Nevada | 333-38838 | 95-4442384 |
(state of
incorporation)
|
(Commission File Number) |
(IRS Employer
I.D. Number)
|
29115 Valley Center Rd., K-206
Valley Center, CA 92082
(866) 800-2978
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Item 1.01
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Entry into a Material Definitive Agreement
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Item 1.02
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Termination of a Material Definitive Agreement
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Item 9.01
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Financial Statements and Exhibits
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Exhibit No.
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Description
|
|
2.1
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Agreement for Sale and Purchase of Shares, dated July 29, 2015, by and among Gourmet Foods Ltd., certain related parties of Gourmet Foods Ltd., and Concierge Technologies, Inc.
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CONCIERGE TECHNOLOGIES, INC. | |||
Date: August 4, 2015
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By:
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/s/ David Neibert | |
David Neibert | |||
Chief Financial Officer | |||
Solicitors to Vendor and Covenantors
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Solicitors to the Purchaser
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1
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Interpretation
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3
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2
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Sale and purchase of Shares
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9
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3
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Conditions
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10
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4
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payment of the Purchase Price
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11
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5
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Determination of Adjustment Amount
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12
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8
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Completion
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17
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9
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default and remedies
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19
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10
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Warranties and claims generally
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21
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11
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Non-competition
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23
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12
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Confidentiality and announcements
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24
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13
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Assignment
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25
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14
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Notices
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25
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15
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Costs
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26
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16
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Remedies and Waivers
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26
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17
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dispute resolution
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26
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18
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Miscellaneous
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27
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Schedule 1: Warranties
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31
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Schedule 2: shareholding
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34
|
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Schedule 3: Completion statement
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35
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Schedule 4: Dividend documentation
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37
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B.
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The Purchaser and the Company have entered into an Agreement for Sale and Purchase of a Business assets dated 29 May 2015 (Prior Agreement). To facilitate the transfer of the assets of the Company the Purchaser has requested the Vendor sell the Shares under an Agreement for Sale and Purchase of Shares. The Vendor has agreed to sell the Shares on the terms set out in this Agreement but does so in a manner to achieve the same objectives as the Prior Agreement. The Purchaser wishes to purchase the Shares.
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C.
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The Covenantor holds an ownership interest in the Company. The Vendor's sale of the Sale Shares for his benefit and so the Covenantor has agreed to be bound to covenants and obligations of the Vendor under this Agreement, in the manner described.
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D.
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This Agreement is entered into to record the terms upon which the Parties will complete the Sale and Purchase of the Shares.
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1
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INTERPRETATION
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1.1
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Definitions
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(a)
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Accounts receivable;
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(b)
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Prepayments; and
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(c)
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Cash,
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(d)
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Accounts payable;
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(e)
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Accrued expenses; and
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(f)
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Employee Entitlements.
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(a)
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patents, trade marks, service marks, inventions, copyrights, registered designs, trade names, corporate names, internet domain names, symbols and logos and all goodwill associated with the same; patent applications and applications to register trade marks, services marks and designs or other intellectual property rights;
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(b)
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Technical Information, databases and data collected; and
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(c)
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all rights in all of the above provided by statute, treaties, conventions, common law and contract;
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(a)
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a Spouse or Partner, a father, mother, son, or daughter of a Party;
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(b)
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a trustee of a trust where the Party is a settlor or a beneficiary, or any Spouse or Partner, or a father, mother, son or daughter of that Party;
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(c)
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a Related Company; or
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(d)
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a person which controls that Party, is controlled by that Party or is controlled by the same person who controls the Party (and for the avoidance of doubt includes a shareholder of the Party).
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1.2
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Construction of Certain References
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(a)
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business day or working day means a day (other than a Saturday or Sunday) on which registered banks are open for general banking business in Wellington, New Zealand;
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(b)
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control has the meaning specified by NZ GAAP;
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(c)
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costs incurred by a person include all commissions, charges, losses, reasonable expenses (including legal fees on a solicitor and own client basis) and taxes incurred by that person;
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(d)
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a disposal of property includes:
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(i)
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(e)
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fairly disclosed means disclosed in writing in such manner and in such detail as to enable the Purchaser to make a reasonable and informed assessment of the matter concerned;
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(f)
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a guarantee includes an indemnity, letter of credit, legally binding letter of comfort, suretyship and other agreement the economic effect of which is to provide security, or otherwise assume responsibility, for the indebtedness or obligations of another person;
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(g)
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indebtedness includes any obligation (whether present or future, actual or contingent, secured or unsecured, joint or several, as principal, surety or otherwise) relating to the payment of money;
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(h)
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the liquidation of a person includes the dissolution, winding-up or bankruptcy of that person and any analogous procedure under the law of any jurisdiction in which that person is incorporated, domiciled, carries on business or has property;
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(i)
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loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any claim), including penalties, fines and interest and including any that are prospective or contingent and any the amount of which for the time being is not ascertained or ascertainable;
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(j)
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a person includes an individual, body corporate, an association of persons (whether corporate or not), a trust, a state, an agency of a state and any other entity (in each case, whether or not having separate legal personality);
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(k)
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property includes the whole and any part of the relevant person’s business, assets, undertaking, revenues and rights (in each case, present and future), and reference to any property includes any legal or equitable interest in it;
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(l)
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security interest means:
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(i)
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a mortgage, pledge, charge, lien, hypothecation, encumbrance, deferred purchase, title retention, finance lease, contractual right of set-off, flawed asset arrangement, sale-and-repurchase or sale-and-leaseback arrangement, order or other arrangement of any kind, the economic effect of which is to secure a creditor; and
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(ii)
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a “security interest” as defined in section 17(1)(a) of the Personal Property Securities Act 1999 in respect of which the relevant person is the debtor;
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(m)
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security interest with exclusions means a security interest, but does not include:
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(i)
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a lien arising solely by operation of law; or
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(ii)
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a security interest taken in collateral by a seller to the extent that it secures the obligation to pay all or part of the purchase price of that collateral or a debt from a lender providing acquisition finance for that collateral, where that collateral is purchased in the ordinary course of business of the buyer and the purchase price is paid within 60 days of supply;
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(iii)
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a netting or set-off arrangement entered into in the ordinary course of a person’s banking arrangements for the purpose of netting debit and credit balances; or
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(iv)
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a security deposit given in favour of a landlord;
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(n)
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subsidiary means:
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(i)
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a subsidiary as defined in sections 5 and 6 of the Companies Act and, where applicable, as if the company concerned were a company incorporated under the Companies Act; or
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(ii)
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a subsidiary in terms of any applicable financial reporting standard;
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(o)
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writing includes a facsimile transmission, an email communication and any means of reproducing words in a tangible and permanently visible form.
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1.3
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General References
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(a)
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Clause or Schedule
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(b)
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Varied document
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(c)
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Statutes
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(d)
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Financial references
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(e)
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Singular includes plural
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(f)
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Person includes successors
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(g)
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Gender
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(h)
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Vendor’s knowledge
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(i)
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Dates and times
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1.4
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Headings and Table of Contents
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1.5
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Nominee
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2
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SALE AND PURCHASE OF SHARES
|
2.1
|
Agreement to Sell Shares
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2.2
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Rights and Privileges
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2.3
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Dividend Payment
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2.3
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Omitted Assets
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2.4
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Purchaser Acknowledgement
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3
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CONDITIONS
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3.1
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Conditions Precedent
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(a)
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Prior Agreement ending
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(b)
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Release of personal guarantees
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3.2
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Benefit of Conditions
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3.3
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Non-fulfilment of Conditions
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(a)
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Any condition in this Agreement is not satisfied, or waived; and
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(b)
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Confirmation of satisfaction, or waiver as the case may be, of that condition is not notified by a party for whose benefit the condition is inserted to the other party or parties.
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3.4
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Consequences of Termination
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(a)
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No further effect:
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(b)
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No claim:
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(c)
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Accrued rights unaffected:
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(d)
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Return of deposit:
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4
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PAYMENT OF THE PURCHASE PRICE
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4.1
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Purchase Price
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(a)
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NZ$260,000.00 (being the deposit paid to the Company under the Prior Agreement and to be credited to the Vendor under this Agreement); and
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(b)
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NZ$2,251,050.00; and
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(c)
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The Adjustment Amount, expressed as a positive amount, if payable by the Purchaser, or a negative amount, if payable by the Vendor; and
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(d)
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The Stock Adjustment Amount, expressed as a positive amount, if payable by the Purchaser, or a negative amount, if payable by the Vendor; and
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(e)
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An adjustment to account for acquisitions and disposals of Company assets as per clause 4.1.1 below, expressed as a positive amount, if payable by the Purchaser, or a negative amount, if payable by the Vendor and otherwise payable in the same manner as the Adjustment Amount.
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4.1.1
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In addition to the other adjustments to the Purchase Price to be made in accordance with this Agreement the parties agree there shall be an adjustment to account for acquisitions and disposals of Company assets, expressed as a positive amount, if payable by the Purchaser, or a negative amount, if payable by the Vendor and otherwise payable in the same manner as the Adjustment Amount.
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4.2
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Payment
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The Purchaser shall satisfy and discharge its obligations to pay the Purchase Price to the Vendor under clause 4.1 by:
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(a)
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Crediting the deposit paid to the Company under the Prior Agreement to the Vendor under this Agreement; and
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(b)
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Paying $2,251,050 to the Vendor on the Completion Date; and
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(c)
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Paying any amount payable pursuant to 5.7(a) to the Vendor on the Adjustment Date; and
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(d)
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Paying any amount payable pursuant to clause 6.3 on the Stock Adjustment Date; and
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(e)
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Paying any amount payable to the Vendor pursuant to clause 4.1(e) (asset adjustment) on the Adjustment Date.
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4.3
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Vendor Refund
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5
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DETERMINATION OF ADJUSTMENT AMOUNT
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5.1
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Preparation of Closing Statement
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(a)
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As soon as is practicable after the Completion Date, the Purchaser must arrange for the Companies to prepare the Closing Statement. The Closing Statement must be prepared in accordance with the following, in order of priority:
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(i)
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the accounting principles, policies and procedures set out in Part B of Schedule 3 (the Specific Policies);
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(ii)
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to the extent not addressed by the Specific Policies, the accounting principles, policies and procedures adopted in the preparation of the March Financial Statements (the Consistent Policies); and
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(iii)
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to the extent not addressed by the Specific Policies and the Consistent Policies, NZ GAAP as at the Completion Date.
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(b)
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The Purchaser will arrange for the Company to deliver the draft final Closing Statement to the Vendor within 5 days after Completion.
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5.2
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Adjustment Amount
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(a)
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The Completion Balance exceeds the Target Balance, the Adjustment Amount will be expressed as a positive amount; or
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(b)
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The Target Balance exceeds the Completion Balance, the Adjustment Amount will be expressed as a negative amount.
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5.3
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Agreement on Closing Statement
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(a)
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The Closing Statement shall become final and binding upon the parties 10 business days following the Vendor’s Representative's receipt thereof unless the Vendor Representative gives written notice of its disagreement with any component of the Closing Statement (Dispute Notice) to the Purchaser prior to such date, setting out:
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(i)
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details of each of the matters in dispute;
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(ii)
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a separate dollar value for each of those matters; and
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(iii)
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full details of the reasons why each of those matters is disputed,
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(b)
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If a Dispute Notice is received by the Purchaser in accordance with clause 5.3(a), then the Closing Statement shall become final and binding upon the earlier of:
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(i)
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the date on which any disputes with respect to the matters specified in the Dispute Notice are resolved in writing by mutual agreement of the Vendor and the Purchaser; or
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(ii)
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the date on which any such disputes are finally resolved in writing by the Expert in accordance with clause 5.4.
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(c)
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During the 10 business day period following the delivery of a Dispute Notice, the Vendor Representative and the Purchaser shall seek in good faith to resolve any disputes with respect to the matters specified in the Dispute Notice. If the Vendor Representative and the Purchaser do not resolve all such disputes during that 10 business day period, the matters that remain in dispute in relation to the Closing Statement shall be referred for determination in accordance with clause 5.4.
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5.4
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Determination of Disputes in Relation to the Closing Statement
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(a)
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the matter in dispute must be referred to an independent internationally recognised firm of chartered accountants (the Expert) agreed by the Vendor Representative and the Purchaser or, in default of such agreement, appointed by the President for the time being of the Chartered Accountants of Australia and New Zealand or his/her New Zealand nominee, which firm will be requested to deliver its determination on the matter in dispute within 20 business days of being instructed to do so. Either the Vendor Representative or the Purchaser may make the referral;
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(b)
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the Expert shall consider only such matters that remain in dispute. For the avoidance of doubt, to the extent the Expert’s written statement purports to make any determination with respect to anything other than the disputed items and amounts submitted to the Expert, it shall be disregarded by the Parties;
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(c)
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the Expert shall determine any disputed items based solely on the provisions of this Agreement and the submissions of the Vendor Representative and the Purchaser and the responses to those submissions, and shall not conduct an independent review of any related financial statements;
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(d)
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the Expert’s determination of any value must be within the range for such items claimed by the Vendor Representative and the Purchaser. To the extent that the Expert’s determination assigns a value outside of this range, the value for such items claimed by either the Vendor Representative or the Purchaser that is closest to the Expert’s determination shall be used instead;
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(e)
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the Expert will review all relevant documents and information (including any submissions made by the Vendor Representative and the Purchaser) and it will state in a signed decision its opinion regarding the disputed item or items and, what adjustments (if any) are necessary to the Closing Statement and upon delivery of that decision to the Vendor Representative and the Purchaser the Closing Statement will be so adjusted and will become the final Closing Statement for the purposes of determining the Adjustment Amount;
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(f)
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that determination:
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(i)
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must be made by that firm as an expert, and not as an arbitrator (and the Arbitration Act 1996 will not apply to the firm’s consideration of the matter);
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(ii)
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must be delivered within 10 business days of that firm receiving its instructions or as soon as practicable thereafter; and
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(iii)
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will be in English and in writing, and will be final and binding on the parties;
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(g)
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the parties will co-operate with each other to provide the relevant firm with all information reasonably required by it to complete its determination.
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5.5
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Fees and Disbursements of Expert
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5.6
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Purchaser to Provide Access/Information
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(a)
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review the Closing Statement;
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(b)
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comply with other statutory or regulatory obligations of the Vendor;
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(i)
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the Vendor Representative will ensure that the least possible interference or disruption is caused to the operation of the Business;
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(ii)
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the Vendor Representative and the Vendor’s advisers will comply with all reasonable requirements of the Purchaser, including confidentiality, health and safety requirements;
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(iii)
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the Vendor Representative and the Vendor’s advisers have no rights to direct or provide instructions in relation to the operations of the Business;
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(iv)
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access to employees of each Company will only be provided with the prior approval of the Purchaser, acting reasonably; and
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(v)
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the Vendor Representative and the Vendor’s advisers (as applicable) shall only have access to records to defend a warranty, indemnity or other claims against the Vendor under the terms of this Agreement, with the prior approval of the Purchaser, acting reasonably.
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5.7
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Payment of the Adjustment Amount
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(a)
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A positive amount, the Purchaser must pay to the Vendor the Adjustment Amount; or
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(b)
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A negative amount, the Vendor must pay to the Purchaser the Adjustment Amount;
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5.8
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No Capitalised Interest [lowest price clause]
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(a)
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the Purchase Price is the lowest price the parties would have agreed for the sale and purchase of the Shares, on the date this Agreement was entered into, if payment would have been required in full at the time the first right in the contracted property (being the Shares) was transferred;
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(b)
|
the Purchase Price is the value of the Shares; and
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(c)
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they will compute their taxable income for the relevant period on the basis that the Purchase Price includes no capitalised interest and will file their Tax returns accordingly.
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5.9
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Default Interest
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5.10
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Calculation of Interest
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5.11
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Payments
|
6
|
STOCK ADJUSTMENT
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6.1
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Estimated Stock
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6.2
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Stocktake
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6.3
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Excess Stock
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6.4
|
Insufficient Stock
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6.5
|
Set-Off
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6.6
|
GST
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7
|
INTERIM PERIOD
|
7.1
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Target Balance Statement
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7.2
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Conduct of the Business
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(a)
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turnover and profitability are maintained and all assets, including goodwill, are conserved and protected; and
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(b)
|
the Company does not change its name nor grant to any other person the right to use its name; and
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(c)
|
the Company does not grant any right to any other person to use any of its Intellectual Property; and
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(d)
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the Company does not without the consent of the Purchaser dispose of any of its assets, or purchase any assets except in the ordinary course of trade, nor enter into any contract or arrangement to do so. If the Company does (with the consent of the Purchaser) enter into any such contract it must be on an arm’s length commercial basis and for fair market value; and
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(e)
|
the Company does not terminate or materially vary an existing contract; and
|
(f)
|
the Company does not borrow, grant security over any of its assets, or guarantee the obligations of a Third Party; and
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(g)
|
the Company does not enter into any capital commitment in excess of NZ$10,000 without prior notification to the Purchaser;
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(h)
|
the Company does not make any material change to any of its prices or trading terms; and
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(i)
|
the assets and profitability of the Company will remain fully insured against all usual risks; and
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(j)
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in respect of any lease, the Company does not negotiate or grant a renewal, surrender, variation, or rent review; and
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(k)
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the Company does not increase, reduce, or otherwise alter its share capital or grant any option for the issue of shares or other securities; and
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(l)
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the Company does not alter its constitution; and
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(m)
|
the Purchaser is promptly notified of any legal claims or proceedings, investigations or adverse events affecting the Company (whether as claimant or defendant) or involving its directors, officers, or employees, and also of any threatened claims or proceedings or circumstances likely to lead to them, and will not admit, settle, compromise or otherwise deal with any such matter except in consultation with the Purchaser, and with the Purchaser’s prior written consent;
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(n)
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if the Company wishes to employ or engage the service of any further person it does not do so without the Purchaser’s consent (not to be unreasonably withheld).
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7.3
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Vendor to notify Changes
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8
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COMPLETION
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8.1
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Time and Place of Completion
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8.2
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Repayment of Shareholder Debts
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8.3
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Repayment of Advances and Releases
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8.4
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Obligations of Vendor at Completion
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(a)
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Share Transfers and Certificates
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(b)
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Waivers
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(c)
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Other documents
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(d)
|
Resolution
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(e)
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Resignations
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(f)
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Appointments
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(g)
|
Non-Competition Deed
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(h)
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Consent
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(i)
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Evidence
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(j)
|
Release of Securities
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(k)
|
All Business Records of the Company including:
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(i)
|
All minute books and registers required by the Companies Act complete to Completion;
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(ii)
|
All accounting records for the seven (7) year period preceding the Settlement Date (as are required by the Tax Administration Act 1984 and by the Companies Act); and
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(iii)
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All documents of title, certificates, licences, deeds and other documents in respect of property and rights entitling the Company to carry on Business; and
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(iv)
|
All policies of insurance held by or on behalf of the Company together with evidence that all premiums due to Completion have been paid in full;
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(l)
|
Banking
|
(m)
|
Bank Authorities
|
8.5
|
Payment of Purchase Price
|
8.6
|
Transfer of Ownership
|
9
|
DEFAULT AND REMEDIES
|
9.1
|
Payment Default
|
9.2
|
Settlement Notice
|
9.3
|
Failure to comply with Settlement Notice
|
(a)
|
If the Settlement Notice was served by the Vendor, the Vendor may:
|
(i)
|
Sue the Purchaser for specific performance; or
|
(ii)
|
Cancel this Agreement by written notice to the Purchaser and either (A) forfeit and retain the Deposit as compensation; or (B) sue the Purchaser for damages.
|
(b)
|
If the Settlement Notice was served by the Purchaser, the Purchaser may:
|
(i)
|
Sue the Vendor for specific performance; or
|
(ii)
|
Cancel this Agreement by written notice to the Vendor and require repayment of the deposit and any other moneys paid by the Purchaser under it. The Purchaser will in such event also be entitled to demand from the Vendor Default Interest on the moneys paid by it under this Agreement calculated on a daily basis from the date they were first paid out by the Purchaser until the date they are repaid by the Vendor.
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9.4
|
Calculation of Damages
|
9.5
|
Deemed Cancellation on Resale
|
9.6
|
Actions / Inactions without Prejudice to Other Rights
|
9.7
|
No Presumed Breach of Essential Term
|
10
|
WARRANTIES AND CLAIMS GENERALLY
|
10.1
|
Effective Warranties
|
10.2
|
Continuing Warranties
|
10.3
|
Limitations on Warranties
|
(a)
|
Any exception or qualification disclosed in a Disclosure Letter which is given to the Purchaser prior to Settlement; and
|
(b)
|
Anything which is authorised by or required to be done in accordance with this Agreement; and
|
(c)
|
Any other exception expressly agreed by the Parties; and
|
(d)
|
Anything which is disclosed or is actually known to the Purchaser or is within the public domain; and
|
(e)
|
Any matter discoverable by a search of any public registers.
|
10.4
|
Best of Knowledge and Belief
|
10.5
|
Pre-Settlement
|
10.6
|
Duty to Disclose Breach
|
10.7
|
Cancellation Notice
|
10.8
|
Independency
|
10.9
|
Reliance on Warranties
|
10.10
|
Limitation of Claims for Breach of Warranty
|
10.11
|
Reduction of Purchase Price
|
10.12
|
Exclusions from Claims
|
10.13
|
Claims Procedures
|
(a)
|
the Purchaser shall promptly take all reasonable steps to mitigate any loss;
|
(b)
|
the Covenantor shall not be liable to the Purchaser to the extent that the Purchaser or the Company actually received payment from a third party (including any relevant insurer) in respect of any relevant loss and if the Purchaser has received any payment from the Covenantor in respect of any relevant loss, the Purchaser or the Company will be required to account to the Covenantor for any amount received from any third party (including any relevant insurer) the intent being that the Purchaser should not receive a double recovery;
|
(c)
|
the Purchaser will within the relevant period specified in clause 10.10 give notice to the Covenantor’s Solicitors and will ensure that the Purchaser does not (and the Company does not) make any payment or admission of any liability (whether to an insurer, any third party, or otherwise) in respect of that event or claim, without the prior written consent of the Covenantor’s Solicitors, such consent not to be unreasonably withheld or delayed;
|
10.14
|
Allowances
|
(a)
|
the amount by which any Tax for which any Company is reduced or extinguished as a result of any such liability; and
|
(b)
|
the extent (if any) to which a specific provision has been made in the final Closing Statement in respect of the matter which is the subject of that claim as evidenced by relevant work papers and books of account.
|
10.15
|
No Double Claims
|
11
|
NON-COMPETITION
|
11.1
|
Undertakings
|
(a)
|
During the Restraint Period within the Restraint Area directly or indirectly carry on or be interested, engaged or concerned (whether on their own account or in partnership with or as manager, agent, director, shareholder, employee or beneficiary under a trust, or in any other capacity), in any business, venture or other activity that is the same or substantially similar to the Business; or
|
(b)
|
During the Restraint Period, whether on their own account or for any other person, solicit, entice, or endeavour to entice away any employee, officer or consultant of the Company, any customer of the Company, or any employee, officer, consultant, or customer of a Related Party of the Company; or
|
(c)
|
At any time disclose or use Confidential Information or other Intellectual Property Rights of the Company or its Related Parties.
|
11.2
|
Undertakings Independent
|
11.3
|
Exceptions
|
11.4
|
Reasonable Undertakings
|
(a)
|
the value of the Shares upon which the Purchase Price has been set and accepted by the Purchaser is dependent upon the giving the undertaking contained in clause 11.1;
|
(b)
|
the undertaking contained in clause 11.1 is reasonable; and
|
(c)
|
the undertaking contained in clause 11.1 has been given for the protection of the Goodwill.
|
11.5
|
Modification
|
11.6
|
Assignment
|
11.7
|
Equitable Relief
|
11.8
|
Privity
|
12
|
CONFIDENTIALITY AND ANNOUNCEMENTS
|
12.1
|
Confidentiality
|
(a)
|
where the information is in the public domain as at the date of this Agreement (or subsequently becomes in the public domain other than by reason of a breach of this clause by a party or a Related Company of that party);
|
(b)
|
with the prior written consent of the other parties;
|
(c)
|
to any associated entity of the party that has a legitimate need to use that information;
|
(d)
|
to any director, officer, employee, financier or adviser of the party who has a clear and legitimate need to use that information in relation to the transaction contemplated by this Agreement; or
|
(e)
|
pursuant to any applicable law or the rules of any relevant stock exchange or an order of any Court of competent jurisdiction or any Governmental Authority provided that if disclosure is required to be made under this clause 12.1(e), to the extent permitted by law or by the rules of any relevant stock exchange, notice of such disclosure will be given by the party required to make the disclosure, to any party(ies) to whom the disclosure may affect, at least two business days prior to such disclosure being made.
|
12.2
|
Public Announcements
|
13
|
ASSIGNMENT
|
13.1
|
Successors
|
13.2
|
No Assignment by Vendor
|
14
|
NOTICES
|
(b)
|
in the case of a communication sent by email, on the business day on which it was despatched or, if despatched after 5.00pm (in the place of receipt) on a business day, on the next business day (in the place of receipt) after the date of despatch provided in each case the computer system used to transmit the communication:
|
(i)
|
has received an acknowledgement of receipt to the email address of the person transmitting the communication; and
|
(ii)
|
has not generated a record that the communication has failed to be transmitted.
|
15
|
COSTS
|
16
|
REMEDIES AND WAIVERS
|
17
|
DISPUTE RESOLUTION
|
17.1
|
Dispute Resolution Process
|
(a)
|
the matter shall be referred for a decision to a suitably qualified independent Expert appointed by the Vendor and the Purchaser (or. if they cannot reach agreement on such appointment within two (2) Working Days, by a person appointed by the President for the time being of the Auckland District Law Society Inc., on application of either the Vendor or the Purchaser); and
|
(b)
|
the Expert may, at his or her discretion accept written and/or oral submissions from the Vendor and/or the Purchaser in respect of the dispute; and
|
(c)
|
in reaching their decision the Expert is to act as an expert and not as an arbitrator; and
|
(d)
|
the Expert must give his or her determination in writing, with reasons; and
|
(e)
|
the Vendor and the Purchaser shall each bear their own costs and expenses in connection with the determination. All costs and expenses of the Expert shall be borne between the Parties as the Expert may determine; and
|
(f)
|
the determination of any matter under this clause shall be final and binding upon the parties.
|
17.2
|
Primacy of Dispute Resolution Process
|
18
|
MISCELLANEOUS
|
18.1
|
Amendments
|
18.2
|
Partial Invalidity
|
18.3
|
No Merger
|
18.4
|
Further Assurances
|
18.5
|
Entire Agreement
|
18.6
|
Counterparts
|
(a)
|
This Agreement may be executed (including signatures shown on PDF copies) in any number of counterparts each of which is to be deemed an original, but all of which together will constitute a single instrument.
|
(b)
|
A party may enter into this Agreement by executing any counterpart.
|
(c)
|
This Agreement may be executed on the basis of an exchange of facsimile or PDF copies and execution of this Agreement by such means is to be a valid and sufficient execution.
|
18.7
|
Process Agent
|
18.8
|
Governing Law
|
18.9
|
Jurisdiction
|
Signed by
|
)
|
|
ROGER JOHN RUSHTON as Trustee of the
|
)
|
|
RUSHTON FAMILY TRUST as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
ELIZABETH GLENYS SILVESTER as Trustee of the
|
)
|
|
RUSHTON FAMILY TRUST as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
PETER THOMAS WARD BAKER as Trustee of the
|
)
|
|
RUSHTON FAMILY TRUST as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
ROGER JOHN RUSHTON as Trustee of the
|
)
|
|
JETSTREAM TRUST as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
ANGELA GILLESPIE as Trustee of the
|
)
|
|
JETSTREAM TRUST as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
HARRIS TATE TRUSTEES LIMITED
|
)
|
|
as Trustee of the JETSTREAM TRUST
|
)
|
|
as Vendor
|
)
|
|
by its Directors:
|
)
|
|
)
|
Signed by
|
)
|
|
ROGER JOHN RUSHTON as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
ANGELA GILLESPIE as Vendor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
CONCIERGE TECHNOLOGIES INC as Purchaser
|
)
|
|
by its authorised officer:
|
)
|
David W. Neibert, CFO
|
Signed by
|
)
|
|
ROGER JOHN RUSHTON as Covenantor
|
)
|
|
in the presence of:
|
)
|
Witness Signature:
|
|
Name:
|
|
Address:
|
|
Occupation:
|
Signed by
|
)
|
|
GOURMET FOODS LIMITED
|
)
|
|
as the Company
|
)
|
|
by its Directors:
|
)
|
|
)
|
Address details for the Purchaser:
Address: 29115 Valley Center Road
K-206
Valley Center CA 92082
United States of America
Email Address: ngerber@conciergetcehnology.net
Contact Name: Nicholas Gerber
|
David Quigg
Quigg Partners
Level 7, The Bayleys Building
36 Brandon Street
Wellington
New Zealand
Email: davidquigg@quiggpartners.com
|
Address details for the Vendor and Covenantor:
Address: c/- Roger Rushton
25 Beach Road
Otumoetai, Tauranga 3110
New Zealand
Email Address: r.rushton@xtra.co.nz
Contact Name: Roger Rushton
David Foster
Harris Tate Limited
29 Brown Street
Tauranga
New Zealand
Email: david@harristate.com
|
1
|
THE SHARES
|
1.1
|
The Sale Shares
|
(a)
|
The Vendor is the only owner of the Shares.
|
(b)
|
The Vendor’s right to sell them to the Purchaser is not restricted in any way. There are no pre-emptive rights, options or rights of first refusal or rights to acquire shares or like rights granted to any other person, other than those which will be waived by other shareholders at Completion. The Purchaser will, on Completion, acquire full legal and beneficial ownership of the Shares, free of any Encumbrance.
|
(c)
|
The Shares are all of the issued shares of the Company.
|
(d)
|
The Shares have been lawfully issued.
|
(e)
|
The Company is not under any obligation to issue further shares or like rights and has not granted any person the right to call for the issue of any shares or other rights in the Company at any time.
|
(f)
|
The Company has not passed a resolution to alter its share capital, nor to alter rights attaching to any Shares and the Vendor will not permit it to do so before Completion.
|
(g)
|
There are no known restrictions or obligations which could affect the Vendor’s ability to give full effect to this Agreement.
|
1.2
|
Authorisations
|
(a)
|
The Vendor has obtained all corporate and other authorisations necessary to become bound by it, and there are no restrictions or other obligations known to the Vendor which could affect the Vendor’s ability to give full effect to this agreement.
|
2
|
THE COMPANY STRUCTURE
|
2.1
|
Corporate Organisation
|
(a)
|
The Company is a limited liability company that has been properly incorporated under the Companies Act.
|
(b)
|
The Company has done all things required for it to carry on business in all jurisdictions in which it trades.
|
(c)
|
The Company has no subsidiaries.
|
2.2
|
Company Name
|
3
|
SOLVENCY
|
4
|
ADVERSE EFFECT
|
4.1
|
Material Contracts
|
4.2
|
Notice
|
(a)
|
from any local or government authority or other statutory body; or
|
(b)
|
under the Resource Management Act 1991 and its amendments; or
|
(c)
|
from a landlord of the Premises; or
|
(d)
|
from any other party
|
4.3
|
Consent
|
5
|
CONDUCT OF THE BUSINESS
|
5.1
|
Interim Period
|
6
|
TURNOVER
|
6.1
|
Turnover
|
7
|
FINANCIAL STATEMENTS
|
7.1
|
Accounts
|
(a)
|
The Accounts present a true and fair view of the Company’s financial affairs and have been prepared in the manner customarily adopted by the Company and in accordance with the requirements of the Financial Reporting Act 2013 (or earlier applicable legislation) and NZ GAAP; and
|
(i)
|
are not affected by any unusual or non-recurring item; and
|
(ii)
|
Take account of all gains and losses (whether realised or unrealised, arising from foreign currency transactions); and
|
(iii)
|
Include all reserves and provisions that are necessary to cover any liability for Tax of the Company; and
|
(iv)
|
Subject to subclause (b) below include all actual and contingent liabilities of the Company as at the Balance Date.
|
(b)
|
The Accounts do not include accruals for holiday pay or sick leave.
|
(c)
|
Except as provided in the Accounts, all accounts receivable, loans, and all other amounts recoverable by the Company shown in the Accounts can be recovered in the ordinary course of business or according to their usual terms. The recorded value of each account receivable is the amount actually recoverable by the Company.
|
8
|
TAX
|
8.1
|
Tax
|
(a)
|
The Company has completed and filed all returns, notices, information and disclosures which ought to be completed and filed for the purposes of Tax on or before their due date, and will continue to do so until Completion.
|
(b)
|
All Tax returns were accurate and correctly completed and have not been disputed by a Tax Authority.
|
(c)
|
All liability for Tax for the periods up to and including the Completion Date has been properly and fully provided for the Accounts.
|
(d)
|
The Business Records include all accounts, returns, documents and information which are required to be maintained or retained for Tax purposes.
|
(e)
|
The Company has paid all Tax when due and has also complied with its withholding tax and similar obligations (including PAYE and KiwiSaver).
|
Name of Shareholder / Vendor
|
Number of Shares
|
Type of Share Sold
|
||
Peter Thomas Ward Barker, Roger John Rushton and Elizabeth Glenys Silvester as trustees of the RUSHTON FAMILY TRUST
|
599
|
Ordinary
|
||
Angela Gillespie, Harris Tate Trustees Limited, and Roger John Rushton as trustees of the JETSTREAM TRUST
|
599
|
Ordinary
|
||
Roger John Rushton
|
1
|
Ordinary
|
||
Angela Gillespie
|
1
|
Ordinary
|
Target ($)
|
Completion ($)
|
||||
Current Assets
|
|||||
Accounts Receivable
|
[x] |
[●]
|
|||
Prepayments
|
[X] |
[●]
|
|||
Cash
|
[X] |
[●]
|
|||
Sub-total
|
[x |
[●]
|
|||
Current Liabilities
|
|||||
Accrued Expenses
|
[●]
|
[●]
|
|||
Employee Entitlements (excluding holiday pay)
|
[●]
|
[●]
|
|||
Holiday Pay (approximately)
|
$ | 75,000 | |||
Accounts Payable
|
[●]
|
[●]
|
|||
Sub-total
|
[x] |
[●]
|
|||
Balance
|
$ | 0 |
[●]
|
||
Adjustment Amount (Target Balance less Completion Balance)
|
[●]
|
||||
1.
|
The Closing Statement shall be drawn up as at immediately prior to Completion on the Completion Date (the Effective Time). No account shall be taken of events taking place after the Effective Time, and regard shall only be had to information available to the parties up to the date that the draft Closing Statement is delivered by the Purchaser to the Vendor.
|
2.
|
The Closing Statement shall be prepared with those specific procedures that would be adopted at a financial year end, including detailed analysis of accruals and cut-off procedures.
|
3.
|
For the purposes of the Closing Statement, the Completion Date shall be treated as the end of a Tax accounting period. Any unpaid income tax, fringe benefits tax, GST or payroll tax liabilities which are referable to any period up to and including Completion which relate to the conduct of the Business but which are not due for payment by the Vendors or the Company until after Completion will be provided for in the Completion Accounts.
|
4.
|
No amounts shall be included in the Closing Statement in relation to deferred tax assets or deferred tax liabilities.
|
5.
|
The provisions of this Schedule 3 shall be interpreted so as to avoid double counting (whether positive or negative) of any item to be included in the Closing Statement.
|
6.
|
No minimum materiality limits shall be applied in the preparation and review of the Closing Statement.
|
7.
|
The Closing statement shall include an accrual for any obligation as at the Effective Time with respect to Employee Entitlements, including an accrual for relevant on-costs including but not limited to superannuation, payroll tax and workers compensation.
|
8.
|
Accounts Payable shall include a full accrual for all amounts payable by the Company after Completion for goods and services received prior to Completion.
|
9.
|
Any accounts receivable aged more than 21 days, and where the customer is in liquidation, receivership or administration, where the debt has been placed into the hands of lawyers or collection agents for collection or for any other debt where there is a doubt about the full collection being foreseeable will not form part of the Accounts receivable.
|
10.
|
Prepayments shall be excluded to the extent that the benefit of such goods and services are not received or receivable by the Company after Completion.
|