EXHIBIT 2.2
DATED 1997
FAI HOME SECURITY HOLDINGS NEW ZEALAND LIMITED
AND
FAI HOME SECURITY (ENZED) LIMITED
NZ ASSET PURCHASE AGREEMENT
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................... 1
1.1 Definitions....................................................... 1
1.2 Interpretation.................................................... 4
1.3 Payments.......................................................... 5
2. SALE AND PURCHASE...................................................... 5
2.1 Sale of the Business.............................................. 5
2.2 Business Assets................................................... 5
3. SPECIFIED CONDITIONS................................................... 6
3.1 Condition Precedent............................................... 6
3.2 Termination....................................................... 6
3.3 Termination....................................................... 6
3.4 Condition Subsequent.............................................. 6
3.5 Effect of Termination............................................. 7
4. PURCHASE PRICE......................................................... 7
4.1 Price for Business Assets......................................... 7
4.2 Application of Purchase Price for Business
Assets............................................................ 7
4.3 Final Purchase Price is the Lowest Price.......................... 8
5. COMPLETION............................................................. 8
5.1 Time for Completion............................................... 8
5.2 Possession and title.............................................. 8
5.3 Interdependency................................................... 8
5.4 Delivery by Vendor................................................ 8
5.5 Benefit of Property Leases, Equipment Leases, Business Contracts
and Statutory Licences............................................ 9
5.6 Purchaser's Obligations........................................... 9
6. GENERAL OBLIGATIONS.................................................... 9
6.1 Money Received by Vendor.......................................... 9
6.2 Money Received by Purchaser....................................... 9
6.3 Third Party Consents.............................................. 10
7. CONTRACTS AND LIABILITIES.............................................. 10
7.1 Business Contracts................................................ 10
7.2 Where No Consent.................................................. 10
7.3 Business Liabilities.............................................. 11
8. RISK.................................................................... 11
9. EMPLOYEES............................................................... 11
9.1 New Employment..................................................... 11
9.2 Liability.......................................................... 11
9.3 Cooperation........................................................ 11
9.4 Notification to Purchaser of Employees
Transferring....................................................... 12
9.5 Employment Offer................................................... 12
10. GOODS AND SERVICES TAX.................................................. 12
11. BOOKS AND RECORDS....................................................... 12
12. VENDOR'S WARRANTIES..................................................... 12
13. PURCHASER'S WARRANTIES.................................................. 13
14. MISCELLANEOUS........................................................... 13
14.1 Entire Agreement.................................................. 13
14.2 Costs............................................................. 13
14.3 Notices........................................................... 13
14.4 Governing Law..................................................... 14
14.5 Counterparts...................................................... 14
14.6 Non-Waiver........................................................ 14
14.7 Further assurance................................................. 14
14.8 Non-merger........................................................ 15
SCHEDULE 1
LEASED PROPERTIES....................................................... 16
SCHEDULE 2
WARRANTIES.............................................................. 17
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NZ ASSET PURCHASE AGREEMENT
THIS AGREEMENT dated 1997
BETWEEN FAI HOME SECURITY HOLDINGS NEW ZEALAND LIMITED a company duly
incorporated in New Zealand and having its registered office at
Auckland, as trustee for the FAI Home Security (NZ) Trust ('VENDOR')
AND FAI HOME SECURITY (ENZED) LIMITED a company duly incorporated in New
Zealand and having its registered office at Auckland ('PURCHASER')
RECITALS
A. The Vendor carries on the business of selling, installing and servicing
residential security alarm systems through a distributorship network
operating in Auckland and elsewhere in New Zealand.
B. The Vendor has agreed to sell to the Purchaser and the Purchaser has agreed
to purchase from the Vendor all of the assets of the business described in
Recital A on the terms and conditions set out in this agreement.
AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement (including the recitals) and the schedules unless the
context otherwise requires the following expressions shall bear the
following meanings:
'AUTHORISATIONS' means any certificate, licence, approval, permit,
authority or exemption from, by or with a Governmental Agency necessary to
carry on the Business as currently operated;
'BOOKS AND RECORDS' include all notices, correspondence, orders, enquiries,
books of account and other documents and all computer disks or tapes or
other records in relation to the Business;
'BUSINESS' means the business described in Recital A carried on by the
Vendor at the date of this agreement and carried on by the Purchaser after
Completion;
'BUSINESS ASSETS' means the assets of the Business agreed to be transferred
to the Purchaser pursuant to CLAUSE 2;
'BUSINESS CONTRACTS' means all the contracts and engagements of the Vendor
relating to the Business and which are not fully performed as at Completion
together with all other such contracts and engagements which were entered
into by the Vendor after the date of this agreement and prior to the
Completion Date and which are not fully performed as at Completion but
excludes Business Payables;
'BUSINESS DAY' means a day (other than a Saturday or Sunday) on which
registered banks (as that expression is defined in the Reserve Bank of New
Zealand Act 1989) are customarily open for business in Auckland;
'BUSINESS GOODWILL' means all the goodwill of the Vendor in relation to the
Business;
'BUSINESS INFORMATION' means all information and records including all
customer lists and databases, sales information, business plans and
forecasts and all computer software and computer records held by the Vendor
in relation to the Business;
'BUSINESS LIABILITIES' means the obligations of the Vendor under the
Business Contracts, including Warranty Provisions, but excluding Business
Payables;
'BUSINESS PAYABLES' means all liabilities of the Vendor other than the
Warranty Provisions;
'BUSINESS PLANT AND MACHINERY' means all the plant, machinery, equipment,
computer and communication hardware, loose tools, fittings, furniture,
partitioning, books, stationery, vehicles and other goods used by or in the
Business as at Completion;
'BUSINESS RECEIVABLES' means all payments due to the Vendor in relation to
the Business as at Completion;
'BUSINESS STOCKS' means all stocks, stocks in transit, raw materials, work
in progress, finished goods or completed services and other stock in trade
and packaging material held or ordered by the Vendor for the purposes of
the Business as at Completion;
'COMPLETION' means the completion of the sale and purchase of the Business
Assets in the manner specified in CLAUSES 4 AND 5;
'COMPLETION DATE' means the date on which Completion occurs in accordance
with CLAUSE 5;
'EMPLOYEE ENTITLEMENTS' means, in respect of an Employee, all accrued:
(a) wages, salary, commissions and bonuses;
(b) sick leave, loadings and contributions to superannuation, statutory
compensation or other funds;
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(c) long service leave and annual leave (including loadings),
owing and due to or in respect of that Employee in respect of that
Employee's contract of employment with the Vendor whether arising under
contract, statute, award or otherwise;
'EMPLOYEES' means all the employees employed by the Vendor in the Business
at the date of this agreement;
'ENCUMBRANCE' means any mortgage, charge, pledge, lien or other security
interest or encumbrance (other than title retention in respect of trading
stock or seller's liens arising in the ordinary course of the Business);
'EQUIPMENT LEASES' means all those leases of, and agreements to hire,
Business Plant and Machinery which is used in the Business but not owned by
the Vendor;
'FAI HSH' means FAI Home Security Holdings Pty Limited (ACN 003 125 264);
'FINAL PURCHASE PRICE' means the final purchase price for the relevant
Business Assets determined pursuant to CLAUSE 4.3;
'FLOAT' means the initial public offer registered under the Securities ▇▇▇
▇▇▇▇ (US) by HSI of 500,000 ordinary shares in HSI and concurrent sale of
5,500,000 ordinary shares in HSI by FAI HSH;
'HSI' means Home Security International Inc.
'GOVERNMENTAL AGENCY' means the government of any country and any state,
territory, municipality or other political subdivision of a country, and
any administrative or judicial body, department, commission, authority,
tribunal, agency or entity of any such government;
'INTELLECTUAL PROPERTY' means all intellectual property and proprietary
rights (whether registered or unregistered) owned or used by the Vendor in
the conduct of the Business.
'LEASED EQUIPMENT' means the subject matter of the Equipment Leases;
'NZ DEBT' means the debt payable by the Purchaser to the Vendor pursuant to
CLAUSE 4.2(b);
'NZ SHARE SALE AGREEMENT' means the agreement entered into between the
Vendor and FAI HSH on or about the date of this agreement pursuant to which
the Vendor has agreed to sell to FAI HSH and FAI HSH has agreed to buy all
of the issued capital of the Purchaser;
'PROPERTY LEASES' means the leases to the Vendor of the properties, the
principal terms of which are set out in Schedule 1;
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'PURCHASE PRICE' means the price payable for the Business specified in
CLAUSE 4.1;
'SPECIFIED CONDITIONS' means the conditions outlined in CLAUSE 3.1;
'STATUTORY LICENCES' means any statutory licences, consents, approvals or
authorisations required to carry on the Business, including without
limitation those referred to in SCHEDULE 3;
'UNDERWRITER' means National Securities Corporation, Inc.
'UNDERWRITING AGREEMENT' means an agreement in the form set out in SCHEDULE
4 pursuant to which the Underwriter underwrites the Float;
'WARRANTIES' means the warranties given by the Vendor, pursuant to CLAUSE
12 and all other warranties, undertakings, covenants and representations
given or made by the Vendor, under this agreement or which have become
terms of this agreement;
'WARRANTY PROVISIONS' means the book value of the provisions for warranty
expenses and security call-out included in the Books and Records of the
Vendor.
1.2 INTERPRETATION
In the construction and interpretation of this agreement and the schedules,
except to the extent that the context requires modification:
(a) references to recitals, clauses and schedules are to recitals, clauses
and schedules of this agreement;
(b) the headings are for convenience only and shall not affect the
interpretation of this deed;
(c) words importing the singular number include the plural and vice versa
and references to any gender includes every gender and references to
persons includes corporations and unincorporated bodies of persons,
government or semi-government bodies or agencies or political
subdivisions of them;
(d) references to 'written' and 'in writing' includes any means of visible
representation;
(e) reference to any document includes all modifications and replacement
documents from time to time;
(f) references to any statute or regulation are to New Zealand statutes
and regulations and shall with all necessary modifications apply to
any modification or re-enactment;
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(g) references to time are to New Zealand time;
(h) references to 'dollars' and '$' are references to New Zealand dollars;
and
(i) the schedules form part of this agreement and shall have the same
force and effect as if expressly set out in the body of this agreement
and any reference to this agreement shall include the schedules.
1.3 PAYMENTS
If the date for payment of any amount under this agreement, or the date for
the doing of any act required by this agreement, is not a Business Day,
then that payment shall be made or act shall be done on the next day which
is a Business Day. Unless specified to the contrary in this agreement, all
payments to be made under this agreement shall be paid in immediately
available funds by no later than 3.00 pm on the due date for payment.
2. SALE AND PURCHASE
2.1 SALE OF THE BUSINESS
Subject to the terms and conditions of this agreement, on the Completion
Date the Vendor shall sell and the Purchaser shall purchase the Business
Assets and the Purchaser shall assume the Business Liabilities.
2.2 BUSINESS ASSETS
There shall be included in the sale under CLAUSE 2.1 of this agreement the
following Business Assets:
(a) the Business Goodwill;
(b) the Business Plant and Machinery;
(c) the Business Stocks and (to the extent permitted by law or contract)
the Vendor's rights to (and copies of) advertising and promotional
material held lawfully by the Vendor for the purposes of the Business
as at Completion;
(d) the benefit of the Business Contracts (but not any Business
Receivables);
(e) the Business Information;
(f) to the extent permitted by law, the benefit of the Statutory Licences.
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3. SPECIFIED CONDITIONS
3.1 CONDITION PRECEDENT
Completion of this agreement is conditional upon:
(a) the approval by a special resolution of the shareholders of the
Purchaser of the transactions contemplated in this agreement pursuant
to section 129 of the Companies ▇▇▇ ▇▇▇▇; and
(b) if necessary, the approval, on terms satisfactory to HSI, to
Completion of the sale to the Purchaser of the NZ Shares from the
Overseas Investment Commission of New Zealand pursuant to the Overseas
Investment Regulations 1985.
3.2 TERMINATION
If the conditions set out in CLAUSE 3.1 are not satisfied on or before 30
June 1997, or a later date agreed by the parties in writing, then either
the Purchaser or the Vendor may at any time before Completion terminate
this agreement by giving notice in writing to the other.
3.3 TERMINATION
On service of a notice under CLAUSE 3.2 this agreement has no further
effect and all parties are released from their obligations to further
perform this agreement.
3.4 CONDITION SUBSEQUENT
The Purchaser or the Vendor may terminate this agreement by giving notice
to the other if:
(a) the Underwriting Agreement is terminated before completion of the
Underwriting Agreement; or
(b) either or both of the following conditions subsequent are not
fulfilled within 24 hours after Completion:
(i) the Float has gone effective;
(ii) the Underwriting Agreement has been executed.
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3.5 EFFECT OF TERMINATION
If this agreement terminates in accordance with CLAUSE 3.4, the rights and
obligations of the Parties under this agreement, except for this CLAUSE
3.5, will terminate and, unless the Vendor waives its rights under this
clause 3.5, the Parties must take all necessary steps to:
(a) vest title and possession of the Business Assets in the Vendor; and
(b) otherwise restore the rights and obligations of the Parties to those
rights and obligations that they would have had if this agreement had
not been entered into without loss or gain to any of the Parties.
4. PURCHASE PRICE
4.1 PRICE FOR BUSINESS ASSETS
The consideration for the purchase of the Business Assets ('PURCHASE
PRICE') is:
(a) the market value, as confirmed by an audit certificate to be provided
at Completion by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, plus GST (if any) of the intangible
assets of the Business, namely:
(i) the Business Information and Statutory Licences;
(ii) the Business Goodwill, including the benefit of the Business
Contracts (but not any Business Receivables); and
(b) the market value of the Business Plant and Machinery and the Business
Stocks, net of the Warranty Provision as confirmed by an audit
certificate to be provided at Completion by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
4.2 APPLICATION OF PURCHASE PRICE FOR BUSINESS ASSETS
The Purchase Price for:
(a) the Business Assets referred to in CLAUSE 4.1(a) shall be paid or
satisfied by the Purchaser issuing to the Vendor 999,999 fully paid
ordinary shares; and
(b) the Business Assets referred to in CLAUSE 4.1(b) shall be paid or
satisfied by the Purchaser paying to the Vendor, within 30 days
following the Completion Date, the amount set out in the Audit
Certificate provided pursuant to CLAUSE 4.1(b) ('NZ DEBT').
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4.3 FINAL PURCHASE PRICE IS THE LOWEST PRICE
The parties agree that the Final Purchase Price for the Business Assets is
the lowest price that the parties would have agreed upon as at the date of
this agreement for this sale by the Vendor of the Business Assets upon the
basis of payment in full on the Completion Date.
5. COMPLETION
5.1 TIME FOR COMPLETION
Completion shall occur immediately prior to completion of the NZ Share Sale
Agreement.
5.2 POSSESSION AND TITLE
Possession of and title to the Business Assets shall be given and taken
with effect from the close of business on the Completion Date at which time
the Vendor sells, transfers and assigns the Business Assets to the
Purchaser and the Purchaser shall buy and take over the Business Assets.
5.3 INTERDEPENDENCY
Completion shall consist of the parties taking all the steps specified in
CLAUSES 5.4 AND 5.5. The carrying out of the Completion steps will be
deemed to take place simultaneously and no delivery or payment will be
deemed to have been made until all deliveries and payments under this
agreement due to be made at Completion have been made.
5.4 DELIVERY BY VENDOR
At Completion the Vendor shall deliver to the Purchaser:
(a) all the Business Assets which are capable of transfer by delivery,
with the intent that title shall pass by delivery;
(b) the Books and Records;
(c) the Business Information;
(d) subject to CLAUSE 5.5 all leases and documents giving rights in
relation to the Property Leases (including any documents varying,
revising or renewing such leases) and duly executed deeds of
assignment of the Property Leases consented to by the Landlords; and
8
(e) such other documents as may reasonably be required by the Purchaser
(and to be notified to the Vendor, at least five Business Days prior
to the Completion Date) to be produced at Completion to complete the
sale and purchase of the Business Assets.
5.5 BENEFIT OF PROPERTY LEASES, EQUIPMENT LEASES, BUSINESS CONTRACTS AND
STATUTORY LICENCES
The Vendor must use its reasonable endeavours to obtain all necessary
consents to the assignment of the Property Leases, Equipment Leases,
Business Contracts and Statutory Licences but if, despite its reasonable
endeavours, the Vendor is unable to procure any such assignment, the Vendor
must:
(a) hold the benefit of the relevant Property Lease, Equipment Lease,
Business Contract or Statutory Licence on trust for the benefit of the
Purchaser; and
(b) fully co-operate with the Purchaser in any reasonable arrangements
designed to provide for the Purchaser the benefit of the relevant
Property Lease, Equipment Lease, Business Contract or Statutory
Licence.
5.6 PURCHASER'S OBLIGATIONS
At Completion the Purchaser shall:
(a) deliver to the Vendor a share certificate for 999,999 fully paid
ordinary shares in the Purchaser; and
(b) assume responsibility for payments under the Equipment Leases and
Property Leases which are still in force, at the Completion Date,
details of which have been provided to the Purchaser prior to
execution of this agreement.
6. GENERAL OBLIGATIONS
6.1 MONEY RECEIVED BY VENDOR
All money relating to the Business belonging to the Purchaser which is
received by the Vendor after the Completion Date shall be passed or paid to
the Purchaser as soon as practicable.
6.2 MONEY RECEIVED BY PURCHASER
All money relating to the Business belonging to the Vendor which is
received by the Purchaser after the Completion Date shall be passed or paid
to the Vendor as soon as practicable.
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6.3 THIRD PARTY CONSENTS
Where any consent or agreement of a third party is required to enable the
Purchaser to perform a Business Contract, the Vendor shall be responsible
for obtaining and shall use its best endeavours (both before and, if
necessary, after the Completion Date) to obtain that consent or agreement
and the Purchaser shall give the Vendor all reasonable assistance and shall
do all reasonable things (both before and after Completion) as the Vendor
may require for that purpose.
7. CONTRACTS AND LIABILITIES
7.1 BUSINESS CONTRACTS
With effect from the Completion Date, the Vendor assigns to the Purchaser
all the rights it may have against the other party or parties to the
Business Contracts (other than the Vendor's right to collect any Business
Receivable) and (to the extent permitted by law) the Authorisations and the
Purchaser accepts responsibility for the performance of the Business
Contracts as and from Completion. The Purchaser shall after the Completion
Date carry out and complete for its own account all of the Business
Contracts to the extent that they have not been performed prior to the
Completion Date. The Vendor covenants to indemnify the Purchaser against
any Loss arising under any of the Business Contracts as a result of any act
or omission of the Vendor before Completion. The Purchaser covenants to
indemnify the Vendor against any Loss arising under any of the Business
Contracts as a result of any act or omission of the Purchaser after
Completion.
7.2 WHERE NO CONSENT
In respect of any Business Contract where the consent of the relevant other
contracting party to the substitution in place of the Vendor of the
Purchaser as a party to the contract with effect from the Completion Date
is not obtained prior to the Completion Date, the Vendor shall continue to
use its best endeavours to have those contracts assigned to the Purchaser,
and in any event, will hold the relevant contracts on trust for the
Purchaser and the Purchaser shall perform those contracts and all money
paid by the relevant other contracting party in respect of those contracts
shall be payable to and be retained by the Purchaser. The Purchaser will
indemnify the Vendor against any Loss arising under the Business Contracts
the subject of this CLAUSE 7.2 as a result of any act or omission of the
Purchaser after the Completion Date (other than any Loss arising due to any
breach by the Vendor of those Business Contracts, including any breach
which may occur as a result of the Vendor having the Purchaser perform the
Vendor's obligations on its behalf).
10
7.3 BUSINESS LIABILITIES
The Purchaser shall with effect from the Completion Date assume
responsibility for the Business Liabilities remaining after the Completion
Date and shall indemnify the Vendor against all such liabilities after the
Completion Date but all other liabilities (actual or contingent, liquidated
or unliquidated) arising, accruing or assessed in connection with the
Business in respect of any period prior to the Completion Date shall be and
remain the responsibility of the Vendor which covenants to indemnify the
Purchaser and keep the Purchaser indemnified against all such other
liabilities.
8. RISK
Upon Completion being effected in accordance with CLAUSE 5, the Business
shall be at the sole risk of the Purchaser.
9. EMPLOYEES
9.1 NEW EMPLOYMENT
It is the intention of the parties that the employment of all the Employees
with the Vendor shall be terminated with effect from Completion and
Employee Entitlements paid out by the Vendor. The Purchaser shall, before
Completion, offer all the Employees employment with the Purchaser from
Completion on terms and conditions no less favourable than those applying
to the Employees prior to Completion and on a basis which preserves their
accrued rights other than Employee Entitlements and continuity of
employment and in all respects treats service before Completion as part of
their service with the Purchaser.
9.2 LIABILITY
Any Loss suffered or incurred by either party which results from or is
caused by the termination of the Employees' employment with the Vendor as a
result of the transactions contemplated in this agreement, shall be borne
by the Vendor which covenants with the Purchaser to indemnify and keep the
Purchaser indemnified against all such Losses including any liabilities
relating to redundancy or procedural defects in the termination process.
9.3 COOPERATION
The parties shall use all reasonable endeavours to give effect to the
intention expressed in CLAUSE 9.1 and to minimise any Loss referred to in
CLAUSE 9.2.
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9.4 NOTIFICATION TO PURCHASER OF EMPLOYEES TRANSFERRING
As soon as possible following execution of this agreement, the Vendor shall
advise the Purchaser, in writing, of the names, positions and current terms
of employment of those Employees who have indicated that they will accept
an offer of employment from the Purchaser.
9.5 EMPLOYMENT OFFER
Not less than one week prior to the Completion Date, the Purchaser's offers
of employment to the Employees shall be made in writing and shall comprise
terms that are no less favourable than those applying to Employees prior to
Completion. The parties shall cooperate to ensure that those offers are
delivered to the Employees on or before the date being one week prior to
the intended Completion Date (or on or before such other date as may be
agreed by the parties). The Vendor will co-operate with the Purchaser in
the making of the offers of employment referred to in this clause and shall
use its best endeavours to persuade each of the Employees to accept the
Purchaser's offer of employment.
10. GOODS AND SERVICES TAX
The parties acknowledge that the Business is intended to be sold as a going
concern and should therefore be zero-rated in terms of section 11 of the
Goods and Services Tax ▇▇▇ ▇▇▇▇ ('ACT') and:
(a) the Purchaser warrants that, on the Completion Date, it will be a
'Registered Person' for the purposes of the Act; and
(b) the Vendor warrants that it is a 'Registered Person' for the purposes
of the Act.
11. BOOKS AND RECORDS
The Vendor shall on Completion deliver to the Purchaser all the Books and
Records relating to the Business.
12. VENDOR'S WARRANTIES
The Vendor warrants to the Purchaser in relation to the Business and the
Business Assets in the terms set out in SCHEDULE 2 as at the Completion
Date.
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13. PURCHASER'S WARRANTIES
The Purchaser warrants and represents to the Vendor that:
(a) the Purchaser is a company duly incorporated and organised, validly
existing and in good standing under the laws of New Zealand; and
(b) the Purchaser has the legal right and power to enter into this
agreement and to buy the Business Assets from the Vendor on and
subject to the terms of this agreement.
14. MISCELLANEOUS
14.1 ENTIRE AGREEMENT
This agreement contains all terms of the arrangement between the parties,
and supersedes and extinguishes all prior agreements, discussions and
arrangements between the parties, with respect to the matters covered by
this agreement.
14.2 COSTS
The Purchaser shall bear the legal and other costs in the preparation and
implementation of this agreement.
14.3 NOTICES
Any notice or other written communication requiring to be given to either
of the parties to this agreement in relation to the provisions of this
agreement shall be in writing signed by the party giving the notice or by
any officer of that party and shall be given as follows:
TO THE VENDOR:
Attention: Mr ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: 9936 2425
TO THE PURCHASER:
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: 9936 2425
or in respect of a party to such other address as that party may by at
least five Business Days' notice advise the other part as its address for
service.
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Any notices shall be determined to be duly given or made:
(a) if delivered by hand, upon delivery;
(b) if sent by facsimile, upon transmission being confirmed by the
facsimile machine transmitting the notice or communication;
(c) if sent by airmail post to an address in another country, on the
seventh Business Day after being put in the post, addressed to the
intended recipient; or
(d) if sent by ordinary post to another address in the same country, on
the second Business Day after being put in the post, addressed to the
intended recipient.
14.4 GOVERNING LAW
The governing law of this agreement and of the relations of the parties
arising from it shall be New Zealand law.
The parties to this agreement hereby accept the jurisdiction of the High
Court at Auckland, New Zealand, and any proceedings issued in respect of
any claim, dispute or other matter whatever arising out of this agreement
shall be issued out of the High Court at Auckland.
14.5 COUNTERPARTS
This agreement may be signed in any number of counterparts, all of which
taken together shall constitute one and the same instrument. Any party may
enter into this agreement by signing any counterpart.
14.6 NON-WAIVER
Failure or omission by a party at any time to enforce or require strict or
timely compliance with any provisions of this agreement shall not affect or
impair that provision in any way or the rights of that party to avail
itself of the remedies it may have in respect of any breach of that
provision.
14.7 FURTHER ASSURANCE
Each party undertakes to do all acts and things and execute and sign all
deeds and documents which may be required to be executed or signed or both
to carry out or give effect of the provisions of this agreement.
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14.8 NON-MERGER
The warranties, undertakings, agreements, covenants and indemnities given
under or pursuant to this agreement shall not merge on Completion of the
sale and purchase of the Business Assets or otherwise, but shall remain
enforceable to the fullest extent despite any rule of law to the contrary.
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SCHEDULE 1
LEASED PROPERTIES
PROPERTY: ▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
LEASE DATED: 10 February 1995
LESSOR: GA & ▇▇ ▇▇▇ and AD & ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇
RENT: $1,312.50 (incl. GST)
TERM: 2 years plus two further options to renew each of two years.
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SCHEDULE 2
WARRANTIES
1. INCORPORATION, QUALIFICATION AND STANDING
1.1 The Vendor is duly incorporated, validly existing and in good standing
under the laws of New Zealand and the Vendor has full corporate power to
own, lease and operate the Business Assets and to conduct the Business in
all jurisdictions where the Business is conducted and to enter into and
perform this agreement.
1.2 The execution, delivery and performance of this agreement by the Vendor has
been duly and validly authorized by all necessary corporate action on its
part and this agreement and each other agreement, document and instrument
delivered or to be delivered by the Vendor in connection with or pursuant
to this agreement will constitute legally valid and binding obligations of
the Vendor, enforceable in accordance with their terms.
1.3 The sale of the Business Assets and the Business pursuant to this agreement
is not in violation of any trust, agreement, judgment or order, does not
result in a breach of any obligation (including but not limited to any
statutory, contractual or fiduciary obligation) or constitute a default
under or result in the imposition of any encumbrance under any agreement or
undertaking, by which the Vendor is bound.
2. THE BUSINESS ASSETS
2.1 Except for the assets covered by the Equipment Leases, the Vendor is the
absolute legal and beneficial owner of and has good, marketable and
insurable title to all the Business Assets and at Completion full title in
all the Business Assets will vest in the Purchaser free from all liens,
mortgages, charges, security interests, restrictions, conditions, claims,
options, imperfections of title or other encumbrances whatsoever (whether
arising by way of statute or otherwise).
3. GOODWILL
3.1 The Vendor has not done or omitted to do any act which would adversely
affect the Business Goodwill.
4. CONDUCT OF BUSINESS UP TO COMPLETION
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4.1 The Vendor will between the date of this agreement and Completion:
(i) ensure the Business is prudently carried on in the ordinary and
normal course as a going concern with all due skill and care in a
businesslike manner and, without limitation, that all sums payable
under the Business Contracts are paid on the due date;
(ii) incur for the Business no liabilities (prospective, contingent or
actual) or other obligations which are of an unusual nature or amount
to or constitute a material commitment other than those incurred in
the normal course of business;
(iii) make no alteration to the terms of employment of the Employees
(including the basis of the remuneration payable to them); and
(iv) supply customers of the Business with the usual products and services
of the Business.
EXECUTED as an agreement.
SIGNED by FAI HOME SECURITY )
HOLDINGS NEW ZEALAND LIMITED )
in the presence of )
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Signature of witness FAI HOME SECURITY HOLDINGS NEW
ZEALAND LIMITED
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Name of witness (print)
SIGNED by FAI HOME SECURITY )
(ENZED) LIMITED in the presence of )
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Signature of witness FAI HOME SECURITY (ENZED) LIMITED
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Name of witness (print)
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