Exhibit 10.17
Asset Sale Agreement
between
Comdisco Australia Pty Limited
(ACN 002 997 453)
and
Comdisco New Zealand
(AK/484103)
and
Nadlo Pty Limited
(ACN 100 125 871)
Codis Limited
(AK/1202358)
and
Rellim Pty Limited
(ACN 100 125 933)
Baker & Mc.Kenzie
Solicitors
Level 26, AMP Centre Level 39, Rialto
50 Bridge Street 525 Collins Street
SYDNEY NSW 2000 MELBOURNE VIC 3000
Tel: (02) 9225-0200 Tel: (03) 9617-4200
Fax: (02) 9225-1595 Fax: (03) 9614-2103
Contents
Clause
number Heading Page
1. Definitions & interpretation 1
1.1 Definitions 1
1.2 Interpretation 10
1.3 Payments 11
1.4 Amounts expressed in New Zealand dollars 11
2. Sale and purchase of Assets 12
2.1 Sale and purchase of Business Assets 12
2.2 Deleted 12
2.3 New Zealand goods and services tax 12
2.4 Australian goods and services tax 12
2.5 Reimbursement 13
3. Calculation and payment of the purchase price 13
3.1 Calculation of Business Purchase Price 13
3.2 Deleted 14
3.3 Deleted 14
3.4 Deleted 14
4. Condition 14
4.1 Condition 14
4.2 Termination for failure of condition 14
5. Pre-completion 15
5.1 Business to be conducted in ordinary course 15
5.2 Access by Purchaser and its representatives 16
5.3 Access by Vendor and its representatives 16
6. Completion 16
6.1 Time and place of completion 16
6.2 Property and risk to pass 17
6.3 Obligations of Purchasers on completion 17
6.4 Obligations of Vendors on Business Completion 17
6.5 Deleted 19
6.6 Late completion 19
6.7 Notice to complete 19
7. Completion Statement 20
7.1 Completion Statement 20
7.2 Auditor's certificate 20
7.3 Purchaser's obligation to disclose 20
7.4 Review by Purchaser of Completion Statement 20
7.5 Notification of disputes on Completion Statement 20
7.6 Dispute Resolution 21
7.7 Selection of Expert 21
7.8 Adjustment to Business Purchase Price 22
8. Employees 22
8.1 Offers of employment 22
8.2 Vendors' obligations to Transferred Employees 23
8.3 Purchaser's obligations to Transferred Employees 23
8.4 Vendor's Allowance for Accrued Entitlements 23
8.5 Employees not accepting Purchaser's Offer 23
9. Superannuation 23
9.1 Purchaser's plan 23
10. Accounts Receivable 24
10.1 General 24
10.2 Collection for limited period 24
10.3 Legal proceedings 24
10.4 Identification of payments 24
10.5 Reimbursement of sums received 24
11. Contracts and Miscellaneous Assets 25
11.1 Assignment and novation 25
11.2 Deleted 25
11.3 Purchaser's obligations after Business Completion 25
11.4 Deleted 25
11.5 Breaches prior to completion 25
11.6 Breaches after completion 26
12. Deleted 26
13. Deleted 26
14. Use of Intellectual Property 26
15. Confidentiality and announcements 28
15.1 Provisions to remain confidential 28
15.2 Permitted disclosures 28
15.3 Announcements 28
15.4 Return of information etc in the event of termination 28
15.5 Survival of obligation 28
16. Notices 29
16.1 Requirements 29
16.2 Receipt 30
17. General Provisions 30
17.1 Costs 30
17.2 Non-merger 30
17.3 Effect of termination 30
17.4 Indemnities 31
17.5 Waiver and exercise of rights 31
17.6 Amendment 31
17.7 Counterparts 31
17.8 Further assurances 31
17.9 Assignment 32
17.10 Deleted 32
17.11 Rights cumulative 32
17.12 Consents and Approvals 32
17.13 Jurisdiction 32
17.14 Service of process 32
17.15 Governing Law 32
Annexure 1 Deleted 35
Annexure 2 Deleted 36
Annexure 3 Part 1 37
First Vendor 37
Part 2 38
Second Vendor 38
Annexure 4 Business Purchase Price Allocation 39
Annexure 5 Real Properties and Property Leases 40
Annexure 6 Officers and employees 41
Annexure 7 Completion Agreements 42
Asset Sale Agreement
This Agreement is made on 8 April 2002
Between
Comdisco Australia Pty Limited (ACN 002 997 453) of 99 Walker Street, North
Sydney NSW (the "First Vendor");
and
Comdisco New Zealand (AK/48103) of 92-96 Albert Street, Auckland, New
Zealand (the "Second Vendor");
and
Nadlo Pty Limited (ACN 100 125 871) of Level 24, Gateway Building, 1
Macquarie Place, Sydney, NSW ("OpCo Aust");
and
Codis Limited (AK/1202358) of Level 23-29 Albert Street, Auckland, New
Zealand ("OpCo NZ");
and
Rellim Pty Limited (ACN 100 125 933) of Level 24, Gateway Building, 1
Macquarie Place, Sydney, NSW ("InvestCo")
Recitals
A. The Vendors carry on the Business and own the Business Assets and
Miscellaneous Assets.
B. The Vendors wish to sell and the Purchasers wish to purchase the
Business Assets and Miscellaneous Assets on the following terms and
conditions.
Operative provisions
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1. Definitions & interpretation
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1.1 Definitions
In this Agreement, unless the context otherwise requires:
"$" means Australian dollars;
"Accounting Standards" means for the First Vendor:
(a) the accounting standards applicable for the purposes of the
Corporations Act 2001;
(b) the requirements of the Corporations Act 2001 for the preparation and
content of financial reports, director's reports and auditor's
reports; and
(c) generally accepted and consistently applied accounting principles and
practices in Australia, except those inconsistent with the standards
or requirements referred to in paragraphs (a) and (b);
and for the Second Vendor the accounting standards required by the
Financial Reporting Act 1993 and generally accepted accounting principles
in New Zealand;
"Accounts" means:
(a) the First Vendor's:
(i) unaudited profit and loss statement for the period of 12 months
ending on 30 September 2001; and
(ii) unaudited balance sheet and statement of cash flows as at 30
September 2001; and
(b) the Second Vendor's:
(i) unaudited profit and loss statement for the period of 12 months
ending on 30 September 2001; and
(ii) unaudited balance sheet and statement of cash flows as at 30
September 2001;
"Accounts Receivable" means all trade debts and other rights to payment
arising from the operation of the Business that are due before the Business
Completion Date but not paid by the Business Completion Date;
"Auditor's Certificate" means the certification by the Vendor's auditor
that to the best or his or her knowledge, the Completion Statement is true
and correct;
"Aust Business Assets" means the Business Assets other than the NZ Business
Assets.
"Authorisation" means:
(a) any authorisation, approval, licence, permit, consent, qualification,
accreditation, filing, registration, certificate, resolution,
direction, declaration, or exemption; and
(b) for anything which a Government Agency may prohibit or restrict within
a specified period after it is notified, the expiry of that period
without intervention or action by that Government Agency;
"Books and Records" means originals and copies in machine readable or printed
form of all registers, books, reports, correspondence, files, records,
accounts, documents and other material, in the possession or control of the
Vendors, about or used in connection with the Business Assets, Miscellaneous
Assets and/or the Transferred Employees;
"Business" means the business carried on by the Vendors of computer brokerage,
being the buying, selling and leasing of computer equipment (and associated
hardware and equipment and software used by Lessees) in Australia and New
Zealand, as at the date of this Agreement;
"Business Accrual Amount" means the total of:
(a) all deposits and prepayments (inclusive of GST) received by the Vendors
up to and including the Business Completion Date, for the supply of
products or services by the Business after the Business Completion Date
and where the liability for the supply passes to the Purchaser under the
Contracts; and
(b) all expenses and outgoings of the Business (inclusive of GST) incurred
but not paid by the Vendors for the period prior to the Business
Completion Date, other than in respect of the Lease Assets,
but excluding the Employee Entitlements Amount and the Lease Accrual Amount as
at the Business Completion Date;
"Business Assets" means:
(a) the Inventory;
(b) the Goodwill;
(c) the Books and Records;
(d) the Contracts;
(e) the right, title and interest of the Vendors in the Property Leases; and
(f) the Plant and Equipment,
as at the Business Completion Date but does not include any Excluded Assets or
Lease Assets or any Miscellaneous Assets referred to in paragraphs (a), (b) or
(c) of the definition of Miscellaneous Assets;
"Business Completion" means completion of the sale and purchase of the
Business Assets and Miscellaneous Assets under clause 6 of this Agreement;
"Business Completion Agreements" means those agreements set out in Annexure 7,
Part A;
"Business Completion Date" means the earlier of:
(a) a date nominated by the Vendors by giving 5 Business Days' written notice
to the Purchasers, which date must be between the fifth Business Day
after which the Condition has been satisfied and 60 days after the date
on which the Condition has been satisfied; and
(b) the Business Day after 60 days after the date on which the Condition has
been satisfied;
or such other date as may be agreed by the parties where such agreement is
made on or before 60 days after the date on which the Condition has been
satisfied.
"Business Day" means a day that is not a Saturday, Sunday or a public holiday
or bank holiday in Sydney;
"Business Purchase Price" means $721,200, subject to adjustments pursuant to
clause 7.8;
"Claim" means any claim, cost, damages, debt, expense, Tax, Liability, loss,
allegation, suit, action, demand, cause of action or proceeding of any kind
irrespective of:
(a) how or when it arises;
(b) whether it is actual or contingent;
(c) whether or not it is in respect of legal or other costs, damages,
expenses, fees or losses;
(d) whether or not it is in respect of a breach of trust or of a fiduciary or
other duty or obligation; and
(e) whether or not it arises at law or in any other way;
"Completion Statement" means a statement setting out each of the following
amounts:
(a) the Business Purchase Price;
(b) the Prepayments Amount;
(c) the Employee Entitlements Amount;
(d) the Business Accrual Amount;
(e) any adjustment necessary to the Business Purchase Price, under clause
7.8,
and includes, where appropriate, an adjusted Completion Statement following a
determination by the Expert under clause 7.6;
"Computer Software" means all originals and copies of all computer software
(together with all related source code, object code, manuals and
documentation) owned by the Vendors and used in connection with the Business;
"Condition" means the condition set out in clause 4.1;
"Confidential Information" means all:
(a) know-how, trade secrets, ideas, concepts, technical and operational
information;
(b) information concerning the affairs or property of the Business or any
business, property or transaction in which the Business may be or may
have been concerned or interested;
(c) details of the customers of or suppliers to the Business;
(d) information about the business methods of the Vendors in the conduct of
the Business; and
(e) information which by its nature or by the circumstances of its
disclosure, is or could reasonably be expected to be regarded as
confidential to:
(i) the Vendors; or
(ii) any third party with whose consent or approval an owner of the
Business uses that information;
"Contracts" means the contracts and agreements relating to the Business to
which either of the Vendors is a party or by which either of the Vendors may
be bound as at Business Completion, set out in Parts 1 and 2 of Annexure 3 and
"Contract" means any one of them but excludes any Lease Account and any
Miscellaneous Asset referred to in paragraphs (a), (b) or (c) of the
definition of Miscellaneous Assets;
"Debtor" means a debtor of the Business;
"Disclosures" means the disclosures made by the Vendor under clause 13.4(a)
contained in the separate letter initialled by the parties at the date of
signing this Agreement; "Dispute Notice" means the written notice under clause
7.5(a) of any dispute about the Completion Statement;
"Dollars" and "$" means the lawful currency of Australia;
"Employees" means the employees of the Vendors engaged in the Business listed
in Annexure 6;
"Employee Entitlement Amount" means the total of:
(a) all wages, salaries, bonuses, commissions and other entitlements and
allowances of the Transferred Employees accrued but not payable, as at
the Business Completion Date;
(b) the aggregate monetary value of the annual leave entitlements of all
Transferred Employees accrued but untaken or unpaid as at the Business
Completion Date; and
(c) the aggregate of the long service leave of the Transferred Employees
actually accrued at the Business Completion Date;
"Excluded Assets" means:
(a) the Accounts Receivable;
(b) cash deposits with banks or other financial institutions or on hand;
(c) the Excluded Lease Accounts;
(d) the Retained Books and Records;
(e) any interest of the Vendors in the Intellectual Property Rights and the
Software; and
(f) any amount payable to the Vendors by a Related Body Corporate;
"Excluded Lease Accounts" means the contracts set out in Annexure 8 and the
assets in the possession of, owned by or in the control of and used by the
Vendors in the Business which are the subject to those contracts;
"Expert" means an independent firm of chartered accountants selected or
nominated under clause 7.6;
"Goodwill" means the goodwill of the Vendors in the Business including the
exclusive right of the Purchaser to represent itself as carrying on the
Business as the successor to the Vendors;
"Government Agency" means:
(a) a government, whether foreign, federal, state, territorial or local;
(b) a department, office or minister of a government acting in that capacity;
or
(c) a commission, delegate, instrumentality, agency, board, or other
governmental, semi-governmental, judicial, administrative, monetary or
fiscal authority, whether statutory or not;
"Income Tax Assessment Act" means the Income Tax Assessment Act, 1936 (Cth)
and the Income Tax Assessment Act, 1997 (Cth) of Australia;
"Insurance Contracts" means all contracts of insurance and indemnity in force
for the Business and the Business Assets and Miscellaneous Assets to which
either Vendor is a party obtained in the normal course of the Business;
"Intellectual Property Rights" means all rights of the Vendors as at Business
Completion in and to:
(a) the Trade Mark Licence Agreements; and
(b) all designs, patents, copyright, processes, methods, inventions, product
formulations, plant variety rights, eligible layout rights and other
intellectual property rights, owned or used by the Vendors in the
Business as at Business Completion (whether within or outside Australia);
"Interest Rate" means 5% per annum plus the rate charged by the Commonwealth
Bank of Australia to its prime corporate customers on the relevant day;
"Inventory" means the inventory listed or described in Annexure 3;
"Lease Accounts" means the Lease Documents relating to the Business to which
either of the Vendors is a party as set out in Annexure 2, or by which either
of the Vendors may be bound as at the Business Completion Date, but excludes
any contract or agreement included in the Excluded Assets or the Miscellaneous
Assets referred to in paragraphs (a), (b) and (c) of the definition of
Miscellaneous Assets;
"Lease Accrual Amount" means the total of:
(a) all deposits and prepayments (inclusive of GST) (including any pro-rated
lease payments received under Lease Accounts that are referrable to
periods after the Business Completion Date) received by the Vendors up to
and including the Business Completion Date in respect of those Lease
Accounts, for the supply of products or services by the business of the
Vendors after the Business Completion Date and where the liability for
the supply passes to the Purchaser under the Lease Accounts; and
(b) all expenses and outgoings of the business of the Vendors (inclusive of
GST) incurred but not paid by the Vendors for the period prior to the
Business Completion Date, in respect of the relevant Lease Assets;
"Lease Assets " means:
(a) the Lease Accounts, Lease Documents and Lease Records; and
(b) the Lease Property,
as at the Business Completion Date, but does not include any Excluded Assets
or Miscellaneous Assets referred to in paragraphs (a), (b) and (c) of the
definition of Miscellaneous Assets;
"Lease Documents" means the right, title and interest of each Vendor in and to
each Lease Account as evidenced by each:
(a) master lease agreement;
(b) equipment schedule;
(c) acceptance schedule;
(d) vendor invoice; or
(e) ancillary lease document;
"Lease Property" means the assets (including without limitation, software
comprised in a Lease Account) in the possession of, owned by, in the control
of or to which the Vendors are entitled and used by the Vendors in the
Business (other than the Real Properties and the Software) which are the
subject of the Lease Accounts as at the Business Completion Date;
"Lease Records" means instruments evidencing terms, title, files, receipts,
insurance policies, insurance premium receipts, ledger sheets, payment
records, correspondence, current and historical computerised data files and
other papers and records of whatever kind or description in respect of a Lease
Account;
"Lessee" means all persons who are a lessee to a Vendor (as lessor or a
successor assignee of the lessor) under a Lease Account;
"Liabilities" means all liabilities, whether actual or contingent, present or
future, quantified or unquantified or incurred jointly or severally with any
other person;
"Licence Agreement" means the licence agreement described in clause 14(b) in
relation to the name "Comdisco";
"Licensed Software" means software used by the Vendors in the Business, but
not owned by the Vendors;
"Miscellaneous Assets" means all of the Vendor's right, title and interest in:
(a) (Inertia leases / terminated leases) any asset leases to which either of
the Vendors is a party as lessor (relating to the Business but excluding
any Excluded Assets or Lease Accounts) where the term of the lease has
expired or has terminated;
(b) (Hire purchase agreements) hire purchase agreements to which either of
the Vendors is a party in relation to the Business;
(c) (Underlying assets) any assets which are the subject of leases referred
to in (a) above, or hire purchase agreements referred to in (b) above;
and
(d) (Remainder) any other assets in the possession of, owned by, in the
control of or to which the Vendors are entitled and used by the Vendors
in the Business (other than the Real Properties, the Software, the
Excluded Assets, the Business Assets and the Lease Assets);
"NZ Business Assets" means such of the Business Assets as are owned, in the
possession of, or controlled by the Second Vendor or to which the Second
Vendor is entitled;
"NZ GST" means goods and services tax or any like tax arising pursuant to the
Goods and Services Tax Act 1985 in the New Zealand context and where the
context is not expressly stated otherwise, GST shall be referred to in the New
Zealand context;
"Plant and Equipment" means the plant and equipment listed in Annexure 3;
"Prepayments Amount" means the amount, equal to the total of:
(a) prepaid expenses or outgoings of the Business (inclusive of GST) of a
recurring or periodical nature, paid by the Vendors prior to the Business
Completion Date, but relating to the period after the Business Completion
Date; and
(b) payments in advance and deposits (inclusive of GST) paid by the Vendors
for:
(i) goods ordered by the Business but not received prior to the Business
Completion Date; or
(ii) services contracted for but not provided to the Business prior to
the Business Completion Date;
the benefit of which will accrue to the Purchaser but which are not taken
into account in the calculation of the Business Purchase Price;
"Property Leases" means the real property leases and licences set out in
Annexure 5;
"Purchasers" means OpCo Aust, OpCo NZ and InvestCo, and "Purchaser" means any
one of them;
"Real Properties" means the properties the subject of the Property Leases;
"Related Body Corporate" has the same meaning as in section 50 of the
Corporations Act 2001 and in respect of New Zealand corporates means "Related
Company" having the same meaning as in section 2 of the Companies Act 1993 of
New Zealand;
"Retained Books and Records" means all Books and Records which the Vendor is
required to retain by law and any Books and Records relating to the items in
paragraphs (a), (b), (c), (e) and (f) of the definition of Excluded Assets;
"Security Interest" means an interest in an asset which provides security for,
or protects against default by, a person for the payment or satisfaction of a
debt, obligation or liability, including a mortgage, charge, bill of sale,
pledge, deposit, lien, encumbrance, hypothecation, assignment by way of
security, preferential right or trust arrangement, covenant, easement, profit
a prendre, claim or arrangement for the retention of title or any other
security arrangement having the same effect (other than an interest of a
Vendor under a Lease Account);
"Software" means the Computer Software and the Licensed Software other than
software comprised in a Lease Account;
"Tax" means a tax, levy, charge, impost, deduction, withholding or duty of any
nature (including stamp and transaction duty and GST, value added or similar
tax) at any time:
(a) imposed or levied by any Government Agency; or
(b) required to be remitted to, or collected, withheld or assessed by, any
Government Agency; and
any related interest, expense, fine, penalty or other charge on those amounts;
"Trade Mark Licence Agreements" means those trade mark licence agreements,
registered user agreements or appointments to which either of the Vendors is a
party;
"Transferred Employees" means Employees who accept the offer of employment
from OpCo Australia, or OpCo New Zealand, and are to be engaged by OpCo
Australia, or OpCo New Zealand (as appropriate) from the Business Completion
Date;
"Tyco Services Agreement" means Master Technology Services Agreement between
the First Vendor and Tyco Australia Pty Limited dated 19 September 2000 and
all schedules made under or associated with that agreement;
"Vendors" means the First Vendor and the Second Vendor and "Vendor" means any
one of them; and
"Vendors' Plan" means Comdisco Australia Pty Limited Superannuation Plan.
1.2 Interpretation
In this Agreement:
(a) unless the context otherwise requires, a reference:
(i) to the singular includes the plural and vice versa;
(ii) to a gender includes all genders;
(iii) to a document (including this Agreement) is a reference to that
document (including any Schedules and Annexures) as amended,
consolidated, supplemented, novated or replaced;
(iv) to an agreement includes any deed, agreement or legally
enforceable arrangement or understanding whether written or not;
(v) to parties means the parties to this Agreement and to a party
means a party to this Agreement;
(vi) to a notice means all notices, approvals, demands, requests,
nominations or other communications given by one party to another
under or in connection with this Agreement;
(vii) to a person (including a party) includes:
(A) an individual, company, other body corporate, association,
partnership, firm, joint venture, trust or Government Agency; and
(B) the person's successors, permitted assigns, substitutes, executors
and administrators;
(viii) to a law:
(A) includes a reference to any constitutional provision, subordinate
legislation, treaty, decree, convention, statute, regulation,
rule, ordinance, proclamation, by-law, judgment, rule of common
law or equity or rule of any applicable stock exchange;
(B) is a reference to that law as amended, consolidated, supplemented
or replaced; and
(C) is a reference to any regulation, rule, ordinance, proclamation,
by-law or judgment made under that law;
(ix) to proceedings includes litigation, arbitration and investigation;
(x) to a judgement includes an order, injunction, decree,
determination or award of any court or tribunal;
(xi) to time is a reference to Sydney time;
(b) headings are for convenience only and are ignored in interpreting this
Agreement;
(c) if a period of time is specified and dates from, after or before, a given
day or the day of an act or event, it is to be calculated exclusive of
that day;
(d) if a payment or other act must (but for this clause) be made or done on a
day which is not a Business Day, then it must be made or done on the next
Business Day;
(e) the word "including" or "includes" means "including but not limited to"
or "including without limitation";
(f) where a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
(g) where a Warranty or indemnity is given in favour of more than one person,
it is given to each of them severally and where a Warranty or indemnity
is given by more than one person, it is given by each of them severally;
and
(h) this Agreement must not be construed adversely to a party solely because
that party or its solicitors were responsible for preparing it.
1.3 Payments
Unless the context otherwise requires, where an amount is required to be paid
to a party (the "Receiving Party") by another party (the "Paying Party") under
this Agreement, that amount must be paid by bank cheque to the Receiving
Party, or otherwise as set out in the written direction of the Receiving Party
if that written direction is received by the Paying Party at least 2 Business
Days before the date upon which payment of the amount is due.
1.4 Amounts expressed in New Zealand dollars
Where an amount is required to be paid to a party (the "Receiving Party") by
another party (the "Paying Party") in New Zealand dollars, the Paying Party
may pay that amount to the Receiving Party in Australian Dollars calculated at
the exchange rate determined as the Australian/New Zealand dollar exchange
rate implied by the Australian/United States dollar exchange rate released by
the Reserve Bank of Australia at approximately 9.55 am (Sydney time) daily and
the New Zealand/United States dollar exchange rate released by the Reserve
Bank of Australia at approximately 11.10 am (Sydney time) daily calculated 3
Business Days before the date of the relevant payment.
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2. Sale and purchase of Assets
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2.1 Sale and purchase of Business Assets
The Vendors each agree to:
(a) sell and deliver to OpCo Aust and OpCo Aust agrees to purchase and accept
the Aust Business Assets;
(b) sell and deliver to OpCo NZ and OpCo NZ agrees to purchase and accept the
NZ Business Assets; and
(c) sell and deliver to InvestCo and the InvestCo agrees to purchase and
accept the Miscellaneous Assets.
free from Security Interests, for the Business Purchase Price on the terms and
conditions contained in this Agreement.
2.2 Deleted
2.3 New Zealand goods and services tax
(a) In addition to any payments specified or determined under the provisions
of this Agreement (including but not limited to payments under this
clause 2.3) the Purchaser must pay to the Vendor at the same time and in
the same manner as the Consideration to which it relates an amount equal
to any New Zealand Goods and Services Tax ("NZ GST") which the Vendor is
liable to pay in respect of payments made by the Purchaser under this
Agreement (the "NZ GST Amount") provided that the Vendor has delivered to
the Purchaser a tax invoice in relation to the purchase that complies
with the New Zealand Goods and Services Tax Act 1985.
(b) As between the Vendors and the Purchasers, the Vendors are not obliged to
pay any GST or Default GST, or to take any other steps to minimise
liability in respect of GST or Default GST, until the corresponding
payment is received from the Purchasers.
2.4 Australian goods and services tax
(a) If Australian GST is imposed or levied in respect of any supply by a
party under or in accordance with this Agreement then the party making
the supply may, subject to paragraph (c), recover the GST Amount from the
party receiving the supply in addition to the Consideration for the
supply referred to elsewhere in this Agreement, provided that the
Supplier has delivered to the Recipient a tax invoice relating to the
supply and complying with the requirements of the GST Law which GST
Amount shall be paid at the same time and in the same manner as the
Consideration to which it relates.
(b) Any amount referred to in this Agreement in relation to a payment to be
made under the Agreement shall be exclusive of Australian GST unless
indicated otherwise.
(c) In this Agreement:
"Australian GST" has the same meaning as is accorded to the expression
"GST" by the GST Law.
"Consideration" means any amount or other consideration to be paid or
provided in respect of a supply pursuant to this Agreement.
"GST Amount" means the Consideration multiplied by the Rate.
"GST Law" has the meaning given by the A New Tax System (Goods and
Services Tax) Act 1999 (Cth).
"Rate" means the rate at which the GST Law from time to time imposes GST
on a supply made under or in accordance with this Agreement.
"Recipient" means the party in receipt of a supply made under or in
accordance with this Agreement.
"Supplier" means the party making a supply made under or in accordance
with this Agreement.
2.5 Reimbursement
If either party becomes entitled to be reimbursed or indemnified by another
party for a cost or expense incurred in connection with this Agreement, the
amount of the cost or expense to be reimbursed or indemnified shall be reduced
by the amount of any input tax credit to which that party is entitled in
relation to the relevant cost or expense.
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3. Calculation and payment of the purchase price
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3.1 Calculation of Business Purchase Price
(a) The Business Purchase Price is $721,200, subject to adjustments after the
Business Completion Date pursuant to clause 7.8.
(b) The Business Purchase Price will be paid on the Business Completion Date
to the Vendors in the following proportions:
(i) 60% to be paid by OpCo Aust to the First Vendor;
(ii) 20% to be paid by OpCo NZ to the Second Vendor; and
(iii) InvestCo to pay 10% to the First Vendor, and 10% to the Second
Vendor.
and will be adjusted in respect of a particular Vendor, in accordance
with, and at the time determined under, clause 7.8.
(c) The Business Purchase Price is allocated between the Business Assets of
the First Vendor and the Second Vendor as shown in Annexure 4.
(d) Any adjustments to the Business Purchase Price pursuant to clause 7.8
attributed to particular Business Assets (or groups of such assets) will
automatically adjust the corresponding allocation of the Business
Purchase Price to those Business Assets in the same proportions. Any
adjustments to the Business Purchase Price pursuant to clause 7.8 not
attributed to particular Business Assets will be apportioned to adjust
the allocation of the Business Purchase Price across all the Business
Assets, pro rata.
(e) For the purpose of the accrual rules in the Income Tax Act 1994 of New
Zealand the Business Purchase Price does not include any capitalised
interest and the parties agree that the "lowest price" for the purposes
of the definition of "consideration" when measured pursuant to Section
EH48(3) of the Income Tax Act 1994 of New Zealand is equal to the
Business Purchase Price of the Business Assets and the Business Purchase
Price is the value of the Business Assets.
(f) Should the Commissioner of Inland Revenue in New Zealand assess in
accordance with Section EG19 of the Income Tax Act 1994 of New Zealand
that any Asset has a market value greater than that attributed to such
Asset as detailed in clause 3.1(c) and (d) the value of such Asset shall
be such market value and the value of Goodwill as described in clause
3.1(c) and (d) shall be reduced accordingly.
3.2 Deleted
3.3 Deleted
3.4 Deleted
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4. Condition
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4.1 Condition
Completion of the sale and purchase of the Business Assets and Miscellaneous
Assets under clause 6 is conditional upon approval of this Agreement by the
United States Bankruptcy Court for the Northern District of Illinois, Eastern
Division.
4.2 Termination for failure of condition
(a) Each Vendor must use its reasonable endeavours to obtain the fulfilment
of the Condition. The parties must keep each other informed of any
circumstances which may result in the Condition not being satisfied.
(b) If any of the Condition is not satisfied or waived upon or prior to 31
July 2002 or such later date as may be agreed between the parties then a
party who has complied with its obligations under this Agreement may
terminate this Agreement by notice to the other parties.
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5. Pre-completion
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5.1 Business to be conducted in ordinary course
(a) Until Business Completion the Vendors will:
(i) conduct the Business in the ordinary course, at arms' length, on
usual commercial terms, and in the same manner as it was conducted
prior to the date of this Agreement;
(ii) regularly consult with the Purchasers on the manner of conduct of
the Business;
(iii) use its reasonable endeavours to preserve the relationship of the
Business with customers, suppliers, lessees under the Lease
Accounts, Employees, licensors, lessors under the Property Leases
and other third parties; and
(iv) carry out repairs and maintain the real property the subject of
the Property Leases in accordance with usual commercial practice
and standards of maintenance for the industry, and as required
under the Property Leases.
(b) Until Business Completion the Vendors must not (without the consent of the
relevant Purchaser):
(i) (Material Adverse Effect) enter into any abnormal or unusual
transaction which has or would have a material adverse effect on
the Business;
(ii) (Executive) employ new executives or retrench existing executive
Employees;
(iii) (Leases) lease or hire (as lessee or hirer) an item having a value
exceeding $10,000;
(iv) (Salaries and bonuses) increase salaries or benefits to any
Employee by more than 5% of their salary and remuneration, except
in relation to any statutory or award increase, or grant or agree
to grant to any Employee any bonus, severance, profit sharing,
retirement, deferred compensation, insurance or other compensation
or benefit or adopt or establish any new compensation or benefit
plans or arrangements;
(v) (Accounting principles) modify or alter the accounting principles
used in relation to the Accounts, or the application of those
accounting principles or adopt new accounting principles;
(vi) (Revaluations) make any revaluation of any of the Business Assets
or Miscellaneous Assets;
(vii) (Contracts) enter into or amend any contract (including the
Contracts and Lease Accounts) involving total expenditure in
excess of $100,000 other than entering into an asset lease as
lessor in respect of work in progress notified to any of the
Purchasers prior to the date of this Agreement;
(viii) (Assets) acquire any Asset for more than $100,000, or dispose of
or enter into an agreement or arrangement to dispose of any of the
Assets other than to the Purchasers;
5.2 Access by Purchaser and its representatives
Until Business Completion the Vendors must:
(a) ensure that each Purchaser and/or its authorised representatives has free
and unrestricted access during normal business hours to the premises of
the Business and of the Vendors and to the Assets, including the Books
and Records;
(b) answer any reasonable written enquiries or requisitions issued by any
Purchaser; and
(c) provide all information, assistance and facilities that any Purchaser
reasonably requires.
5.3 Access by Vendor and its representatives
After Business Completion, the Purchasers must:
(a) ensure that each Vendor and/or its authorised representatives has free
and unrestricted access during normal business hours to the premises of
the Business and of the Purchasers to the Assets, including the Books and
Records;
(b) answer any reasonable written enquiries or requisitions issued by any
Vendor; and
(c) provide all information, assistance and facilities that any Vendor
reasonably requires,
in each case only relation to Lease Accounts which have not been the subject
of a Lease Completion and the Books and Records which are required to manage
the affairs of the Vendors after the sale reflected in this Agreement is
completed.
6. Completion
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6.1 Time and place of completion
(a) Business Completion must take place at the offices of Baker & McKenzie,
Level 26, AMP Centre, 50 Bridge Street, Sydney NSW 2000 at 2pm on the
Business Completion Date, or at such other time and place as the parties
may agree.
6.2 Property and risk to pass
(a) Title to and risk in the Business Assets and Miscellaneous Assets will
pass to the relevant Purchasers (as provided in this Agreement) on
Business Completion. Until Business Completion, the Vendors remain the
owners of and bear all risks in connection with the Business and the
Business Assets and the Miscellaneous Assets.
6.3 Obligations of Purchasers on completion
(a) At Business Completion,
(i) OpCo Aust must pay to the First Vendor the percentage of the
Business Purchase Price specified out in clause 3.1(b)(i);
(ii) OpCo NZ must pay to the Second Vendor the percentage of the
Business Purchase Price specified in clause 3.1(b)(ii);
(iii) InvestCo must pay the Vendors, respectively, the percentages of
the Business Purchase Price specified in clause 3.1(b)(iii);
(iv) OpCo Aust, OpCo NZ and InvestCo, respectively must deliver to the
Vendor as required counterparts of the Business Completion
Agreements executed by the relevant Purchaser in each case; and
(v) OpCo Aust, OpCo NZ and InvestCo, respectively must deliver to the
Vendors a certified copy of an extract of the minutes of the
meeting of the board of directors of each of the Purchasers,
approving the terms of this Agreement and the relevant Business
Completion Agreements and authorising each Purchasers
representatives or attorneys to execute it for and on behalf of
that Purchaser.
6.4 Obligations of Vendors on Business Completion
(a) At Business Completion the First Vendor must deliver to OpCo Aust, OpCo
NZ and InvestCo, as applicable:
(i) a counterpart of each of the Business Completion Agreements to
which the First Vendor and the relevant Purchaser is a party,
executed by the First Vendor and the other parties to the
agreement (other than the Purchasers);
(ii) all documents of title, certificates of registration and other
documents evidencing ownership of the Business Assets and the
Miscellaneous Assets in the possession or control of the First
Vendor;
(iii) possession of any of the Inventory, Plant and Equipment, Books and
Records and the Miscellaneous Assets held by it;
(iv) possession of the Real Property (except insofar as it is occupied
by the Second Vendor);
(v) subject to clause 11.1, any consents of third parties necessary or
appropriate to permit the sale by the First Vendor of all of the
Business Assets and Miscellaneous Assets; and
(vi) an extract of the minutes of the meeting of the boards of
directors of the First Vendor approving the sale of the Business
Assets and the Miscellaneous Assets on the terms of this
Agreement, the execution and performance of this Agreement and of
the Business Completion Agreements, and any other instruments or
agreements contemplated by this Agreement to which the First
Vendor is a party,
and must do all other things which are required by this Agreement to be
done by the First Vendor at Business Completion, or which are reasonably
required by:
(vii) OpCo Aust, to give to OpCo Aust the full possession and benefit of
the Aust Business Assets;
(viii) OpCo NZ, to give to OpCo NZ the full possession and benefit of the
NZ Business Assets; and
(ix) InvestCo, to give to InvestCo the full possession and benefit of
the Miscellaneous Assets.
(b) At Business Completion the Second Vendor must deliver to OpCo Aust, OpCo
NZ and InvestCo, as applicable:
(i) a counterpart of each of the Business Completion Agreements to
which the Second Vendor and the relevant Purchaser is a party,
executed by the Second Vendor and the other parties to the
agreement (other than the Purchasers);
(ii) all documents of title, certificates of registration and other
documents evidencing ownership of the Business Assets and the
Miscellaneous Assets in the possession or control of the First
Vendor;
(iii) possession of any of the Inventory, Plant and Equipment, Books and
Records and the Miscellaneous Assets held by it;
(iv) possession of the Real Property (except insofar as it is occupied
by the First Vendor);
(v) subject to clause 11.1 any consents of third parties necessary or
appropriate to permit the sale by the Second Vendor of all of the
Business Assets and Miscellaneous Assets; and
(vi) an extract of the minutes of the meeting of the boards of
directors of the Second Vendor approving the sale of the Business
Assets and the Miscellaneous Assets on the terms of this
Agreement, the execution and performance of this Agreement and of
the Business Completion Agreements, and any other instruments or
agreements contemplated by this Agreement to which the Second
Vendor is a party;
and must do all other things which are required by this Agreement to be
done by the Second Vendor at Business Completion, or which are reasonably
required by:
(vii) OpCo Aust, to give to OpCo Aust the full possession and benefit of
the Aust Business Assets;
(viii) OpCo NZ, to give to OpCo NZ the full possession and benefit of the
NZ Business Assets; and
(ix) InvestCo, to give to InvestCo the full possession and benefit of
the Miscellaneous Assets.
6.5 Deleted
6.6 Late completion
Provided that the Vendors are ready and willing to complete on the Business
Completion Date, if the entire Business Purchase Price (as adjusted pursuant
to clause 7.8) is not paid by the Purchasers to the Vendors as provided by
clause 6.3, the entire Business Purchase Price (plus all other moneys owing by
that Purchaser under this Agreement except for interest under this clause)
will bear interest calculated daily at the Interest Rate on that day computed
from the Business Completion Date until the date on which completion for all
the Business Assets occurs.
6.7 Notice to complete
(a) If a party fails to comply with its obligations under this clause in any
material respect, any other party which has complied with its obligations
(to the extent possible having regard to the failure of that other party)
is entitled to issue a notice to complete making the time for Business
Completion of the essence.
(b) A period of 14 days following the date of the service of that notice is
deemed to be a reasonable time for requiring Business Completion.
(c) If Business Completion has not occurred within the period specified, the
party serving the notice may at its option:
(i) proceed to Business Completion so far as is practical without
affecting its rights under this Agreement; or
(ii) terminate this Agreement, with respect to any further performance
of this Agreement but without prejudice to any rights and
entitlements of any party obtained through performance of this
Agreement prior to that date, by notice in writing to the other
parties.
(d) Where the terms of a Business Completion Agreement have not been settled
by the relevant Business Completion Date, the Vendors will not be taken
to be ready and willing to complete on that date in respect of that
agreement.
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7. Completion Statement
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7.1 Completion Statement
(a) At Business Completion or as soon as possible thereafter the Vendors must
prepare the Completion Statement and provide a copy to OpCo Aust, OpCo NZ
and InvestCo.
(b) The Completion Statement must be prepared by the Vendors in good faith in
accordance with the Accounting Standards.
7.2 Auditor's certificate
The Completion Statement must be accompanied by the Auditor's Certificate.
7.3 Purchaser's obligation to disclose
On and from Business Completion OpCo Aust, OpCo NZ and InvestCo must make
available to the Vendors and the Vendors' auditor all books, records and
accounts required to enable the Vendors to prepare the Completion
Statement.
7.4 Review by Purchaser of Completion Statement
(a) The Vendors must ensure that OpCo Aust, OpCo NZ and InvestCo are given
unrestricted access to all books, records, working papers and
calculations referrable to the amounts included in the Completion
Statement to verify the Completion Statement.
(b) As part of each Purchaser's review each Purchaser's auditor is entitled
to conduct any audit and/or other verification procedures it decides are
reasonably necessary so that each of OpCo Aust, OpCo NZ and InvestCo can
determine whether it accepts the Completion Statement.
7.5 Notification of disputes on Completion Statement
(a) Each of OpCo Aust, OpCo NZ and InvestCo may issue a Dispute Notice to the
Vendors within 10 Business Days after receipt of the Completion
Statement.
(b) The Completion Statement will (subject to the terms of any such agreement
in writing) be final and binding on the relevant parties if:
(i) a Purchaser does not issue a Dispute Notice within the required
period; or
(ii) a Dispute Notice is issued and the dispute is resolved by the
relevant parties by agreement in writing (subject to the terms of
that agreement).
7.6 Dispute Resolution
(a) If a Dispute Notice is issued under clause 7.5(a) the relevant parties
must use their best efforts in good faith to resolve the dispute.
(b) If the dispute is not resolved within 30 Business Days after the issue of
a Dispute Notice, the matters in dispute must be promptly referred by the
party which issued the Dispute Notice to the Expert appointed under
clause 7.7.
(c) The Expert must be requested to:
(i) resolve any matter in dispute within 15 Business Days of their
appointment by:
(A) applying the Accounting Standards and the Completion Accounts
Principles and any principles set out in this Agreement relating
to the matters in dispute;
(B) having regard to any written submissions that the relevant parties
or their representatives put before them within 10 Business Days
of their appointment; and
(C) making any enquiries or inspections as they in their absolute
discretion consider necessary; and
(ii) (unless all the relevant parties otherwise direct in writing)
decide the form and content of the Completion Statement and
provide notice of its determination to all relevant parties.
(d) The decision of the Expert as to the matter in dispute and the
form and content of the Completion Statement, will, in the absence
of manifest error, be final and binding on the relevant parties.
(e) The Expert will act as expert and not as arbitrator.
(f) The costs of the Expert will be borne by the relevant parties in
accordance with the Expert's determination.
7.7 Selection of Expert
The Expert must be selected by:
(a) agreement between the relevant parties within 2 Business Days after the
end of the period set out in clause 7.4(a); or
(b) if the relevant parties fail to agree, the President for the time being
of the Institute of Chartered Accountants of Australia on the application
of the party which issued the Dispute Notice.
7.8 Adjustment to Business Purchase Price
(a) Following determination of the Completion Statement under clause 7.5(b)
or 7.6, the Business Purchase Price will be adjusted for each Vendor. The
adjusted Business Purchase Price will be calculated in the following
manner:
(i) the proportion of the Business Purchase Price payable to that
Vendor under clause 3.1;
(ii) less the Employee Entitlements Amount for that Vendor;
(iii) less the Business Accrual Amount for that Vendor;
(iv) plus the Prepayments Amount for that Vendor.
(b) Where:
(i) the proportion of the adjusted Business Purchase Price to which a
Vendor is entitled is greater than the amount paid to the Vendor
under clause 6.3 on Business Completion, a payment must be made to
that Vendor of the difference within 2 Business Days of the
determination of the Completion Statement under clause 7.5(b) or
7.6 by the Purchasers who have purchased the Business Assets to
which the adjustments are attributable (pro rata in accordance
with the proportions in which they may be attributed); and
(ii) the proportion of the adjusted Business Purchase Price to which a
Vendor is entitled is less than the amount paid to the Vendor
under clause 6.3 on Business Completion, that Vendor must make a
payment of the difference within 2 Business Days of the
determination of the Completion Statement under clause 7.5(b) or
7.6, to the Purchasers who have purchased the Business Assets to
which the adjustments are attributable (pro rata in accordance
with the proportions in which they may be attributed).
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8. Employees
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8.1 Offers of employment
(a) OpCo Aust must offer employment to all of the Employees of the First
Vendor subject to and with effect from Business Completion no later than
10 Business Days after the date of this Agreement.
(b) OpCo NZ must offer employment to all of the Employees of the Second
Vendor subject to and with effect from Business Completion no later than
10 Business Days after the date of this Agreement.
(c) The terms of the employment offered, in each case, must be on the same
terms as the terms of employment (including those terms relating to
notice and redundancy) of those Employees with the First Vendor or the
Second Vendor (as the case may be).
(d) OpCo Aust, OpCo NZ and the Vendors must use all reasonable efforts (other
than revising the terms of an offer made in accordance with this clause
8.1) to encourage the Employees to whom offers are made to accept the
offers.
8.2 Vendors' obligations to Transferred Employees
At Business Completion the Vendors must:
(a) terminate the employment of the Transferred Employees; and
(b) pay (in accordance with the relevant agreements, statutes or awards) to
each Transferred Employee the sum of all salary, wages, bonuses,
allowances or commissions earned as at the Business Completion Date.
8.3 Purchaser's obligations to Transferred Employees
OpCo Aust and OpCo NZ must, respectively:
(a) treat the Transferred Employees as having continuity of service; and
(b) assume the Vendors' liability for long service leave entitlements of the
relevant Transferred Employees, and untaken leave entitlements for the
relevant Transferred Employees.
8.4 Vendor's Allowance for Accrued Entitlements
In consideration of OpCo Aust and OpCo NZ assuming liabilities under clause
8.3, respectively, the Employee Entitlements Amount will be allowed to OpCo
Aust and OpCo NZ under clause 7.
8.5 Employees not accepting Purchaser's Offer
The Vendors will remain liable for all amounts due on termination of any
Employees who do not accept the offer of employment from OpCo Aust or OpCo NZ
(as applicable).
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9. Superannuation
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9.1 Purchaser's plan
At the request of the Purchaser, the First Vendor and the Second Vendor will
do everything required to put OpCo Aust and OpCo NZ, respectively and as
applicable, in the same position of control in relation to the Vendor's Fund
from the Business Completion Date as the First Vendor and the Second Vendor
were immediately before the Business Completion Date.
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10. Accounts Receivable
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10.1 General
For a period of 6 months following Business Completion OpCo Aust and OpCo NZ
(as the case may be) must at no cost to the Vendors:
(a) on behalf of the Vendors use its reasonable endeavours to collect all the
Accounts Receivable in accordance with the trade terms and customs of the
Business (provided that the relevant Purchaser shall not be required to
commence any legal action in respect of any Accounts Receivable); and
(b) remit to the Vendors at the end of each week by transfer to a bank
account nominated by the Vendors all amounts collected during that week
for the Accounts Receivable.
10.2 Collection for limited period
(a) The Vendors will be responsible for the collection of all Accounts
Receivable which have not been collected within 6 months following
Business Completion.
(b) OpCo Aust and OpCo NZ (as the case may be) will, at the request of the
Vendors, hand over to the Vendors all invoices, agreements and documents
relating to the outstanding Accounts Receivable.
(c) The Purchasers will not have authority to compromise, release or forgive
any Accounts Receivable.
10.3 Legal proceedings
Should the Vendors wish to take any steps to collect any of the Accounts
Receivable, (including the commencement or continuation of any legal action
for recovery) they must notify OpCo Aust or OpCo NZ (as the case may be)
within 5 days. The relevant Purchaser must give the Vendors all reasonable
assistance to enable the Vendors to recover the Accounts Receivable, at the
Vendor's expense.
10.4 Identification of payments
For the purpose of identifying whether an amount paid by a Debtor is for a
debt owed to the Vendors as at the Business Completion Date or a debt owed to
a Purchaser for the period after the Business Completion Date, amounts
received from a Debtor will be applied against that Debtor's longest
outstanding debt, unless the Debtor has notified the relevant Purchaser, in
good faith, of a dispute in relation to that outstanding debt or debts.
10.5 Reimbursement of sums received
(a) In the event that a Purchaser receives any Accounts Receivable after the
period of 6 months following Business Completion, that Purchaser shall
transfer such Accounts Receivable to a bank account nominated by the
Vendors within 5 Business Days of receipt.
(b) In the event that a Vendor receives any trade debt or other payment
arising from the operation of the Business that is not an Accounts
Receivable, that Vendor shall transfer such debt or payment to a bank
account nominated by OpCo Aust and OpCo NZ (as the case may be) within 5
Business Days of receipt.
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11. Contracts and Miscellaneous Assets
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11.1 Assignment and novation
(a) Unless Allco agrees otherwise, each Vendor must use all reasonable
endeavours to obtain the novation or, with the consent of Allco,
assignment of each of the Miscellaneous Assets required to be transferred
by novation or assignment to or in favour of InvestCo before the Business
Completion Date.
(b) In respect of any Miscellaneous Assets required to be transferred by
novation or assignment and not novated or assigned with the consent of
InvestCo before the Business Completion Date, each Vendor and the
Purchasers must use all reasonable endeavours to obtain the novation or,
with the consent of InvestCo, assignment of each of those Miscellaneous
Assets to InvestCo as soon as practicable on or after that date.
11.2 Deleted
11.3 Purchaser's obligations after Business Completion
OpCo Aust, OpCo NZ and InvestCo (as the case may be) must assume:
(a) the relevant Liabilities of the Vendors under the relevant Contracts and
Miscellaneous Assets arising following Business Completion; and
(b) the relevant Liabilities arising under the relevant Contracts and
Miscellaneous Assets prior to Business Completion, to the extent that
that Liability has been included in the calculation of the relevant
Business Accrual Amount.
11.4 Deleted
11.5 Breaches prior to completion
Each Vendor indemnifies each of the Purchasers from and against all actions,
suits, claims, demands, losses, obligations, Liabilities and damages arising
directly or indirectly from any breach of:
(a) any Contract to which that Vendor is a party by that Vendor on or prior
to Business Completion; and
(b) any Miscellaneous Asset to which that Vendor is a party by that Vendor on
or prior to Business Completion.
11.6 Breaches after completion
(a) OpCo Aust and OpCo NZ, respectively, indemnify the Vendors from and
against all actions, suits, claims, demands, losses, obligations,
Liabilities and damages arising directly or indirectly from any breach by
OpCo Aust or OpCo NZ, respectively, of a Contract novated or assigned to
them, after Business Completion.
(b) InvestCo indemnifies the Vendors from and against all actions, suits,
claims, demands, losses, obligations, Liabilities and damages arising
directly or indirectly from any breach by InvestCo of a Miscellaneous
Asset transferred, novated or assigned to InvestCo, after Business
Completion.
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12. Deleted
13. Deleted
14. Use of Intellectual Property
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(a) The Purchasers covenant with the Vendors that from the Business
Completion Date it will not use or register any name or trade mark which
includes the word "Comdisco" or any word or words in any trade mark used
by either of the Vendors under any of the Trade Mark Licence Agreements,
or any confusingly similar words, except to the extent permitted under
paragraph (b) below.
(b) On Business Completion, the Vendors will enter into a licence agreement
and will procure the entry into the licence agreement by the Licensors
under the Trade Mark Licence Agreements, with OpCo Aust, OpCo NZ and
InvestCo, to grant to OpCo Aust, OpCo NZ and InvestCo an irrevocable
licence to use the name and any trade mark which includes the word
"Comdisco" in Australia and New Zealand, for a period of one year from
Business Completion, and to permit each of OpCo Aust, OpCo NZ and
InvestCo to refer to itself as the Vendors' successor in relation to the
Business.
(c) On Business Completion, the Vendors must ensure that the Purchasers are
licensed to use all Software required to support the Tyco Services
Agreement.
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14A. Restraint
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14A.1 Restraint
The Vendors undertake to each of the Purchasers that:
(a) for 2 years from Business Completion, they will not, and will procure
that Related Bodies Corporate of the Vendors will not:
(i) be engaged or involved in any capacity in any business or
activity which is the same as or similar to the Business or any
material part of it. This restriction applies throughout
Australia and New Zealand, and in each of the regions in which
the Business is carried on in Australia and New Zealand;
(ii) solicit the custom in Australia and New Zealand of anyone who
was a customer of the Business at any time within 2 years
before Business Completion; or
(iii) entice away or endeavour to entice away from the Business any
Transferring Employee; or
(b) at any time after Business Completion, they will not use or disclose any
of the Confidential Information, except as required by law; or
(c) for a period of two years after Business Completion, they will not use a
logo, symbol, trademark or business name including, substantially
identical or deceptively similar to, the name "Comdisco" or any trade
mark including the name "Comdisco" in Australia or New Zealand.
14A.2 Limitations of restraint
(a) If any of the restraints in clause 14A.1 above are judged to go beyond
what is reasonable in the circumstances and necessary to protect the
interests of the Purchasers in the Business and the Business Assets and
Miscellaneous Assets, but would be judged reasonable and necessary if any
activity were deleted or a period or area were reduced, then the
restraints apply with that activity deleted or period or area reduced by
the minimum amount necessary to make the restraint reasonable in the
circumstances.
(b) Each of the restraints in clause 14A.1 above has effect as a separate and
severable prohibition or restriction and is to be enforced accordingly.
(c) Notwithstanding clause 14A.1, the Vendors or their Related Bodies
Corporate may:
(i) hold in aggregate up to 5% of the shares in any public company
which is quoted on the Australian Stock Exchange or another
recognised exchange, even though that company carries on any
business that is similar to the Business in Australia or New
Zealand.
(ii) undertake such activities as are necessary or desirable to
manage the future affairs of the Vendors after the sale
reflected in this Agreement is completed under their corporate
name; and
(iii) perform their respective obligations under this Agreement under
their corporate name.
(d) The Vendors acknowledge that the restraints in clause 14A.1 are
reasonable in the circumstances and necessary to protect the interests of
the Purchasers in the Business and the Business Assets and Miscellaneous
Assets.
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15. Confidentiality and announcements
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15.1 Provisions to remain confidential
Subject to clauses 15.2 and 15.3, each party must not disclose without the
prior written consent of the other parties:
(a) the content of this Agreement; or
(b) any Confidential Information.
15.2 Permitted disclosures
A party may disclose matters referred to in clause 15.1:
(a) to those of its employees, officers, professional or financial advisers
and bankers as the party reasonably thinks necessary but only on a
strictly confidential basis; or
(b) if required by law, after the form and terms of that disclosure have been
notified to the other parties and the other parties have had a reasonable
opportunity to comment on the form and terms.
15.3 Announcements
A party may make announcements or statements at any time in the form and on
the terms previously agreed by the parties in writing.
15.4 Return of information etc in the event of termination
If this Agreement is terminated prior to Business Completion:
(a) each of the Purchasers must return to the Vendors or destroy:
(i) all Confidential Information in written or deliverable form;
and
(ii) any other information obtained by that Purchaser in relation to
the Business;
(b) each party must do everything reasonably required by the other parties to
reverse any action taken under this Agreement.
15.5 Survival of obligation
This clause will survive the termination of this Agreement.
- -------------------------------------------------------------------------------
16. Notices
- -------------------------------------------------------------------------------
16.1 Requirements
All notices must be:
(a) in legible writing and in English;
(b) addressed to the recipient at the address or facsimile number set out
below or to such other address or facsimile number as that party may
notify to the other parties:
to the First Vendor:
Comdisco, Inc
Address: 6111 North River Road, Rosemont, Il 60018
United States of America
Attention: Robert E.T. Lackey
Facsimile no: 0011 1 847 518 5478
to the Second Vendor:
Comdisco, Inc
Address: 6111 North River Road, Rosemont, Il 60018
United States of America
Attention: Robert E.T. Lackey
Facsimile no: 0011 1 847 518 5478
to OpCo Aust:
Address: Level 24
Gateway Building
1 Macquarie Place
Sydney NSW 2000
Attention: Mr Chris West
Facsimile no: 61 2 9241 2550
to OpCo NZ:
Address: Level 24
Gateway Building
1 Macquarie Place
Sydney NSW 2000
Attention: Mr Chris West
Facsimile no: 61 2 9241 2550
to InvestCo:
Address: Level 24
Gateway Building
1 Macquarie Place
Sydney NSW 2000
Attention: Mr Chris West
Facsimile no: 61 2 9241 2550
(c) signed by the party or where the sender is a company by an authorised
person or officer of that company or under the common seal of that
company; and
(d) sent to the recipient by hand, prepaid post (airmail if to or from a
place outside Australia or New Zealand or between the two countries) or
facsimile.
16.2 Receipt
Without limiting any other means by which a party may be able to prove that a
notice has been received by another party, a notice will be deemed to be duly
received:
(a) if sent by hand when left at the address of the recipient;
(b) if sent by pre-paid post, 3 days (if posted within Australia to an
address in Australia) or 10 days (if posted from one country to another)
after the date of posting; or
(c) if sent by facsimile, upon receipt by the sender of an acknowledgment or
transmission report generated by the machine from which the facsimile was
sent indicating that the whole facsimile was sent to the recipient's
facsimile number;
but if a notice is served by hand, or is received by the recipient's facsimile
on a day which is not a Business Day, or after 5:00 pm on a Business Day,
recipient's local time the notice is deemed to be duly received by the
recipient at 9.00 am on the first Business Day after that day.
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17. General Provisions
- -------------------------------------------------------------------------------
17.1 Costs
Each party must pay its own costs in respect of this Agreement and the
documents contemplated by this Agreement except that (unless and to the extent
that this Agreement expressly provides to the contrary) the Purchasers must
pay all stamp duty and GST payable on this Agreement, the transfer of the
Business Assets and the Miscellaneous Assets and any other documents
contemplated by this Agreement.
17.2 Non-merger
The warranties, other representations and covenants by the parties in this
Agreement are continuing and will not merge or be extinguished on Business
Completion.
17.3 Effect of termination
If this Agreement is terminated under clause 4.2 or 6.7(c)(ii):
(a) the parties are released from the obligation to continue to perform this
Agreement except those obligations contained in clause 15 and any other
obligations which by their nature survive termination; and
(b) each party retains the rights it has against any other party for any past
breach of the Agreement; and
(c) to the extent that parts of this Agreement have been performed prior to
the date of termination, the termination does not prejudice title, rights
or entitlements arising out of such performance.
17.4 Indemnities
The indemnities contained in this Agreement are:
(a) continuing, separate and independent obligations of the parties from
their other obligations, and survive the termination of this Agreement;
and
(b) absolute and unconditional and unaffected by anything which otherwise
might have the effect of prejudicing, releasing, discharging or affecting
the liability of the party giving the indemnity.
17.5 Waiver and exercise of rights
(a) A waiver by a party of a provision or of a right under this Agreement is
binding on the party granting the waiver only if it is given in writing
and is signed by the party or an officer of the party granting the
waiver.
(b) A waiver is effective only in the specific instance and for the specific
purpose for which it is given.
(c) A single or partial exercise of a right by a party does not preclude
another or further exercise of that right or the exercise of another
right.
(d) Failure by a party to exercise or delay in exercising a right does not
prevent its exercise or operate as a waiver.
17.6 Amendment
This Agreement may be amended only by a document signed by all parties.
17.7 Counterparts
This Agreement may be signed in counterparts and all counterparts taken
together constitute one document.
17.8 Further assurances
Each party must, at its own expense, whenever requested by another party,
promptly do or arrange for others to do everything reasonably necessary to
give full effect to this Agreement and the transactions contemplated by this
Agreement.
17.9 Assignment
A party must not transfer, assign, create an interest in or deal in any other
way with any of its rights under this Agreement without the prior written
consent of the other parties.
17.10 Deleted
17.11 Rights cumulative
The rights, remedies and powers of the parties under this Agreement are
cumulative and not exclusive of any rights, remedies or powers provided to the
parties by law.
17.12 Consents and Approvals
A party may give its approval or consent conditionally or unconditionally or
withhold its approval or consent in its absolute discretion unless this
Agreement expressly provides otherwise.
17.13 Jurisdiction
Each party irrevocably and unconditionally:
(a) submits to the non-exclusive jurisdiction of the courts of New South
Wales; and
(b) waives any claim or objection based on absence of jurisdiction or
inconvenient forum.
17.14 Service of process
Each party agrees that a document required to be served in proceedings about
this Agreement may be served:
(a) if originating process or a subpoena to be served on a company or
registered body by being sent by post to or left at its registered
office, and in all other cases at its address for service of notices
under clause 16; or
(b) in any other way permitted by law,
17.15 Governing Law
This Agreement is governed by the laws of New South Wales.
Executed as an agreement.
Signed for and on behalf of )
Comdisco Australia Pty Limited: )
)
)
/s/ D. Corrigan /s/ Robert E. T. Lackey
- -------------------------------------------------- ---------------------------------------------------
Signature of director Signature of director
D. Corrigan Robert E. T. Lackey
- --------------------------------------------------- ---------------------------------------------------
Name of director (please print) Name of director
(please print)
Signed for and on behalf of )
Comdisco New Zealand: )
)
)
/s/ D. Corrigan /s/ Robert E. T. Lackey
- -------------------------------------------------- ---------------------------------------------------
Signature of director Signature of director
D. Corrigan Robert E. T. Lackey
- -------------------------------------------------- ---------------------------------------------------
Name of director (please print) Name of director
(please print)
SIGNED by Christopher John West as attorney )
for NADLO PTY LIMITED under power of attorney )
dated 8 April 2002 in the presence of: )
)
)
/s/ Brian Murphy )
- ----------------------------------------------- )
Signature of witness )
)
Brian Murphy ) /s/ Christopher John West
- ---------------------------------------------- ) ----------------------------------------------------
Name of witness (block letters) ) By executing this Agreement the attorney
) states that the attorney has received no
) notice of revocation of the power of
) attorney
SIGNED by Christopher John West as attorney )
for CODIS LIMITED under power of attorney )
dated 8 April 2002 in the presence of: )
)
)
/s/ Brian Murphy )
- --------------------------------------------- )
Signature of witness )
)
Brian Murphy ) /s/ Christopher John West
- -------------------------------------------- ) ----------------------------------------------------
Name of witness (block letters) ) By executing this Agreement the attorney
) states that the attorney has received no
) notice of revocation of the power of
) attorney
SIGNED by Christopher John West as attorney )
for RELLIM PTY LIMITED under power of )
attorney dated 8 April 2002 in the presence )
of: )
)
)
/s/ Brian Murphy )
- -------------------------------------------- )
Signature of witness )
) /s/ Christopher John West
) --------------------------------------------------
Brian Murphy ) By executing this Agreement the attorney
- -------------------------------------------- ) states that the attorney has received no
Name of witness (block letters) ) notice of revocation of the power of
) attorney
)
Annexure 1
Deleted
Annexure 2
Deleted
Annexure 3
Part 1
First Vendor
A. Australia
Inventory: Stock on Hand to be remarketed
Plant and Equipment: Fixed Assets - Lvl 12, 99 Walker Street. North Sydney
Furniture and Fittings
Computers and Telecommunications equipment
Leasehold Improvements
Part 2
Second Vendor
Assets
B. New Zealand
Inventory: Stock on Hand to be remarketed
Plant and Equipment: Fixed Assets - ASB Building, Lvl 16, 135 Albert Street
Auckland New Zealand
Computers and Telecommunications equipment
Annexure 4
Business Purchase Price Allocation
- ---------------------------------------------------------------------------------------------------------------------------
Jurisdiction Goodwill Books and Records Contracts Plant and Inventory Property
and Vendor Equipment Leases
(% and $) (% and $) (% and $) (% and $) (% and $)
(% and $)
- ---------------------------------------------------------------------------------------------------------------------------
New Zealand $101,905 $1 $1 $8,366 $52,142 $1
Second Vendor 14.13% 0% 0% 1.16% 7.23% 0%
- ---------------------------------------------------------------------------------------------------------------------------
New South Wales $149,072 $1 $1 $173,881 $185,781 $1
First Vendor 20.67% 0% 0% 24.11% 25.76% 0%
- ---------------------------------------------------------------------------------------------------------------------------
Victoria $49,979 0 0 0 0 0
First vendor 6.93%
- ---------------------------------------------------------------------------------------------------------------------------
Annexure 5
Real Properties and Property Leases
1. The lease of 99 Walker Street, North Sydney, NSW between the First Vendor
as lessee and Yamamoto Realty Co. Ltd as lessor commencing on 1 May 1999
and expiring on 30 April 2005.
2. The lease at 135 Albert Street, Level 16 & 20, Auckland, New Zealand
between First Vendor as lessee and Servcorp New Zealand Ltd as lessor
commencing 11 December 2000 and expiring on a month to month basis.
Annexure 6
Officers and employees
As per attached
Annexure 7
Completion Agreements
Part A Business Completion Agreements
(a) An assignment of the Property Lease between the First Vendor and
OpCo Aust in the agreed form.
(b) An assignment of the Property Lease between the Second Vendor and
OpCo NZ in the agreed form.
(c) Licence Agreements in favour of each of OpCo NZ, OpCo Aust and Allco
in respect of the name "Comdisco" in terms acceptable to OpCo NZ,
OpCo Aust and Allco.
(d) Novations or assignments of the Contracts to OpCo Aust or OpCo NZ
(as the case may be), in terms acceptable to OpCo Aust or OpCo NZ
(as the case may be).
(e) Sufficient transfers, novations or assignments in respect of all of
the Vendor's right, title and interest in the Miscellaneous Assets,
in favour of InvestCo.
(f) Such agreements, transfer instruments or other documents as may be
necessary or appropriate to ensure that all the Vendors' right,
title and interest in the Business Assets are properly vested in the
relevant Purchasers.
Annexure 8
Deleted
Annexure 9
Deleted