding number of BKI shares held in escrow
shall be cancelled.
3.4 Any dividends declared in respect of BKI shares held in escrow pursuant
to clause 3.2 or 3.3 shall be held in trust by the Trustee. Such
dividends declared in respect of shares which are released to the Vendors
shall be paid to the Vendors when the shares are released. Any dividends
held in trust by the Trustee in respect of BKI shares which are cancelled
will be forfeited to BKI on the date of cancellation.
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3.5 Apportioning of Consideration: The Consideration shall be apportioned
amongst the Vendors (if more than one) as nearly as may be in proportion
to their respective holdings of the Shares however the Purchaser shall
have no responsibility for such apportionment and the Vendors's
solicitors' receipt shall be sufficient discharge of the Purchaser's
obligations in respect of satisfaction of the Consideration.
3.6 Interest: The payment provided in clause 3.1.2 shall bear interest at the
Interest Rate which shall be paid in full by the Purchaser to the Vendor
on 31 March 1998. If either of the payments provided in clauses 3.1.1 or
3.1.2 are not paid on the due date for payment they shall bear interest
at the Penalty Rate from the due date for payment to the date of actual
payment.
4. Vendors' Obligations on or before Completion
4.1 On or before Completion the Vendors shall:
4.1.1 Release of Liability to Associated Persons: Except in respect of
the Shareholder Loans, procure that the Company is released
unconditionally from all liability and obligations whatsoever
(whether actual or contingent) to the Vendors or any Associated
Person of the Vendors. If such release is not or cannot properly
be provided on or before Completion then the Vendors will
indemnify the Company and the Purchaser from and against all Costs
and Proceedings in respect of such liability and obligations
provided that liabilities and obligations incurred in respect of
normal trade purchases or transactions on usual commercial terms
for payment and performance shall not be required to be so
released;
4.1.2 Access to Premises and Business: Ensure that the Purchaser and its
representatives have full access to the Premises, the Statutory
Books and the Business Records from the date of this Agreement and
will be given promptly all information they may reasonably require
concerning the business or affairs of the Company;
4.1.3 Filing of Satisfactions of Charges: File memoranda of satisfaction
with the Registrar of Companies, the High Court Chattels Register
or the Land Transfer Office or the Motor Vehicles Security
Register (as appropriate) in respect of all Charges registered
against the property of the Company where those Charges have been
released;
4.1.4 Service Agreement: Procure the execution by the Company of an
employment contract for a term of 3 years with Xxxxx Xxxxxx as
General Manager of the Company in the form annexed as Annexure A.
4.1.5 Personal Assets: Procure that all motor vehicles (Toyota Starlet
and two Peugeots) are removed from the Company asset register by
the Completion Date.
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4.1.6 Building Improvements: Procure that all building assets of the
Company which appear in the Company asset register are vested in
the lessor of the Premises by the Completion Date.
5. Completion
5.1 Completion shall take place on the Completion Date at the offices of the
Vendors's solicitors Xxxxx Xxxxxx and Stainton at 2.15 p.m. or at such
other time or place as the parties shall agree at which time the
Purchaser shall be entitled to the possession of the business conducted
by the Company and the Vendors will hand to the Purchaser:
5.1.1 Share Transfers: Transfers of the Shares to the Purchaser and/or
its nominee duly executed by the Vendors in registrable form;
5.1.2 Share Certificates: The share certificates (if any) for the Shares
or if none have been issued a statutory declaration by an officer
of the Company to such effect;
5.1.3 Shareholders' Loans: Absolute assignments in favour of the
Purchaser of the Shareholders' Loans;
5.1.4 Pre-emptive Rights Waivers: A waiver signed by all the
shareholders of the Company whereby they waive all rights of
pre-emption conferred on them by the Constitution or otherwise in
respect of the transfer of all or any of the Shares;
5.1.5 Directors' Resolutions: Evidence of the passing of effective
resolutions of the Directors of the Company approving the transfer
of the Shares and directing that upon presentation of the same
duly executed the name of the Purchaser and/or its nominee (as the
case may be) be entered in the Register of Members of the Company
in respect of the Shares.
5.1.6 Shareholders' Resolutions: Evidence of the passing of effective
shareholders' resolutions appointing Xxxxxxx Xxxxxxx as a director
of the Company in addition to Xxxxx Xxxxxx.
5.1.7 Releases of Charges over Shares: Unconditional releases of any
Charges over any of the Shares;
5.1.8 Resignations: Resignations in writing of Xxxxxx Xxxxxxxx Xxxxxx as
a director of the Company and acknowledgement from her in a form
acceptable to the Purchaser that the Company has no liability
(whether monetary or otherwise) to her whether by way of fees,
salary, reimbursement for expenditure, compensation or otherwise
and that they have no claims of any nature whatsoever against the
Company;
5.1.9 Company Records: The Statutory Books, the Business Records and the
common seal(s) of the Company or if there is no common seal, a
certificate from a director confirming that;
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5.1.10 Pre-conditions: Evidence satisfactory to the Purchaser that the
Vendors has fulfilled its obligations under clause 4;
and against compliance with the above provisions the Purchaser shall pay
or satisfy the Consideration as specified in clause 3.1.1.
6. Default at Completion
6.1 Default by Vendors: Without prejudice to clause 8, if any of the
provisions of clauses 4 or 5 are not fully complied with on Completion,
the Purchaser may (in addition to and without prejudice to all other
rights or remedies available to the Purchaser under this Agreement or
otherwise) at the Purchaser's option:
6.1.1 Rescind: Rescind this Agreement; or
6.1.2 Completion: Effect Completion so far as practicable having regard
to the defaults which have occurred (without releasing the Vendors
from liability to comply as soon as possible with the Vendors's
obligations under clauses 4 and 5); or
6.1.3 Delay Completion: Fix a new date for Completion not being more
than 28 days after the Completion Date) and in that case the
Vendors shall pay to the Purchaser interest at the Interest Rate
on the Consideration payable on the Completion Date from the date
on which Completion was due until Completion takes place. If
Completion does not take place other than by reason of a default
by the Purchaser then such payment shall not be refundable to the
Vendors;
6.2 Default by Purchaser: Subject to clause 3.6, if from any cause whatsoever
save the default of the Vendors any portion of the Consideration is not
paid upon the due date for payment the Purchaser shall pay to the Vendors
interest at the Interest Rate on the portion of the Consideration so
unpaid from the due date for payment until payment, without prejudice to
any of the Vendors's rights or remedies.
7. Warranties
7.1 Vendors Warranties: The Vendors and each of them jointly and severally
represent, warrant and undertake to the Purchaser in terms of the
Warranties and it is agreed that:
7.1.1 Investigations not to affect Warranties: Except as disclosed in
Schedule 3 and/or the Disclosure Letter, the Warranties shall not
be modified, qualified or discharged or in any way affected by any
investigation made by the Purchaser into the affairs of the
Company;
7.1.2 Separate and Independent: Each of the Warranties shall be separate
and independent and save as expressly otherwise provided shall not
be limited by reference to any other of the Warranties or any
other provision of this Agreement.
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7.2 Reliance on Warranties: The Vendors acknowledge that the Purchaser has
entered into this Agreement in reliance (among other things) on the
Warranties.
7.3 Vendors' Covenants: The Vendors and each of them jointly and severally
warrant, represent and undertake to the Purchaser and also as a separate
covenant to the Company:
7.3.1 Indemnity: That the Vendors and each of them jointly and severally
will keep the Purchaser and the Company fully indemnified against
all and any depletion in or reduction in the value of the Shares
or any of the assets of the Purchaser or the Company and all
Proceedings and Costs reasonably suffered or incurred by the
Purchaser or the Company as a result of or in relation to any
breach or non-fulfilment of any of the Warranties and all Costs
incurred in making, defending or compromising any Proceedings in
relation to facts or matters which are or would if proved or might
constitute such a breach or non-fulfilment; and
7.3.2 No Representations Made: That no promise or representation has
been made to them in connection with any of the Warranties or the
Disclosure Letter in respect of which the Company or any of the
directors or employees of the Company might be liable; and
7.3.3 No Breach of Warranties Prior to Completion: That they will
procure that (except only as may be necessary to give effect to
this Agreement) neither they nor the Company shall do, allow or
procure any act or omission before Completion which would
constitute a breach of any of the Warranties if they were given at
any time prior to or on Completion or which would make any of the
Warranties inaccurate or misleading if they were so given; and
7.3.4 Disclosure of Change in Circumstances: That they will forthwith
disclose in writing to the Purchaser any matter or thing which may
arise or become known to them or any of them after the date of
this Agreement and prior to Completion which is inconsistent with
any of the Warranties or which might render any of them inaccurate
or misleading when given at Completion or which might be material
to be known by a purchaser for value of the Shares or which might
have a material adverse effect on the value of the Shares or any
of the assets of the Company.
7.4 Warranty Limitations: Notwithstanding any other provisions of this
Agreement, the warranties are made and given subject to the provisions of
Schedule 3.
8. Rights of Rescission
8.1 Rescission for Breach: Without prejudice to clause 6, if on or prior to
Completion it should be found that:
8.1.1 Unfulfilled Obligations: Any obligation of the Vendors contained
in this Agreement is or will on Completion be unfulfilled; or
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8.1.2 Breach of Warranties: Any Warranty is or may at Completion be
inaccurate or misleading;
then the Purchaser may, without prejudice to any other rights available
to it under clause 8.2 of this Agreement, by notice in writing to the
Vendors, rescind this Agreement.
8.2 Effect of Rescission under Clause 8.1: Rescission of this Agreement under
clause 8.1 shall not extinguish any right of the Purchaser to damages or
compensation to the extent of the audit costs and the rental review costs
incurred by the Purchaser.
8.3 Rescission for Matters other than Default: If on or prior to Completion:
8.3.1 Destruction of Assets: Any asset of the Company shall be destroyed
or damaged to an extent which in the opinion of the Purchaser
materially and adversely affects the Company or the carrying on of
the business of the Company; or
8.3.2 Material Adverse Change: Any other event shall occur which affects
or is likely to affect adversely to a material degree the Company
or the financial position, business, assets or profitability of
the Company or the value of the Shares to the Purchaser,
the Purchaser shall be entitled by notice in writing to the Vendors to
rescind this Agreement, but the occurrence of such an event shall not
give rise to any right to damages or compensation except where the
Vendors has failed to give notice of such event as required by clause
7.3.4.
9. Conditions
9.1 This Agreement is conditional upon:
9.1.1 Charge Holders' Consent: All debenture holders or other Charge
holders having Charges over the Shares or any assets of the
Company (where the failure to obtain any approval might constitute
an event of default under such Charge) approving the transfer of
the Shares to the Purchaser and agreeing to release such Charges
on terms satisfactory to the Vendors and the Purchaser; and
9.1.2 Asset Lessor's Consent: Consent being given by the lessor of any
assets leased by or on hire or conditional purchase to the Company
to the transfer of the Shares to the Purchaser where the failure
to obtain such consent might constitute an event of default under
such lease or hire or conditional purchase agreement; and
9.1.3 Licensor's Consent: Consent being given by the licensors specified
in Schedule 4 to the transfer of the Shares; and
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9.1.4 Government or Regulatory Consents: Consent being given by any New
Zealand or Canadian government or regulatory body whose consent is
required to enable completion of this Agreement; and
9.1.5 Material Contractors' Consent: Consent being given by the other
party or parties to any agreement under which the Company enjoys
any material benefit where without such consent such agreement
might be terminated, which agreements include without limitation
those specified in the Schedule 4; and
9.1.6 Landlord's Consent: The lessor of the Premises consenting to the
transfer of the Shares to the Purchaser; and
9.1.7 The approval of the Alberta Stock Exchange.
9.1.8 The approval of the board of directors of the Purchaser.
9.2 Fulfilment of Conditions: Each of the parties shall do all acts and
things reasonably necessary to procure the fulfilment of the conditions
set out in clause 9.1.
9.3 Benefit of Conditions: The Vendors acknowledges that the conditions
contained in clauses 9.1.1 to 9.1.8 have been inserted solely for the
protection of the Purchaser and accordingly the Purchaser may waive any
of such conditions and in such event this Agreement shall remain binding
on the parties.
9.4 Failure of Conditions: Should:
9.4.1 Not Satisfied: Any of the conditions set out in clause 9.1 not be
fulfilled or waived (as the case may be) by 7 April 1997 or such
later date as may be agreed by the parties; or
9.4.2 Unreasonable Conditions: Any consent or approval required in terms
of the conditions set out in clause 9.1 be granted on terms not
reasonably acceptable to any affected party;
then this Agreement shall be voidable by notice in writing and this
Agreement shall then be at an end and the parties shall not have any
further rights or obligations except that the Vendors will repay any
deposit.
10. Non Competition
10.1 Non-Competition: In consideration of the Purchaser entering into this
Agreement and as a condition precedent the Vendors and each of them
acknowledge that the value of the goodwill of the business of the Company
upon which the Consideration has been assessed is dependent upon and has
been calculated on the basis that they will not carry on a business the
same as or in substantial competition with that at present carried on by
the Company in opposition to the Company after Completion for the period
specified below and accordingly the
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Vendors and each of them jointly and severally covenant and agree with
the Purchaser that:
10.1.1 Business: They will not during a period which is the greater of 1
years from the Completion Date or 1 year from the date of
termination of the Service Agreement of Xxxxx Xxxxxx provided for
in clause 4.1.4 at any place in New Zealand (except as a servant
of the Company or the Purchaser) or except with the prior written
consent of the Purchaser be directly or indirectly engaged or
connected or interested in either on their own account or as a
partner with or as an employee of any other person or as a
shareholder, director, officer, consultant, adviser or employee of
any person (other than as holder of not more than 5% of the shares
in the capital of any public company if and only so long as such
shares are listed on any official stock exchange) or directly or
indirectly assist financially any such business; and
10.1.2 Orders: They will not on their own account or for any person,
enterprise, firm, trust, joint venture or syndicate solicit orders
for such business otherwise than for the benefit of the Company
from any person, firm or company who at the Completion Date was or
had previously been a customer of the Company; and
10.1.3 Employees: They will not on the Vendors' own account or for any
person, enterprise, firm, trust, joint venture or syndicate entice
or attempt to entice away from the Company or the Purchaser any
employee of the Company or the Purchaser.
10.2 Provisions with respect to Covenants: Each of the covenants contained in
clause 10.1 shall:
10.2.1 Separate and Severable: Be separate and severable and to the
extent that any such provision is unenforceable by reason of its
period, scope or area being held by a court of competent
jurisdiction to be unreasonable, then such provision shall be
limited to the maximum period, scope or area which such court
considers reasonable and shall be enforceable on those terms:
10.2.2 Benefit of Purchaser and Assigns: Be given for the benefit of and
be enforceable by the Purchaser and the Purchaser's successors and
assigns.
11. Limitation of Trustee Liability
11.1 Notwithstanding any other provision of this Agreement but subject to
clause 11.2 the liability of the trustees of the R H and X X Xxxxxx
Family Trust (Trust) shall not be construed as unlimited personal
obligations but shall be limited to a liability to pay the money and
perform and observe the provisions of this Agreement out of and to the
extent of the assets of the R H and X X Xxxxxx Family Trust or such
additional assets as would have been held by them as such Trustees in the
normal course of the administration of the Trust but for their default.
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11.2 Clause 11.1 shall in no respect limit the personal liability of Xxxxx
Xxxxx Xxxxxx.
12. Arbitration
12.1 If any dispute or difference shall arise between any of the parties in
any way arising out of or in connection with this Agreement such dispute
or difference shall be referred to the arbitration of a single arbitrator
if the parties can agree upon one or otherwise of two arbitrators one to
be appointed by the Vendors and one by the Purchaser or an umpire to be
appointed by the two arbitrators prior to entering into consideration of
the matter and any such reference shall be a submission to arbitration
within the meaning of the Arbitration Xxx 0000 and its amendments.
13. General
13.1 Non-Merger: The warranties, indemnities, representations and undertakings
set out in this Agreement shall notwithstanding any rule of law to the
contrary not merge in the instruments of transfer executed pursuant to
this Agreement but shall remain in full force and effect and enforceable
to the fullest extent.
13.2 No Announcement: The parties agree that (except as may be required by law
or by the requirements of the Alberta Stock Exchange) they will not make
any announcement or disclosures as to the subject matter of this
Agreement except in a form and manner and at such time as all parties may
agree.
13.3 Notices: Any notice to be given pursuant to this Agreement shall be given
in accordance with and subject to the following provisions of this clause
14.3:
13.3.1 In Writing: All notices shall be in writing signed by a duly
authorised officer of the party giving the notice or by the
party's solicitor;]
13.3.2 Delivery: Without prejudice to any other sufficient mode of
delivery, a notice may be sent by hand, prepaid post, telex or
facsimile to the address or number (in the case of telex or
facsimile) of the intended recipient last advised to the sender in
accordance with this clause. The initial addresses and numbers of
the parties are:
Vendors c/o Xxxxx Xxxxxx & Xxxxxxxx
Barristers and Solicitors
XX Xxx 000
XXXXXXXX 0
Facsimile: 307 2093
Purchaser 0 Xxxx Xxxxxx
Xxxx Xxxx
XXXXXXXX
Facsimile: 376 7891
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13.3.3 Notice by Hand: Subject to clause 13.3.6, a notice delivered by
hand shall be received on delivery;
13.3.4 Notice by Post: Subject to clause 13.3.6, a notice sent by prepaid
post shall be deemed to be received 3 days after being posted;
13.3.5 Notice by Telex or Facsimile: Subject to clause 13.3.6, a notice
sent by telex or facsimile shall be deemed to be received at the
time of transmission where a transmission report or answerback
code produced by the sender's machine indicates successful
transmission;
13.3.6 Receipt Outside Business Hours: Any notice received or deemed to
be received pursuant to clauses 13.3.3, 13.3.4 or 13.3.5 after
5.00 pm (recipient's time) on a Business Day in the recipient's
city or on a day which is not a Business Day in the recipient's
city shall be deemed to be received at 9.00 am (recipient's time)
on the next Business Day in the recipient's city;
13.3.7 Proof of Delivery: In proving delivery of a notice, it shall be
sufficient:
(a) By Hand: In the case of a notice by hand, to provide
evidence that the notice was delivered to the address of
the recipient and no acknowledgement from the recipient
shall be necessary;
(b) By Post: In the case of a notice by post, to provide
evidence that the notice was correctly addressed and posted
in a prepaid envelope;
(c) By Telex or Facsimile: In the case of a notice by telex or
facsimile, to provide the transmission report produced by
the sender's machine showing a successful transmission to
the correct number of the recipient and to have telephoned
the recipient to confirm receipt of a legible copy of such
notice.
13.4 Applicable Law and Jurisdiction: This Agreement shall be governed by and
construed and interpreted in accordance with the laws of New Zealand and
the parties irrevocably submit to the exclusive jurisdiction of the New
Zealand courts.
13.5 Further Assurance: The parties will do all things including without
limitation the execution of documents as shall be necessary to give full
effect to this Agreement.
13.6 Entire Agreement: This Agreement including all schedules, annexures and
exhibits to it, and any documents incorporated by express reference forms
the entire agreement between the parties relating to its subject matter
and supersedes all prior agreements and understandings between the
parties with respect to that subject matter. If there is any conflict
between the terms of this document and any other document forming part of
this Agreement, the terms set out in this document shall prevail.
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13.7 Variation: This Agreement may only be varied by an express written
agreement executed by all the parties or by persons duly authorised in
writing on their respective behalf.
13.8 Costs: Each party shall bear their own costs of and incidental to the
preparation, completion and implementation of this Agreement.
13.9 Waiver: No failure to exercise and no delay in exercising on the part of
the Purchaser any right under this Agreement shall operate as a waiver of
that right nor shall any single or partial exercise of any right preclude
any other or further exercise of such right or the exercise of any other
right. Any such waiver unless otherwise expressly agreed in writing,
shall only apply in respect of the particular circumstances for which it
is given.
13.10 Counterparts: This Agreement may be signed in any number of counterparts,
all of which when taken together constitute one and the same instrument.
Any party may enter into this Agreement by executing any such
counterpart. The parties will co-operate to circulate all counterparts to
each other for the purposes of having all counterparts executed by all
parties as soon as practicable following Completion.
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EXECUTED by the parties.
SIGNED by ) /s/ X X Xxxxxx
XXXXX XXXXX XXXXXX ) -----------------------
in the presence of: ) X X Xxxxxx
[ILLEGIBLE]
------------------------- Witness's Signature
------------------------- Name
XXXXX X XXXXX
SOLICITOR
AUCKLAND
------------------------- Occupation
------------------------- Address
SIGNED by the Trustees of the ) /s/ X X Xxxxxx
RH AND XX XXXXXX FAMILY ) -----------------------
TRUST in the presence of: ) X X Xxxxxx
)
) /s/ X X Xxxxxx
) -----------------------
) X X Xxxxxx
)
) /s/ X X Xxxxxxx
) -----------------------
) X X Xxxxxxx
[ILLEGIBLE]
------------------------- Witness's Signature
------------------------- Name
XXXXX X XXXXX
SOLICITOR
AUCKLAND
------------------------- Occupation
------------------------- Address
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SIGNED for XXXXXXX (N.Z.) ) Signature /s/ Xxx Xxxxxxxx
INVESTMENTS LIMITED ) -----------------------
by: )
) Name Xxx Xxxxxxxx
) -----------------------
) Director/Officer
Signature
-----------------------
Name -----------------------
Director
(C) Lowndes Jordan
Xxxxxxxx 0000
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SCHEDULE 1
Vendors' Shareholdings
Shareholders No. of Ordinary Shares % of shares in Purchaser
to be allotted (clause 3.1.4)
Xxxxx Xxxxx Xxxxxx 39,200 19.60%
R H and X X Xxxxxx 160,800 80.40%
Family Trust
Shareholders' Loans Amount of Loan
Shareholder
X X Xxxxxx current account $ 113,570.03
X X Xxxxxx term loan $ 77,311.00
R H and X X Xxxxxx $ 169,442.26
Family Trust
X X Xxxxxx $ 187,756.57
The forgoing loan balances are subject to verification and amendment if
necessary following audit by KPMG.
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SCHEDULE 2
Warranties (clause 7.1)
1. General
1.1 Disclosure Letter: All information contained or referred to in the
Disclosure Letter is true complete and accurate in all respects
and the Vendors are not aware of any other fact or matter which
renders or might upon its disclosure render any such information
misleading.
1.2 Agreement: The provisions of the recitals to this Agreement,
clause 1.1 of this Agreement and all information contained in the
Schedules and Annexures to this Agreement are complete and]
correct in all respects.
1.3 Information Supplied: All written information which has been given
or authorised to be given by any of the Vendors or the Directors
or Secretary or any of the officials of the Company or by any of
the officials of the Company or by any professional advisers of
the Vendors or the Company to the Purchaser or to any of its
directors officials agents or professional advisers in the course
of the negotiations leading to this Agreement was when given and
will at Completion be true complete and accurate in all respects
and the Vendors are not aware of any other fact or matter which
renders or might upon its disclosure render any such information
misleading.
1.4 All Necessary Disclosures Made: All the facts and circumstances
relating to the Shares and to the assets, business and affairs of
the Company material for disclosure to an intending purchaser of
the Shares have been disclosed to the Purchaser or its advisers in
writing and any such facts arising prior to Completion will
forthwith be disclosed in writing to the Purchaser or its
advisers.
1.5 Constitution: The Constitution of the Company to be handed to the
Purchaser pursuant to clause 5.1.8 of this Agreement will be an
accurate copy or originals, if available, of the documents in
force at Completion and will have annexed a copy of every
resolution required to be annexed by the Companies Xxx 0000 or the
Companies Xxx 0000, as the case may be.
2. Shares
2.1 Shares: The Shares constitute the whole of the issued and allotted
share capital of the Company and they are and will be on
Completion held by the Vendors in the Vendors' own right.
2.2 Encumbrances: There is not any and will not at Completion be any
Charge on, over or affecting the Shares and there is no agreement
or commitment to give or create any such Charge and no demand has
been made by any person claiming to be entitled to any such
Charge.
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2.3 No Subsidiaries: The Company never has had and does not have and
will not prior to Completion without the prior written consent of
the Purchaser create or acquire any Subsidiary or any shares in
any other company other than the Company's Subsidiaries.
2.4 No Increase in Capital: The Company has not since the Last
Accounting Date and will not pending Completion increase its share
capital or subdivide, amalgamate, or consolidate the Shares or any
of them nor has it or will it agree to do so.
2.5 No Decrease in Capital: The Company has not at any time repaid or
agreed to repay or redeem or buy back or repurchase any shares of
any class of its share capital or otherwise reduced or agreed to
reduce its issued share capital or any class of its share capital
and has not at any time amalgamated or agreed to amalgamate with
any other company.
2.6 No Related Companies: The Company has no Related Companies.
2.7 No Change of Capital Structure or Name: The Vendors will not
permit to be passed before Completion any resolution by the
Company:
2.7.1 Altering its share capital;
2.7.2 Altering the rights or obligations attaching to any of the
Shares;
2.7.3 Changing its name;
2.7.4 Altering its Constitution.
3. Accounts
3.1 Books of Account: All the Business Records and Statutory Books are
in the Company's possession or under its control and have been
fully and correctly completed and will pending Completion continue
to be so completed and there are and will pending Completion be no
material inaccuracies or discrepancies of any kind contained or
reflected in any of them. They give and reflect and at Completion
will give and reflect a true and fair view of the financial,
contractual and trading position of the Company and of its plant
and machinery, fixed and current assets and liabilities (actual
and contingent), debtors and creditors, work in progress and
stock.
3.2 Retention of Records: The Company holds and will on Completion
have in its possession all books of account and other records
which it is bound by law to retain in its possession either
indefinitely or for a particular period or periods of time.
3.3 Accounts:
3.3.1 True and Fair View: The Accounts are complete and accurate
and give and reflect and will at Completion give and
reflect a true and fair view of the Company, its activities
and its financial status in all respects.
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3.3.2 Comply with Statute: The Accounts comply with all
applicable requirements of the Companies Xxx 0000, the
Companies Xxx 0000 and the Financial Reporting Xxx 0000, as
the case may be.
3.3.3 GAAP: The Accounts have been prepared in accordance with
generally accepted accounting practice as that term is
defined in the Financial Reporting Xxx 0000 and to the
extent consistent with such generally accepted accounting
practice on a basis consistent with that adopted for
preceding accounting periods.
3.3.4 No Unusual or Extraordinary Items: The Accounts are not
affected by any unusual extraordinary exceptional or
non-recurring items or by any other factor rendering the
results set out in the Accounts (or any of them) unusually
better or worse than they (or any of them) might otherwise
be or have been.
3.3.5 Financial Position: The Accounts properly reflect the
financial position of the Company as at the Last Accounting
Date and of its results for the accounting period ending on
that date.
3.3.6 Full Disclosure: The Accounts fully disclose all the assets
and liabilities (whether ascertained, contingent, deferred
or otherwise and whether or not quantified or disputed) of
the Company as at the Last Accounting Date and make full
provision and/or reserve for all such liabilities.
3.3.7 Provisions for Losses: The Accounts make full provision for
any foreseeable losses which may arise on Completion and/or
on realisation of stock and/or on completion of any
existing or proposed contract.
3.3.8 Provision for Bad Debts: The Accounts make adequate
provision for all bad and doubtful debts of the Company and
for depreciation of the fixed assets of the Company having
regard to their original cost and estimated useful life.
3.3.9 Financial Commitments: The Accounts fully disclose all
financial commitments in existence as at the Last
Accounting Date.
3.4 Period Between Agreement and Completion: From the Last Accounting
Date to Completion:
3.4.1 Conduct of Business: The Company has carried on and will
carry on its business in an efficient normal and proper
manner so that the financial standing and position of the
Company as at Completion will not have deteriorated
materially from that disclosed in the Accounts;
3.4.2 Liabilities: The Company has not incurred and will not
incur any liability (whether contingent or otherwise) and
has not made any payments except in the normal and ordinary
course of business;
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3.4.3 Disposals: The Company has not disposed of and will not
dispose of any material portion of its undertaking or any
material part of its fixed assets or any of its goodwill;
3.4.4 Acquisitions: The Company has not acquired any assets of a
capital nature and will not acquire any assets of a capital
nature exceeding $3,000 in value without the Purchaser's
prior consent;
3.4.5 Revaluations: The Company has not revalued upwards and will
not revalue upwards any of its assets;
3.4.6 Capital Investments: The Company has not entered into and
will not enter into any material capital investment or
commitment in excess of $3,000 in aggregate or any major
transaction as that term is defined in section 129(2) of
the Companies Xxx 0000;
3.4.7 Dividends: The Company has not declared, paid or made and
will not declare, pay or make any dividend, bonus or
similar distribution;
3.4.8 Insurance: The Company has kept and will keep effectively
insured to the full insurable amounts all assets and
undertaking of the Company against all normal insurance
risks including reasonable loss of profits insurance;
3.4.9 Terms of Trade: The Company has not made or permitted and
will not make or permit any change to any of its product
lines or to the terms or conditions of any agency held by
the Company or to the selling prices or terms and
conditions of sale of any products or services of the
Company;
3.4.10 Turnover: The Company has attained a turnover no less than
that for the corresponding period in the previous financial
year;
3.4.11 Deposits: The Company has deposited and will deposit all
amounts received by it to the credit of its bank account
and such amounts appear in the appropriate books of
account;
3.4.12 Debts: The Company has paid and will continue to pay all
its debts as they fell or fall due.
3.5 Non-Disclosure of Liabilities: If it is discovered before or after
Completion that the Company was liable at the Completion Date
(whether contingently or otherwise) to any person in respect of
the Company prior to the Completion Date except in the ordinary
course of business which liability has not been fully disclosed to
the Purchaser then without prejudice to any other rights of the
Purchaser, the Vendors and each of them jointly and severally will
immediately upon demand by the Purchaser pay to the Purchaser or
as directed by the Purchaser the amount of each such liability
after deducting from each such liability any saving to the Company
in Taxation as a result of such liability. For the purposes of
this clause:
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3.5.1 The word "liability" shall include liability for or in
respect of Taxation or any re-assessment thereof which the
Company may be required to pay in respect of any period
prior to the Completion Date and which has not been so
fully disclosed and any amount whatsoever (including all
Costs in connection therewith) arising out of any
occurrence or happening which shall have taken place prior
to the Completion Date;
3.5.2 Provision of any amount by way of note to the Accounts
shall not be deemed to be provision of that amount in the
Accounts.
4. Stock
4.1 Valuation: The methods of valuing stock and work in progress as at
the Last Accounting Date (which included a physical stocktaking)
were the same as those adopted for the 3 immediately preceding
financial years and all redundant and obsolete stock was wholly
written off all slow moving stock was written down appropriately
and the value attributed to the remaining stock did not exceed the
lower of direct cost or net realisable value.
4.2 Changes to Stock Since Last Accounting Date: The stock on hand at
Completion will comprise the stock as at the Last Accounting Date
less stock sold and with the addition of stock bought in the
ordinary course of business since that date and no stock currently
held other than that written off or written down in the Accounts
or which are service spares, is slow moving, out of date or
fashion, redundant or obsolete or which will not realise its book
value within 12 months of the Completion Date.
5. GST
5.1 Registration: The Company is registered for the purposes of the
GST Act and:
5.1.1 Not a Member of a Group: The Company has not at any time
been a member of a Group or been treated as a member of a
Group for such purposes and no application for it to be so
treated has at any time been or pending Completion will be
made and no act or transaction has been or pending
Completion will be effected in consequence whereof the
Company is or may be held liable for any GST chargeable
against some other company except the Company's
Subsidiaries;
5.1.2 Compliance with GST Act: The Company has complied and
pending Completion will comply in all respects with the GST
Act legislation;
5.1.3 Maintenance of Records: The Company has given obtained made
and maintained and pending Completion will give, obtain,
make and maintain complete correct and up to date invoices,
records and other documents appropriate or requisite for
the purposes of the GST Act;
5.1.4 No Arrears: The Company is not and will not pending
Completion be in arrears with any payment or returns under
the GST Act or liable to any
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abnormal or non-routine payment or any forfeiture or
penalty or to the operation of any penal provision and
where payment is not yet due or receivable has provided for
such payment;
5.1.5 All Supplies Taxable: All supplies made and to be made
pending Completion by the Company are taxable supplies and
the Company is not and will not pending Completion be
denied credit for any input tax.
6. Taxation
6.1 Returns Made: All forms, notices, elections, computations,
payments (including, without limitation, any fines or penalties)
and returns which should be made by the Company for any Taxation
purpose have and will at Completion have been made and are and
will be up-to-date, correct and on a proper basis and none of them
is now or will at Completion be the subject of any dispute with
the Inland Revenue Department or any other Taxation collection
agency. In particular the returns in relation to provisional
Taxation will not give rise to any assessment, adjustment or
set-off (including any claim for interest on unpaid Taxation) by
the Inland Revenue Department.
6.2 Provision in Accounts: Full provision and reserves were made in
the Accounts in respect of all Taxation liabilities to or for
which the Company was at the Last Accounting Date or at any time
since may have become or may become liable to be assessed or
charged or to pay. Provision of any amount by way of a notice to
the Accounts shall not be a provision for the purposes of this
paragraph.
6.3 No Non-commercial Transactions: The Company has not at any time
entered into a transaction or series of transactions containing
steps inserted without any commercial or business purpose apart
from the obtaining of a Taxation or stamp duty advantage.
6.4 Debtors Recorded Appropriately: All amounts included in the
Accounts or (in the case of an amount arising after the date of
the Accounts) in the books of the Company as due from Debtors
represent amounts actually invoiced by the Company to such debtors
not earlier than 3 months prior to the Last Accounting Date (or in
the case of an amount arising after the date of the Accounts not
earlier than 3 months prior to the date on which it was recorded
in the books of the Company) and no part of such amounts still
outstanding has been released on terms that any debtor pays less
than the full book value of its debt or has been written off or
has proved to any extent irrecoverable or is now regarded as
irrecoverable or has been compromised on any terms.
7. Loans
7.1 No Undisclosed Loans: The aggregate amount appearing in the
Accounts as being outstanding in respect of loans owing by the
Company was at the Last Accounting Date the aggregate of all loans
or financial accommodation of whatever nature from any source so
outstanding.
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7.2 Loans Within Corporate Powers: Such aggregate did not (and the
amount outstanding in respect of loans owing by the Company does
not and will not at Completion) exceed any limitation on the
Company's borrowing contained in its Constitution or in any loan
offer, facility letter, debenture or other deed or document
executed by it or, in the case of borrowings on overdraft, its
overdraft facilities.
7.3 Loans from Directors or Shareholders: All amounts outstanding and
appearing in the books of the Company as loan accounts or as due
to directors or shareholders wholly represent money or money's
worth paid or transferred to the Company as the case may be or
remuneration accrued due and payable for services rendered and
(save for such remuneration) no part thereof has been provided
directly or indirectly out of the assets of the Company.
7.4 No Repayments: The Company has not repaid and pending Completion
except as provided in clause 3.1.3 of the attached Agreement will
not repay any loans or other financial accommodation in whole or
in part nor has it by reason of any default by it in any of its
obligations become bound or liable to be called upon to repay
prematurely any loans or borrowed moneys and pending Completion no
such default will occur.
8. Liabilities and Commitments
8.1 No Capital Commitments: Since the Last Accounting Date the Company
has not except in the ordinary course of business made any capital
expenditure or incurred any capital commitments nor has it
disposed of or realised any substantial capital assets or any
interest in such assets and has no outstanding capital commitment
and pending Completion no capital commitments nor disposals of
capital assets or land or any estate or interest in such assets or
land will be undertaken by the Company without the prior written
consent of the Purchaser.
8.2 No Guarantees: The Company is not and will not prior to Completion
become a party to any contract of guarantee or indemnity.
8.3 No Material Contracts: The Company has not entered into and will
not enter into any material contract (including the granting of
options to purchase or Charges over all or any of the Company's
assets) except in the normal and ordinary course of business and
that the Company has not and will not become a party to any
unusual, abnormal or onerous contract or agreement whatsoever.
8.4 No Long Term Contracts: The Company is not and will not on
Completion be a party to any contract of service or supply which
cannot be terminated by not more than 1 month's notice without
giving rise to any claim for damages or compensation.
8.5 No Commitments since Last Accounting Date: The Company has not
since the Last Accounting Date been and will not at Completion be
a party to any contract, commitment or arrangement of any nature
except such as have been entered into in the normal and ordinary
course of trading and are capable of being wholly satisfied
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27
or performed within 3 months from Completion or of being
terminated within such period without cost to the Company.
8.6 No Arrangements: The Company is not and will not on Completion be
a party to any joint venture, partnership, syndicate or other
consortium arrangement.
8.7 No Agents: No person is authorised to act as agent for the Company
or otherwise to bind the Company other than the directors of the
Company acting as a board and the Company has not appointed any
agents, distributors or managers in respect of any of its products
or services in any part of the world.
8.8 No Default under Agreements: The Company is not now, nor pending
Completion will it become, in default under any agreement to which
it is or may become a party or in respect of any other obligations
binding upon it an no event has occurred which would enable any
third party to terminate any contract or any benefit enjoyed by
the Company.
9. Employees
9.1 Full Disclosure of Terms: Full disclosure in writing of the
current rate of remuneration, fees and expenses payable to each
officer and employee of or consultant to the Company and the terms
of such employment or consultancy (including obligations in
respect of any directors' or officers' keyman or indemnity
insurance) have been made to the Purchaser in writing and no such
officer or employee or consultant has given notice or is under
notice of dismissal or termination of employment of any
consultancy agreement.
9.2 No Amounts Due: No amounts are due to or in respect of any former
officer or employee or consultant and there are outstanding no
arrears of salary, wages, fees, holiday pay or other remuneration.
9.3 No Industrial Disputes: The Company is not involved in any
industrial or trade dispute or any dispute with any trade union or
organisation or body of employees.
9.4 No Changes: No change has been made in the terms of employment or
consultancy by the Company of any person who was employed at the
Last Accounting Date and pending Completion the Company will not
without the Purchaser's prior written consent engage any new
employee or consultant.
9.5 No Other Payments: No moneys other than in respect of remuneration
or emoluments of employment or fees are payable to or for the
benefit of any director or officer of the Company.
9.6 No Profit Sharing: The Company is not and will not prior to
Completion become a party to any agreement with any director,
officer, employee or consultant of the Company under which any
such person is entitled to a share of profits of the Company or to
any bonus calculated on profits or to participate in any share
incentive scheme or share option scheme or similar arrangement and
that no pensions, retiring allowances or other benefits are or
will be payable by the
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Company to any director, officer or employee of the Company during
such person's employment or consultancy.
9.7 No Schemes: There are not now and will not on Completion be in
existence any retirement, death or disability benefit schemes for
directors or employees or any obligations to or in respect of any
present or past directors or employees with regard to retirement,
redundancy, death, sickness or disability pursuant to which the
Company is or may become liable to make any payments.
9.8 No Breaches of Contract: Since the Last Accounting Date no
liability has been incurred or payment made by the Company for
breach of any contract (whether express or implied) of service,
for redundancy or for compensation for loss of office or wrongful
dismissal or in respect of retirement, death, sickness or
disability and no gratuitous payment has been made or will prior
to Completion be made or promised by the Company to or in respect
of any director or employee.
9.9 No Liability for Leave Payments: The Company is not and will not
at Completion be under any liability to any person in respect of
long service leave or accrued annual leave.
9.10 Compliance with Legislation: The Premises and operation of the
business of the Company and the terms on which the employees of
the Company were recruited and are employed comply and will at
Completion comply with the Employment Contracts Xxx 0000, the
Equal Pay Xxx 0000, the Human Rights Xxx 0000, the New Zealand
Xxxx of Rights Xxx 0000, the Wages Protection Xxx 0000, the
Holidays Xxx 0000, the Health and Safety in Employment Xxx 0000
and all applicable legislation governing employment and safety of
employees.
10. Statutory Obligations
10.1 Holding of Licences: The Company holds and will on Completion be
in possession of all current licences (including import licences
and concessions, if any) consents, authorities and permits from or
issued by any Governmental Department, municipal or local body or
other authority whether in respect of the Premises, plant,
machinery, buildings or other assets of the business or otherwise
necessary or required to enable it to carry on its business fully
and effectively and that the Company has not had notice that any
such licences, consents, authorities or permits are being or are
likely to be withdrawn or in any manner qualified whether by
reason of the sale of the Shares or otherwise howsoever.
10.2 No Requisitions: There has not since the Last Accounting Date been
and will not on Completion be any unsatisfied requisitions by or
dispute with any local body health authority, government or ad hoc
authority or other body or official or authority having competent
jurisdiction affecting or relating to any of the Premises, plant,
machinery, buildings or other assets of the business, or the
employment of staff by the Company.
10.3 No Illegal Trade Practices: The Company is not, has not been and
will not pending Completion be a party to any agreement,
arrangement, understanding or practice
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which is contrary to the provisions of the Commerce Xxx 0000, or
the Fair Trading Xxx 0000, or the Consumer Xxxxxxxxxx Xxx 0000, or
the Privacy Xxx 0000.
10.4 No Breach of Statute: The Company has not committed any breach
which was unremedied at the Last Accounting Date of any statutory
provision, order, bylaw or regulation (in every case whether
applicable in New Zealand or elsewhere) binding on or applicable
to it with regard to the formation and operation of the Company,
the carrying on of the business of the Company or any other matter
relating to the Company and that the Company has not since such
date and will not prior to Completion commit any such breach.
10.5 All Documents Stamped: All documents which in any way affect the
right, title or interest of the Company in or to any of its
property, undertaking or assets or to which the Company is a party
and which attract stamp duty have been duly stamped and no
liability to pay stamp duty will arise as a result of Completion
by virtue of any previous transfer of any property, undertaking or
assets to the Company in particular but without limitation under
section 13(4) of the Stamp and Cheque Duties Xxx 0000.
10.6 Compliance with Companies Act: The Company has complied with and
will up to Completion comply with all the requirements of the
Companies Xxx 0000 or the Companies Xxx 0000 (whichever is
applicable) and any Act or Acts amending the same in relation to
the filing of all documents required to be filed with the
Registrar of Companies and otherwise howsoever.
10.7 All Registers Complete: The entries in the Register of Members,
Register of Directors and Secretaries, Interests Register,
Register of Charges and Register of Directors' Shareholdings of
the Company are correct and that such registers have been properly
kept.
11. Properties and Assets
11.1 Leasehold Premises: The Premises are held upon lease terms which
have been fully disclosed to the Purchaser.
11.2 Title and Compliance: The Company had on the Last Accounting Date
and will on Completion have sole title to and possession and
control of all the freehold and leasehold properties used or
occupied by it free from all leases, tenancies or Charges and each
of the said properties complies and will on Completion comply with
the local body code or ordinances affecting the same and with all
other statutory, local body and other regulations and
requirements.
11.3 All Premises Included: The Premises comprise all the freehold and
leasehold land and premises owned, used or occupied by the Company
and all the estate interest right and title whatsoever of the
Company in, under, over or in respect of any such land or
premises.
11.4 Compliance with Statutes: The Company has complied with all
provisions of the Building Xxx 0000, Resource Management Xxx 0000
and all other legislation (including regulations, bylaws,
ordinances, codes of practice, circulars and
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guidance notes made thereunder) relating to building, planning or
environmental matters and dealing with (but without limitation)
waste, contaminated land, discharges to land or ground and surface
water or sewers, emissions to air, noise, dangerous, hazardous or
toxic substances and materials, nuisance or health and safety and
there are no actions, claims or proceedings (whether actual or
potential) existing in relation to such matters nor is likely to
arise any liability in relation to such matters.
11.5 Compliance with Leases: The Company has paid all rent that may be
payable and has performed and observed all covenants (whether in
relation to freehold or leasehold land) conditions, agreements,
statutory requirements, planning or building or resource consent,
bylaws, orders and regulations affecting the Premises or any
business carried on the Premises and no notice of any breach of
any such matter has been received nor is the Vendors aware of any
such breach having occurred.
11.6 No Defects: No structural, drainage or other material defects have
appeared in respect of or affected the buildings and structures on
or comprising the Premises or any parts thereof and all such
buildings are in good and substantial repair and condition and
none has been constructed, maintained, altered or repaired using
materials containing any deleterious building material and none of
the Premises has been affected by flooding or subsidence.
11.7 No Other Matter: There is no other matter of which the Vendors are
or ought to be aware on reasonable enquiry and which adversely
affects the value of any of the Premises or casts any doubt on the
right or title of the Company to those Premises or its use of
those Premises for its business which should be revealed to a
Purchaser of the Shares of the Company or other person entering
into this Agreement.
11.8 Plant and Machinery: The Company's plant and machinery (including
fixed plant and machinery) and all equipment furniture and
vehicles are in good repair and condition (fair wear and tear
excepted) and in satisfactory working order and none of it is
surplus to the Company's requirements.
11.9 Debts Recoverable: The amount of all debts due or recorded in the
Accounts or the books of the Company as being due to the Company
as at Completion (less the amount of any provision or reserve made
in the Accounts or the books of the Company in respect of any
particular debts) will be good and collectable in full in the
ordinary course of business and in any event not later than 3
months after Completion and none of the said debts is or will at
Completion be subject to any counterclaim or set-off except to the
extent of any such provision or reserve.
11.10 Debtors Recovery: Should any of the debtors of the Company as at
the Completion fail to satisfy its liability to the Company in
full within 3 months from the Completion Date and the aggregate
amount due to such debtors exceed $5,000, the Vendors will
immediately upon demand by the Purchaser pay to the Purchaser (or
the Purchaser may deduct from the Consideration) the amount of
such excess amount. Following payment of such amount the Purchaser
shall be entitled to an assignment of the benefit of such excess
debts.
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11.11 Changes Since the Last Accounting Date: Since the last accounting
date:
11.11.1 No Write-Offs or Write-Downs: None of the assets of the
Company have been written off or written down nor has
there been any agreement for the release of any person
under liability to the Company;
11.11.2 Cash: The Company has neither disbursed nor received any
cash except in the ordinary course of its business and
amounts received by the Company have been deposited with
its bankers and appear in the appropriate books of
account;
11.11.3 Depletion in Assets: There has been no depletion in the
net assets of the Company and they have not been
materially diminished by the negligent, wrongful or
fraudulent act of any person;
11.11.4 GAAP: Everything which should according to generally
accepted accounting practices (as defined in the Financial
Reporting Act 1993) have been written up or recorded in
the Statutory Books and financial records of the Company
with respect to the assets of the Company (including the
Premises), has been written up and recorded;
11.11.5 Compliance with Notices: There have been no notices,
claims or demands served on the Company in respect of any
of its assets (including the Premises) which have not been
fully complied with.
12. Intellectual Property
12.1 All Intellectual Property Included: The Consideration for the
Shares is assessed on the basis that all licences and all
Intellectual Property or other similar rights relating to the
business of or used by the Company, if any, which are at present
owned solely and beneficially by the Company and that all of such
rights shall remain the property of the Company as the case may be
to the intent that the Company shall be the sole unencumbered and
undisputed owner of all such things as at Completion.
12.2 No Intellectual Property Agreements: The Company has not entered
into any agreement or arrangement for the provision of technical
information or assistance or granting rights in respect of any
patents, trade marks or registered designs or copyright and that
to the best of the Vendors's knowledge and belief the operations
of the Company do not infringe any patent or other intellectual
property right of any kind vested in any other party.
12.3 Disclosure of Intellectual Property: Full details of all
Intellectual Property owned or used by the Company have been given
to the Purchaser and no person has been authorised to make any use
whatsoever of any Intellectual Property owned by the Company and
the Company has not disclosed (except in the ordinary course of
its business) any of its know-how, trade secrets, technical
processes, confidential information, Intellectual Property or
lists of customers or suppliers to any other person.
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12.4 Use of Names: The Company is entitled to use its trade names in
those parts of the world in which it currently conducts its
business or its products are sold to its customers and no person
has been authorised to make any use whatsoever of either such name
and the use of such names by the Company does not infringe the
rights of any other person or entitle any other person to a claim
against the Company and neither name is being used claimed opposed
or attacked by any other person.
12.5 Name: The Company has not consented to and will not before
Completion consent to the adoption of a similar name by any other
company or person.
12.6 Intellectual Property Not Disputed: The Intellectual Property
rights of the Company have not been and will not at Completion be
challenged or disputed by any third party and the Vendors are not
aware of any facts or circumstances which might entitle a third
party to challenge the Company's ownership or use of the
Intellectual Property used in the business.
13. Commercial Matters
13.1 All Actions Indemnified: There is no cause of action in respect of
which the Company is not fully indemnified which could and might
be used for the purpose of commencing proceedings either civil or
criminal.
13.2 No Legal Proceedings: The Company is not engaged in any
Proceedings whatsoever nor are any Proceedings of any kind being
taken against it nor are the Vendors aware of any Proceedings
against the Company pending or threatened.
13.3 No Breaches of Contract: The Company is not and will not on
Completion be in breach of any contract, commitment or arrangement
of any nature whatsoever to which it is now or will then be a
party and is not and will not on Completion be a party to any
contract, commitment or arrangement which may be unenforceable by
the Company by reason of the transaction being voidable at the
instance of any other party or ultra xxxxx, void or illegal.
13.4 Insurance: Full details of all insurance policies maintained by
the Company have been supplied to the Purchaser and all such
insurances are now in force and all premiums due have been paid
and pending Completion the Company shall not permit any of its
insurances to lapse or do or omit to do anything the doing or
omission of which would make any such policy of insurance void or
voidable or would or might result in an increase in the rate of
premiums and no claims are outstanding and nothing has occurred to
give rise to any such claim.
13.5 No Notice from Lenders to Repay: The Company has not received
notice (whether formal or informal) from any lenders of money to
the Company requiring repayment or intimating the enforcement by
such lenders of any security which they may hold over any assets
of the Company and the Vendors are not aware of any circumstances
likely to give rise to any such notice being given or which would
enable any such notice to be given.
13.6 Effect of Acquisition of Shares: The Vendors have no reason to
believe that as a result of the proposed acquisition of the Shares
by the Purchaser:
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13.6.1 No Cessation of Supplies: Any supplier of the Company will
cease supplying the Company or may substantially reduce its
supplies to the Company or alter the terms on which it
supplies the Company; or
13.6.2 No Cessation of Custom: Any customer of the Company will
terminate any contract with the Company or cease or
materially reduce its business with it; or
13.6.3 No Notice of Termination of Employment: Any officer or
senior employee of the Company will give notice of
termination of his or her employment with the Company; or
13.6.4 No Termination of Contracts: Any of the licences, consents,
approvals, agreements or contracts currently granted to or
entered into by the Company required in connection with the
carrying on of its business in the manner in which it has
been carried on at any time during the 2 years prior to the
date hereof will be withdrawn, cancelled or be capable of
termination.
13.7 Arm's Length Supplies: All supplies of goods or services to the
Company are purchased by the Company direct from manufacturers or
suppliers on an arm's length basis and no commissions or similar
payments are made to the Vendors or any other intermediaries in
respect of such supplies.
13.8 No Outstanding Offers: No offer, tender or the like given or made
by the Company and still outstanding is capable of giving rise to
a contract merely by any unilateral act of a third party.
13.9 No Liabilities: The Company does not have and at Completion will
not have any outstanding debts, liabilities, contracts or
engagements, guarantees, undertakings or liabilities (including
contingent liabilities) other than liabilities implied by statute
or disclosed in the Accounts or incurred in the ordinary and
proper course of its trading business.
13.10 Continuance of Name: The Company does not and pending Completion
will not use on its letterheads, brochures, sales literature,
books, Premises or vehicles or otherwise carry on its business
under any name other than its corporate name.
13.11 Electronic Storage: The Company has not and will not pending
Completion have any of its records, systems, controls, data or
information recorded, stored, maintained, operated or otherwise
dependent upon or held by any means (including any electronic,
mechanical or photographic process whether computerised or not)
which (including all means of access thereto and therefrom) are
not under the exclusive ownership and direct control of the
Company. There has been no breach of any service or maintenance
contract relevant to any such electronic, mechanical or
photographic process or equipment whereby any person or body
providing services or maintenance thereunder may have the right to
terminate such service or maintenance contract.
13.12 Transactions with Associated Persons: The Vendors and their
Associated Persons have not entered into and will not prior to
Completion enter into any loan,
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borrowing, agreement or other arrangement with or on behalf of the
Company (other than as employee of the Company on terms fully
disclosed to the Purchaser) and are not and will not at Completion
be interested, whether directly or indirectly, in or have any
Charge over any of the assets of the Company.
14. Corporate Matters
14.1 Share Capital: There is not now outstanding and will not be
outstanding at Completion in respect of the Company any option or
agreement under which any person has or may in any circumstances
have or acquire the right to subscribe for or purchase any share
or loan capital of the Company or to convert any stock or share or
security into share capital or into share capital of a different
class.
14.2 Attorneys: The Company has not given any power of attorney or any
other authority (express, implied or ostensible) which is still
outstanding or effective to any person to enter into any contract
or commitment or do anything on its behalf (other than any
authority of employees to enter into routine trading contracts in
the normal course of their duties) nor will it do so prior to
Completion.
14.3 Officers: Since the Last Accounting Date no appointments or
removals of any officers of the Company have been made.
14.4 Ultra Xxxxx Contracts: To the best of the Vendors' knowledge and
belief none of the activities or contracts or rights of the
Company is ultra xxxxx, unauthorised, invalid or unenforceable or
in breach of any contract or covenant.
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SCHEDULE 3
(clause 7.4)
1. Warranty Limitations: Notwithstanding any other provisions of this
Agreement, the Vendors shall not be liable in respect of any Proceedings
or Costs for breach of any of the Warranties or other breach of this
Agreement:
1.1 Notice: Unless, promptly after the Purchaser becomes aware or ought to
have become aware of any breach, they shall have received from the
Purchaser written notice containing full details of the relevant
Proceedings including, if practicable, the matter or default which gives
rise to the Proceedings, the breach that results and the amount claimed
in respect of the Proceedings:
1.1.1 Other than Taxation: In the case of any of the Warranties other
than Warranties in relation to Taxation], within a period of 2
years after Completion; or
1.1.2 Taxation: In the case of any of the Warranties in relation to
Taxation, within a period ending the earlier of the date 7 years
after Completion and the date falling six weeks after the date on
which any relevant statutory limitation period in the jurisdiction
relevant to the Taxation Proceedings shall expire;
and (unless the relevant Proceedings shall have been withdrawn or
satisfied) action in a court of competent jurisdiction in respect of such
breach shall have been commenced within 1 year after receipt of such
notice;
1.2 Aggregate of Warranties to Exceed Specified Amount: Unless the aggregate
amount of the liability of the Vendors for all such Costs and Proceedings
exceeds $5,000;
1.3 Limit for Single Proceedings: Unless, in respect of any single breach of
any of the Warranties, the amount of the liability of the Vendors such
Costs and Proceedings in respect of such breach exceeds $1,000;
1.4 Exclusion where Covered by Insurance: If and to the extent that (after
taking account of related costs and any normal excess in such policy)
recovery is made by the Purchaser or the Company under any policy of
insurance effected by or for the benefit of the Company in respect of any
of the subject matters of such Proceedings;
1.5 Exclusion where Recovery under Another Agreement: If and to the extent
that those Proceedings or Costs occasioned thereby has been recovered
under any other agreement entered into between the parties and vice
versa;
1.6 Provisions Made in Account: If and to the extent that proper provision or
allowance therefor has been made in the Accounts;
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1.7 Subsequent Changes: If and to the extent that such Proceedings and any
Costs in connection therewith arise or is increased as a result of:
1.7.1 Any alteration in rates of Taxation after the date of this
Agreement with retrospective effect or the withdrawal after the
date of this Agreement of any published extra-statutory concession
or the alteration after that date of any published statement of
practice of the relevant revenue authority; or
1.7.2 The passing of, or any change in, any legislation after the date
of this Agreement; or
1.7.3 Any change in accounting policy or practice of the Company after
Completion including any changes in methods or practices in
relation to stock valuation;
1.7.4 Any voluntary act or omission or transaction of the Purchaser or
the Company after Completion otherwise than in the ordinary course
of the Company's business as carried on at the date of this
Agreement including (without limitation):
(a) The payment of any unusual or abnormal dividend by the
Company;
(b) A change of the date up to which the Company makes up its
Statutory Books;
(c) The cessation of any business carried on by the Company;
1.8 Liability Disclosed: If and to the extent the facts, matters or
circumstances giving rise to the breach are referred to in the Disclosure
Letter or any document disclosed with the Disclosure Letter or in any
document disclosed to the Purchaser or any officer of or professional
adviser to the Purchaser in relation to this Agreement or the matters
contemplated herein or in the Accounts;
1.9 Utilisation of Taxation Relief: In the case of a Proceedings arising in
connection with a payment of Taxation, if and to the extent that such
payment could have been avoided by the utilisation of trading losses or
other reliefs from Taxation (other than trading losses, or other reliefs
arising after the Last Accounting Date) available to the Company;
1.10 Over Provision in Accounts: If and to the extent that there is any over
provision in respect of any matter included in the Accounts;
1.11 Publicly Available Information: If and to the extent that such matters
giving rise to the Proceedings would be disclosed by a search of any
publicly available register or database including without limitation at
the Companies Office, the Land Transfer Office, the High Court Chattels
Registry, the Motor Vehicle Securities Registry, the offices of the
relevant local authority, or any patent office or trade xxxx registry
(whether in New Zealand or elsewhere);
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1.12 Pursuant to Agreement: If and to the extent that such matter giving rise
to the Proceedings properly fails to be done in implementing the terms of
this Agreement;
2. Limitations Separate and Independent: For the avoidance of doubt each of
the above paragraphs of this Schedule shall be construed as being
separate and independent and none of them shall be construed as limiting
the effect of any other.
3. Recovery from Third Party: If the Vendors pays an amount pursuant to a
Proceedings in respect of breach of any of the Warranties and the Company
or the Purchaser has a right of reimbursement against any person other
than the Company in respect of or relating to those Proceedings, the
Company or the Purchaser shall (subject to the Company or the Purchaser,
as the case may be, being indemnified to its reasonable satisfaction by
the Vendors against all reasonable Costs) take all reasonable steps or
proceedings to enforce such right. If the Purchaser subsequently recovers
such reimbursement from such third party, the Purchaser shall forthwith
repay to the Vendors such part of the amount paid by the Vendors by way
of damages for breach of that Warranty as equals the amount of the which
is so recovered by the Purchaser in respect of the facts, matters or
circumstances giving rise to the breach of that Warranty (after taking
account of the Costs of recovery and (if appropriate) any Taxation
arising solely as a result of the recovery).
4. Conduct of Proceedings by Vendors: The Purchaser shall give and shall
procure that the Company shall give, to the Vendors full facilities to
investigate any Proceedings and the extent of possible liability under
the Warranties and at the request of the Vendors shall (subject to the
Purchaser being indemnified as to any reasonable Costs which may be
incurred thereby) allow it at its own expense to participate in, or have
the conduct of (as the Vendors may elect), all proceedings of whatsoever
nature against the relevant third party arising out of, or in connection
with such Proceedings or dispute, in the name of the Company or the
Purchaser as it may consider necessary in order to mitigate any
Proceedings or Costs arising under this Agreement. Neither the Purchaser
nor the Company shall accept or pay or compromise any such liability or
Proceedings as is referred to above without the Vendors either consenting
to such action or having a reasonable opportunity to resist the same.
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SCHEDULE 4
(clauses 9.1.4 and 9.1.6)
No Licensors and Contractors consents to transfer of shares are required.
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ANNEXURES
A: Service Agreement (clause 4.1.4)
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April 3, 1997
INDUSTRIAL COMMUNICATIONS SERVICE LTD
a subsidiary of
XXXXXXX INVESTMENTS (NZ) LIMITED
SALARIED EMPLOYMENT CONTRACT
NAME: Xxxxx Xxxxxx
--------------------------------------------
POSITION: General Manager
--------------------------------------------
RESPONSIBLE TO: ICS Board
--------------------------------------------
LOCATED AT: 0/000 Xxxxxx Xx, Xxxxxxx
--------------------------------------------
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INDUSTRIAL COMMUNICATIONS SERVICE LTD
SALARIED EMPLOYMENT CONTRACT
BETWEEN: INDUSTRIAL COMMUNICATIONS SERVICE LTD
--------------------------------------------
AND XXXXX XXXXXX
--------------------------------------------
COMMENCEMENT
OF EMPLOYMENT: 1st May 1978
--------------------------------------------
The terms and conditions contained herein supersede and replace any terms and
conditions of employment that may have applied prior to the coming into force of
this contract.
1. DUTIES/RESPONSIBILITIES
A copy of your job description as attached outlines your duties and
responsibilities of your position. Because of the changing nature of the
business, other duties will be included as agreed between the parties from time
to time. It is expected that those duties will be performed in accordance with
the instructions of the Company and that you will devote all of your normal
working hours and best endeavour to performing these duties outlined in a manner
which will promote the interest of the company.
2. HOURS OF WORK
2.1 Your hours of work are a minimum of 40 per week to be worked on 5 days of
the week Monday to Friday inclusive, between the hours of 8 am to 5.30 pm. Your
hours of work and any conditions relating to them may be varied by mutual
agreement.
2.2 The Company may require you to work more than 40 hours per week to fulfil
the responsibilities of your position. Payment for such time worked in excess of
the weekly hours have been included in your salary package.
You may be required to work on Saturday or Sunday as required from time to
time by the Company.
2.3 Rest periods and meal breaks may be taken at your discretion, of up to 1
hour per day.
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3. REMUNERATION
(a) Total package is $115,000 OTE per annum.
(i) Your base salary is $60,000 per annum.
Your base salary will be reviewed annually.
(ii) Variable Component - Where you reach your budgeted targets approved
by the company, you will receive the agreed commission on a quarterly
basis (refer BONUS)
or
(iii) Motor Vehicle Allowance - You shall be paid an annual Motor Vehicle
Allowance of $12,000 gross per annum
[with company fuelcard provided]
(b) Expenses - Expenses incurred by yourself while performing our business
shall be reimbursed according to the Company Expenses Policy.
(c) Medical Insurance - You are invited to take advantage of the
Xxxxxxx/Southern Cross Group Scheme.
4. PAYMENT OF REMUNERATION
(a) Base salary will be paid each Wednesday, direct into the bank account of
your choice.
(b) Your variable component shall be paid on the 20th of the month due, or the
following Wednesday thereafter. Such payment shall be made by direct credit
to the bank of your choice.
(c) The vehicle allowance shall be paid weekly, included with your salary
payment, and paid by direct credit as above.
(d) No deduction shall be made from your salary without your consent, except
for time lost through sickness or default or accident to yourself, unless
required by law.
(e) The Company will provide you with a statement of your earnings and
deductions for a pay period at your request or where there is any change to
your salary payments.
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5. BONUS
The bonus will be paid quarterly, no later than 30th of the month after the end
of the quarter. It will be paid direct to the nominated bank account. One half
will be related to BKI profit, the other to ICS profit. Bonus will be calculated
on a straight line basis between these points.
Base Target
BKI $0 $TBA
ICS $0.5m $0.85m
Where the maximum is not achieved in any quarter, it is carried forward until
paid out or the end of the financial year is reached. No bonus will be carried
forward to a new financial year.
6. STATUTORY HOLIDAYS
(a) Public holidays shall be granted and observed in accordance with the
provisions of the Holidays Xxx 0000.
(b) Any time worked on a statutory holiday that has been authorised by your
manager shall be taken in lieu on a day that is mutually agreed upon and
credited to your annual holiday accumulation.
7. ANNUAL HOLIDAYS
(a) Annual holidays are provided in accordance with the provisions of the
Holidays Xxx 0000 and its amendments.
(b) At the completion of 12 months current continuous employment, you shall be
entitled to an annual holiday of 3 weeks. Where your employment is
terminated at the end of a period of employment which is less than one
year, the Company shall pay you an amount equal to 6% of your gross taxable
earnings, minus any holiday pay you have already received. Requests for
annual leave must be submitted for approval at least 30 days in advance.
(c) Service Holiday - Where you have completed 5 years current continuous
service you shall become entitled to an annual holiday of 4 weeks instead
of the 3 weeks provided for in (b) above.
8. SICK LEAVE AND DOMESTIC LEAVE
(a) After completing 6 months current continuous service you shall be entitled
to sick pay of 7 days for the following 12 month period and for each
subsequent year of service thereafter.
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Sick pay shall be accumulative to up to 21 days.
(b) The company may, at its discretion, require you to provide a medical
certificate for any sick leave or domestic leave absence. You shall be
required to provide a medical certificate where you are absent for more
than 2 days for sick leave or domestic leave absence.
(c) You shall ensure notice is given to us that you are sick or taking domestic
leave, not later than one hour prior to your normal commencing time and you
shall notify us as soon as possible when a return to work is likely.
(d) The Company shall also have the right to require you to produce
additionally, a medical certificate at our expense, from a doctor nominated
by ourselves.
(e) Domestic Leave - Where you have any unused sick leave entitlement, leave of
up to 7 days per year shall be granted where you find it essential to stay
at home in an emergency in the event of illness of a dependant child or
spouse's illness or dependant parent or maternity confinement. Such leave
shall be treated as though it was due to your own sickness and this shall
be set off against your own sick leave entitlement.
(f) Sick leave and domestic leave will not be paid on a day on which a holiday
is being observed.
(g) Your manager may at their discretion grant additional sick leave or
domestic leave with/without pay where special circumstances exist.
9. BEREAVEMENT LEAVE
(a) In the event of the death of any of your immediate family, ie your spouse
or defacto partner, child, stepchild, parent, brother, sister,
mother-in-law, father-in-law, brother-in-law, sister-in-law, grandparent,
or grandchild, the Company shall allow paid leave up to a maximum period of
3 days on each occasion. The Company may, at our discretion, ask you for
confirmation of the bereavement.
(b) The company may at its discretion, grant additional leave without pay where
the Company consider special circumstances exist.
10. SPECIAL HOLIDAYS CLAUSE
Note that the entitlements in Clauses 7 and 8 are inclusive of and not in
addition to the entitlements for Special Leave provided in Section 30 (A) of the
Xxxxxxxx Xxx 0000 and amendments.
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11. UNPAID LEAVE
Where you need to be away from work for personal reasons the company may grant
limited time off work without pay. Such leave must be authorised by the company
in advance. Please make a request for such leave as far ahead of the intended
date as possible and talk to your manager regarding the circumstances for the
leave. Such approved leave must be recorded on an official leave application
form.
12. PARENTAL LEAVE
Parental Leave shall be granted in accordance with the provisions of the
Parental Leave and Employment Protection Xxx 0000 and its amendments.
13. JURY SERVICE
(a) Where you are obliged to undertake jury service, the difference between the
fees (excluding reimbursing payments) paid by the Court and your salary
shall be made up by ourselves provided:
(i) That you produce the Court expenses voucher to us.
(ii) That you return to work immediately on any day that you are not
actually serving on a jury.
(b) These payments shall be made for up to a maximum of 5 days in respect of
each separate period of jury service.
(c) You must advise us on the first normal work day after notification of jury
service is received.
14. TUITION LEAVE
(a) Where, with the Company's prior written approval, you attend any
job-related course during working hours, you shall be allowed paid time
off. Where you pass all the necessary requirements and complete the course,
the company may reimburse you for the cost of tuition and examination fees.
(b) Where you initiate and take tuition leave at your own request and where you
terminate your own employment within 12 months of having the tuition fees
or examination fees paid on your behalf, you shall reimburse the Company
for fees outlaid on a pro rata basis.
15. TERMINATION OF EMPLOYMENT
(a) Notification - Employment may be terminated with 1 months notice by either
party or where the employment is terminated by either party without notice
1 months pay shall be paid or forfeited in lieu of notice. This provision
shall not prevent us from summarily terminating the employment in the case
of serious misconduct and/or serious breach of contract.
(b) Deductions -
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(i) Where company issued gear or property is lost, or in our opinion
wilfully damaged it will be treated as a default by yourself and the
Company shall have the right to recover from you the cost of
repairing or replacing any such items.
(ii) Where employment is terminated by either party and the effective last
day of duty is prior to the normal pay period end date, the Company
shall be entitled to deduct or recover such salary paid in advance.
(c) Redundancy -
(i) In the event that your position becomes surplus to the needs of the
Company, you shall be given notice of termination in accordance with
the provisions of subclause 14(a).
(ii) Redundancy compensation shall be calculated on the basis of four
weeks pay for the first year of service with the Company and two
weeks pay for each subsequent year of service. For the purposes of
this clause, a week's pay shall be 1/52 of your annual salary.
(iii) No redundancy compensation shall be payable in any situation where
the termination of your employment arises as a result of the sale or
transfer of the whole or part of the Company's business if the person
acquiring the business or part being sold or transferred has offered
you employment in the business or part being sold or transferred and
the conditions of employment offered to you by the person acquiring
the business or the part of the business being sold or transferred
are similar to, or more favourable than, those provided for by this
contract, or are otherwise acceptable to you.
16. RESTRAINT OF TRADE
(a) In order to protect the employer's proprietary interests, for one year
after the termination of this contract you shall not engage to work for or
on behalf of an organisation in direct competition with this Company, nor
establish your own business in competition with this Company. Nor shall you
solicit in competition with the Company the custom of any person who has at
any time during the period of your employment by the Company been a
customer of the Company or who will become a customer of the Company as a
result of any tender, negotiations, arrangements or proceedings made or
taking place at the date of such termination.
(b) Consideration for this restraint is included in the remuneration package
provided in clause 3 of this contract.
(c) It is acknowledged that in view of your position with the Company and your
direct association with the customers of the Company during your
employment, the restraint provided for in subclause (a) is fair and
reasonable and does not inhibit your ability to earn a reasonable living.
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DRAFT
17. CONFIDENTIALITY
Any trade, professional or other like information of a confidential nature
gained by the employee during the course of employment shall not without the
specific authority of the employer, be passed on to any person who would be in a
position to use such information to the detriment of the employer. Nor must it
be used for personal gain. Any secrecy agreement entered into by the company
with a third party whether prior or after starting employment is binding on all
employees. This condition is also binding after the termination of the
employment contract.
18. PERSONAL GRIEVANCE/DISPUTES
The Company consider it desirable that any dispute over the interpretation,
application or operation of this contract or any grievance of any employee be
resolved as quickly as possible, at the place of work, between ourselves.
Personal grievances and disputes shall be as defined under the Employment
Contracts Xxx 0000. Personal Grievance procedures shall be in accordance with
the First Schedule of the Employment Contracts Xxx 0000. Disputes procedures
shall be in accordance with the Second Schedule of the Employment Contracts Xxx
0000.
19. VARIATIONS
Any of the terms and conditions contained in this contract may be varied by
mutual agreement.
20. OTHER PROVISIONS
(a) I agree to abide by all Company Policies as may from time to time be in
operation.
(b) I agree to work a reasonable number of hours in excess of my weekly hours
as may be required by the Company.
(c) I agree, in the event of termination of my employment to the deduction from
my final pay for any unreturned company property, or other debt owing to
the company, whatsoever it may be.
(d) I agree, during the period of my employment or at any time thereafter, not
to disclose to any unauthorised person or company, or otherwise make use
of, any confidential or secret information related to or obtained as a
result of my employment with the Company including, without limiting the
generality of processes, customer lists, formulae, designs, new products,
finances or relating to know-how, inventions, improvements or other matters
connected with the products or services manufactured, marketed, provided or
obtained by the Company.
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DRAFT
21. DECLARATION
I (full name) ______________________________________ declare that I have read
and understand the conditions of employment detailed above and accept them
fully. I further declare that I have read (or had explained to me to my
satisfaction) the House Rules and accept them.
Signed:________________________________ Date: _______________________
Signed:________________________________ Date: _______________________
FOR AND ON BEHALF OF
INDUSTRIAL COMMUNICATIONS SERVICE LTD
Enclosed: Job Description
House Rules
E-109
B: Form of Escrow Agreement (clause 1.1)
E-110
FORM C
ESCROW AGREEMENT
(PERFORMANCE ESCROW AGREEMENT)
THIS AGREEMENT made in triplicate this 31st day of March, 1997.
AMONG:
XXXXXXX INVESTMENTS LTD. a corporation incorporated pursuant to the
laws of the Province of Alberta,
(hereinafter called the "Issuer")
OF THE FIRST PART
-and-
MONTREAL TRUST COMPANY OF CANADA, a body corporate duly authorized to
carry on business in the Province of Alberta,
(hereinafter called the "Trustee")
OF THE SECOND PART
-and-
XXXXX XXXXX XXXXXX and XXXXX XXXXX XXXXXX, XXXXX XXXXXXXX XXXXXX AND
XXXXX XXXXXXX XXXXXXX AS TRUSTEES OF RH AND XX XXXXXX FAMILY TRUST,
both of Auckland, New Zealand
(hereinafter called the "Security Holders")
OF THE THIRD PART
WHEREAS the Security Holders and the Issuer entered into an agreement dated
the 31st day of March, 1997 whereby the Security Holders agreed to sell certain
property to the Issuer, the consideration for such property being at least in
part the allotment of securities in the Issuer to the Security Holders, the
property and the number of securities and the names of the Security Holders
presently owning or about to receive such securities being respectively and more
particularly described in Schedule "A" attached to and forming part of this
agreement.
AND WHEREAS the Trustee has agreed to undertake and perform its duties
according to the terms and conditions thereof;
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the sum
of ONE DOLLAR ($1) paid by the parties to each other, receipt of this sum being
acknowledged by each of the parties, the Security Holders covenant and agree
with the Issuer and with the Trustee, and the Issuer and the Trustee covenant
and agree each with the other and with the Security Holders as follows:
E-111
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1. Where used in this Agreement, or in any amendment or supplement hereto,
unless the context otherwise requires, the following words and phrases shall
have the following ascribed to them below:
(a) "Cash Flow" means net income derived from the property, as shown on
the audited financial statements as verified by the Issuer's auditors,
adjusted for the following add-backs:
(i) depreciation;
(ii) depletion;
(iii) deferred taxes;
(iv) amortization of goodwill;
(v) amortization of research and development costs.
2. The Security Holders hereby place and deposit in escrow with the Trustee
those of his securities in the Issuer which are represented by the certificates
described in Schedule "A" and the Trustee hereby acknowledges receipt of the
certificate. The Security Holders agree to deposit in escrow any further
certificates representing securities in the Issuer which he may receive as a
stock dividend on securities hereby escrowed, and to deliver to the Trustee
immediately on receipt thereof the certificates for any such further securities
and any replacement certificates which may at any time be issued for any
escrowed securities.
3. The Parties hereby agree that, subject to the provisions of paragraph 6
herein, the securities and the beneficial ownership of or any interest in them
and the certificates representing them (including any replacement securities or
certificates) shall not be sold, assigned, hypothecated, alienated, released
from escrow, transferred within escrow, or otherwise in any manner dealt with,
without the written consent of The Alberta Stock Exchange (hereinafter referred
to as the "Exchange") given to the Trustee or except as may be required by
reason of the death or bankruptcy of any Security Holder, in which cases the
Trustee shall hold the said certificates subject to this Agreement, for whatever
person, or company shall be legally entitled to become the registered owner
thereof.
4. The Security Holders directs the Trustee to retain their respective
securities and the certificates (including any replacement securities or
certificates) representing them and not to do or cause anything to be done to
release them from escrow or to allow any transfer, hypothecation or alienation
thereof, without the written consent of the Exchange. The Trustee accepts the
responsibilities placed on it by the agreement and agrees to perform them in
accordance with the terms of this Agreement and the written consents, orders or
directions of the Exchange.
5. Any Security Holder applying to the Exchange for a consent for a transfer
within escrow shall, before applying, give reasonable notice in writing of his
intention to the Issuer and the Trustee.
6. (a) The Exchange will consent to the release from escrow of one share for
each $1.65 (Canadian) of Cash Flow generated by or from the property.
(b) Any release from escrow under this paragraph 6 shall be made pursuant
to a written application on behalf of the Issuer or the Security
Holders, which application shall be accompanied by evidence of the
Cash Flow received in a form satisfactory to the Exchange. Application
for release may only be made once per year and may only relate to Cash
Flow received in the last preceding fiscal year or the fiscal years of
the Issuer since the last release from escrow pursuant to this
Agreement, whichever is greater. All shares released
E-112
-3-
from escrow shall, unless otherwise directed by the Exchange, be
distributed pro-rata to all Security Holders.
(c) Notwithstanding subparagraph (b) above, the maximum number of shares
to be released from escrow in any year to a Security Holder shall be
one third of the original number of shares held in escrow on behalf of
such Security Holder.
7. A release from escrow of all or part of the escrowed securities shall
terminate this Agreement only in respect to those securities so released. For
greater certainty, this paragraph does not apply to securities transferred
within escrow.
8. If a dividend is declared while the Escrowed Shares or any of them continue
to be held in escrow under this Agreement, then the dividend or the Escrowed
Shares shall be past to the trustee, who shall hold the dividend in escrow or
the same terms as the Escrowed Shares, divided to be subject to release or
return to the Corporation in the same manner as the Escrowed Shares to which the
divided is attributed.
9. If the Issuer is wound up and any securities remain in escrow under this
Agreement at the time when a distribution of assets to holders of securities is
made by the liquidator, the Security Holders shall assign their right to receive
that part of the distribution which is attributable to the escrowed securities
to the Trustee, for the benefit of, and in trust for the persons and companies
who are then holders of free securities in the Issuer rateably in proportion to
their holdings except that this section shall nor apply to those of the escrowed
securities which are or would be entitled to be released pursuant to paragraph 6
but have not yet been so released.
10. (a) In the event that the Issuer has lost, alienated or has not obtained a
good and marketable title to, or has abandoned or discontinued
development of, a substantial portion or all of the aforesaid property
which was or formed part of the consideration for which the aforesaid
securities were issued, or that a substantial portion or all of the
said property has become of little or no value, the issuer shall
declare the occurrence of that event, with full particulars thereof,
to the Exchange by a resolution of its directors, and those Security
Holders who are directors from time to time hereby agree to cause such
resolution to be passed and certified to the satisfaction of the
Exchange.
(b) The Security Holders agree with the Issuer and the Trustee that in the
event of any such loss, alienation, failure to acquire title, or of
such abandonment or discontinuance of development or diminution of
value, the securities held in escrow shall not be cancelled or
released from escrow, in whole or in part, except with the consent of
the Exchange.
(c) The Exchange may, in its sole discretion, having regard to the number
and value of the securities issued for the property, the value of the
property as ultimately established and such other circumstances as it
may consider relevant, determine the number of securities to be
cancelled or released and shall communicate its decision in writing to
the Trustee. If the Exchange determines that less than all of the
securities then held in escrow shall be cancelled or released, the
securities to be cancelled or released shall be taken rateably from
the escrowed security holdings of the Security Holders, unless the
Exchange otherwise directs or the Security Holders, with the consent
of the Exchange, otherwise agree in writing;
E-113
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(d) On receipt by the Trustee of a determination to cancel, the Security
Holders shall tender the required number of escrowed securities to the
Issuer by way of gift for cancellation and, the
Issuer shall thereupon take the necessary action, by way of reduction
or capital or otherwise, to cancel them, and the certificates for
these securities shall be delivered up for cancellation by the
Issuer's transfer agent;
(e) The Security Holders undertake and agree to vote and cause to be voted
its securities in a manner consistent with the terms, conditions and
intent of this Agreement in relation to the aforesaid gifting back of
securities for cancellation.
(f) In the case of a natural resource issuer, the Exchange may, in its
sole discretion, permit the substitution of natural resource
properties for those properties set forth in Schedule "A" in
calculating the amount of deferred expenses in paragraph 6.
11. Notwithstanding paragraphs 6 and 10, any shares remaining in escrow 3 months
after the third anniversary of the date of this Agreement, unless otherwise
exempted in writing by the Exchange, shall be cancelled by the Trustee within 6
months of the said third anniversary.
12. All voting rights attached to the escrowed securities shall at all times be
exercised by the respective registered holders thereof.
13. The Security Holders hereby agree to and do hereby release and indemnify and
save harmless the Trustee from and against all claims, suits, demands, costs,
damages and expenses which may be occasioned by reason of the Trustee's
compliance in good faith with the terms hereof.
14. The Issuer hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance and to pay
the Trustee's proper charges for its services as Trustee of this escrow.
15. If the Trustee should wish to resign, it shall give at least 6 months'
notice to the Issuer which may, with the written consent of the Exchange, by
writing appoint another trustee in its place and such appointment shall be
binding on the Security Holders, and the new Trustee shall assume and be bound
by the obligations of the Trustee hereunder.
16. The covenants of the Security Holders with the Issuer in this Agreement are
made with the Issuer both in its own right and as trustee for the holders from
time to time of free securities in the Issuer, and may be enforced not only by
the Issuer but also by any holder of free securities.
17. This Agreement may be executed in several parts of the same form and the
parts as so executed shall together constitute one original agreement, and the
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this Agreement.
18. Wherever the singular or masculine is used, the same shall be construed to
include the plural or feminine or neuter where the context so requires.
19. This Agreement shall enure to the benefit of and be binding on the Parties
to this Agreement and each of their heirs, executors, administrators, successors
and assigns.
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IN WITNESS WHEREOF the Issuer, the Trustee and the Security Holder have
caused their respective corporate seals or hands to be hereto affixed.
XXXXXXX INVESTMENTS LTD.
Per: __________________________________
MONTREAL TRUST COMPANY OF CANADA
Per: __________________________________
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
------------------------------------- )--------------------------------------
WITNESS )XXXXX XXXXX XXXXXX
XXXXX XXXXX XXXXXX, XXXXX XXXXXXXX
XXXXXX AND XXXXX XXXXXXX XXXXXXX AS
TRUSTEES OF RH AND XX XXXXXX FAMILY
TRUST
Per: __________________________________
E-115
SCHEDULE "A"
to agreement dated the 31st day of March, 1997, and made among XXXXXXX
INVESTMENTS LTD, (therein called the "Issuer"), MONTREAL TRUST COMPANY OF
CANADA, (therein called the "Trustee"), and some Security Holders of the Issuer
(therein called the "Security Holders").
CERTIFICATE
NAME OF NUMBER OF NUMBER OF
SECURITY TYPE OF SECURITIES SECURITIES
HOLDER SECURITIES ESCROWED ESCROWED
--------------------------------------------------------------------------------
Xxxxx Xxxxx Xxxxxx Common Shares 149,058 as provided by the
transfer agent
Xxxxx Xxxxx Xxxxxx,
Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx Xxxxxxx Xxxxxxx
as trustees of RH and XX
Xxxxxx Family Trust Common Shares 611,442 as provided by the
transfer agent
DESCRIPTION OF PROPERTY
Shares of Industrial Communications Service Ltd.
E-116
