Exhibit 2.1
SCHEDULE 1
FURTHER TERMS OF SALE
20.0 Purchase Price Allocation
20.1 The Purchase Price of $2,450,000 plus GST, if any, is allocated as follows:
(a) Tangible Assets: $172,552;
(b) estimated Stock in Trade: $1,000,000; and
(c) Goodwill and other Intangible Assets: $1,277,448.
21.0 Excluded Debtors, Creditors and Working Capital
21.1 The sale does not include the Vendor’s cash or bank balances, trade debtors, accounts receivable, pre-paid taxes, tax refunds due, intercompany loans or other amounts owing to the Vendor in respect of trading undertaken prior to the Possession Time.
21.2 All trade creditors, accounts payable and other liabilities incurred by the Vendor in relation to the Business prior to the Possession Time shall remain the responsibility of the Vendor and shall not be assumed by the Purchaser, except to the extent expressly provided otherwise in this Agreement.
21.3 If the Purchaser receives any amount after Settlement relating to a receivable of the Vendor arising prior to the Possession Time, the Purchaser shall promptly account for and pay that amount to the Vendor.
21.4 If the Vendor receives any amount after Settlement relating to a receivable or sale of the Business arising from the Possession Time, the Vendor shall promptly account for and pay that amount to the Purchaser.
22.0 Supplier Payables
22.1 The Vendor shall pay and discharge in full all trade creditors and supplier payables relating to goods or services supplied to the Business prior to the Possession Time by their respective due dates and, in any event, no later than 20 Working Days after Settlement.
22.2 The Vendor shall use its best commercial efforts to ensure that no supplier account of the Business is placed on hold, suspended, restricted or otherwise adversely affected as a result of any failure by the Vendor to pay any pre-Settlement supplier payable.
22.3 Notwithstanding clause 22.1, if any invoice relating to goods or services supplied prior to the Possession Time is received by the Vendor after Settlement and was not reasonably capable of being paid within the period specified in clause 22.1, the Vendor shall pay that invoice by its due date or within 5 Working Days after receipt, whichever is later, and shall ensure that any delay in payment does not adversely affect the Purchaser’s ongoing relationship or trading arrangements with the relevant supplier.
22.4 Upon reasonable request by the Purchaser, the Vendor shall provide evidence that any material supplier payable retained by the Vendor has been paid.
22.5 The Vendor shall supply the Purchaser during the due diligence period with a schedule of all forward inventory and raw material orders expected to arrive at or after Settlement, including goods in transit or held at ports, together with particulars of estimated delivery dates, costs including freight and import charges, payment terms, prepayments and further amounts payable, in sufficient time to enable the Purchaser to assess its working capital requirements. Following that disclosure and until Settlement, the Vendor shall consult with the Purchaser before placing further such orders in the ordinary course of the Business and promptly notify the Purchaser of those orders and any material changes to existing orders.
22.6 Upon Settlement, the Purchaser undertakes to accept delivery of, honour and pay for all orders disclosed or placed in accordance with clause 22.5, without requiring their cancellation or amendment, but without prejudice to the Purchaser’s rights concerning defective or non-conforming goods.
22.7 Goods remaining undelivered to the Business at Settlement shall be excluded from the stock valuation under clause 26 and accounted for separately without duplication. The Vendor shall fund amounts falling due on each order pending its delivery to the Business. The Purchaser shall reimburse the Vendor for those payments and any verified deposits or prepayments within ten (10) Working Days after delivery of the relevant goods and shall pay any remaining amounts directly to the supplier when due under the applicable trade terms. Delivery is anticipated within approximately 90 days after Settlement, but that estimate shall not constitute a payment deadline where delivery is delayed. No reimbursement shall be payable at Settlement. These arrangements prevail over any inconsistent provision of clauses 21, 22.1 to 22.3 and 26.
23.0 Obtaining Finance
23.1 This Agreement is conditional upon the Purchaser arranging finance sufficient to enable it to complete the purchase of the Business, on terms satisfactory to the Purchaser, within 20 Working Days after the date of this Agreement.
23.2 This condition is inserted for the sole benefit of the Purchaser.
24.0 Due Diligence
24.1 This Agreement is conditional upon the Purchaser being satisfied with the results of its due diligence investigation of the Business within 20 Working Days after the date of this Agreement.
24.2 The due diligence investigation may include, without limitation, the financial, taxation, commercial, operational, legal and employment affairs of the Business, the Assets, Stock in Trade, contracts, customers, suppliers, licences, intellectual property, Premises and Lease. During the due diligence period, the Purchaser may consult and liaise with key and senior staff regarding the proposed sale and their continued employment, on reasonable notice to the Vendor and subject to reasonable confidentiality arrangements. The Vendor shall also make available relevant information concerning those staff members’ performance and remuneration, subject to any applicable privacy requirements.
24.3 If the Purchaser is dissatisfied with any aspect of its due diligence investigation, the Purchaser may, at its absolute discretion, by notice in writing terminate this Agreement, in which case any deposit paid shall immediately be refunded in full.
24.4 This condition is inserted for the sole benefit of the Purchaser and the Purchaser shall not be required to provide reasons for its dissatisfaction with any aspect of the due diligence investigation.
25.0 Access for Due Diligence
25.1 The Vendor shall, prior to the date for satisfaction of the Due Diligence Condition and upon receiving reasonable notice, grant the Purchaser, together with its accountants, lawyers, consultants and other professional advisors reasonable access during normal business hours to:
| (a) | the Premises; |
| (b) | the Assets and Stock in Trade; |
| (c) | the Business Records and Financial Records; and |
| (d) | such other information relating to the Business as may reasonably be required for the Purchaser’s due diligence investigation, provided such disclosure does not breach any confidentiality obligations of the Vendor. |
25.2 Any access to the Premises shall be undertaken in a manner which causes as little disruption as reasonably possible to the Vendor and the normal operation of the Business.
25.3 The Vendor shall provide such information held by the Vendor relating to the Business as is reasonably relevant to the Purchaser’s due diligence investigation.
25.4 The Purchaser acknowledges that any Confidential information disclosed by the Vendor during the Purchaser’s due diligence inquiries whether in digital or physical form must be used solely for assessing the proposed acquisition of the Vendor’s business. The Purchaser undertakes not to retain, store, or reproduce any such Confidential information (including digital copies) once the due diligence period is completed, except where the Vendor has expressly authorised retention in writing. All Confidential Information must be returned to the Vendor at the conclusion of the due diligence period.
26.0 Stock in Trade
26.1 Stock in Trade comprises raw materials, consumables and saleable finished stock, together with Work in Progress separately assessed under clause 27. Its combined estimated value is $1,000,000. The actual combined value shall be determined as at Settlement in accordance with clause 5 of the General Terms, subject to this clause and clause 27.
26.2 In determining that value, appropriate allowance shall be made for obsolete, damaged, expired, superseded, slow-moving or otherwise unsaleable stock. Work in Progress shall be counted once only.
26.3 The actual combined value shall be the final amount payable for Stock in Trade and Work in Progress, subject to the payment arrangements below. There shall be no minimum stock payment. Any variance from the estimate shall relate solely to Stock in Trade and Work in Progress and shall not affect the agreed consideration for Tangible or Intangible Assets.
26.4 The Purchaser shall pay the actual combined value at Settlement up to a maximum of $1,100,000. Any excess shall remain payable but shall be deferred under clause 26.5.
26.5 The deferred amount shall be allocated to identified Work in Progress orders in the settlement statement. The Purchaser shall complete those orders and collect the related accounts in the ordinary course of business and pay the deferred amount attributable to each order within five Working Days after receiving the corresponding customer payment, proportionately for any part payment. Any unpaid balance shall be payable within 60 days after Settlement, whether or not the customer has paid. No interest shall accrue before the applicable payment date. The parties shall confirm during due diligence the orders available to support this arrangement and agree the treatment of any excess not attributable to Work in Progress.
26.6 Alternatively, the parties may agree in writing to defer Settlement for up to 10 Working Days to allow the Vendor to complete and deliver identified orders and reduce the stock and Work in Progress transferring to the Purchaser.
27.0 Work in Progress
27.1 Work in Progress comprises partially completed customer orders at Settlement which the Purchaser can complete and invoice in the ordinary course of the Business. The parties shall identify those orders and record their completion status, related customer receipts and amounts remaining payable in the settlement statement.
27.2 Work in Progress shall be valued at direct costs actually incurred and properly attributable to it up to Settlement, including direct materials and direct labour, but excluding profit, mark-up and general overheads. That value shall not exceed the amount recoverable from the customer less the remaining costs of completion and delivery.
27.3 The Purchaser shall receive the benefit of the transferred orders and the related unpaid customer accounts, notwithstanding clause 21.1. Any customer deposits or prepayments retained by the Vendor for those orders shall be credited to the Purchaser at Settlement.
27.4 Completed customer orders shall be excluded from Stock in Trade only where identified and agreed as remaining for the Vendor’s account. The Vendor shall retain the related proceeds and bear all associated costs and liabilities. The Purchaser shall provide reasonable storage and dispatch assistance, without material disruption to the Business, for up to 10 Working Days after Settlement unless otherwise agreed.
28.0 Landlord’s Consent
28.1 Where the Lease is to be assigned to the Purchaser, this Agreement is conditional upon the Landlord providing its written consent to the assignment of the Lease to the Purchaser in accordance with clause 8.4 of the General Terms of Sale.
28.2 The date for satisfaction of the Landlord’s consent condition shall be 10 Working Days after the later of the date on which the Due Diligence Condition under clause 24.0 and the Finance Condition under clause 23.0 are satisfied or waived.
28.3 The Vendor shall seek the Landlord’s consent as soon as reasonably practicable and the Purchaser shall promptly provide all information and assistance reasonably required for that purpose.
29.0 Asset Maintenance and Future Capital Expenditure
29.1 Within 5 Working Days after the date of this Agreement, the Vendor shall provide to the Purchaser all material maintenance records reasonably available in respect of the Tangible Assets, including details of servicing, repairs and major maintenance undertaken during the preceding three years.
29.2 The Vendor shall also provide a written report identifying, to the best of the Vendor’s knowledge:
(a) any material defects, faults or maintenance issues affecting the Tangible Assets;
(b) any material repairs, maintenance or replacement expenditure currently required or reasonably anticipated within the next 24 months in order to maintain the Business at its current operating capacity; and
(c) where reasonably available, the estimated timing and cost of such repairs, maintenance or replacement expenditure.
29.3 The Vendor shall disclose any planned or committed capital expenditure relating to the Tangible Assets which has not been completed as at the date of this Agreement.
29.4 The Vendor shall permit the Purchaser and its appropriately qualified advisors, upon reasonable notice and during normal business hours, to inspect the Tangible Assets for the purposes of assessing their condition, maintenance requirements and anticipated capital expenditure, provided that such inspection causes as little disruption as reasonably possible to the operation of the Business.
30.0 Deposit
30.1 The deposit payable under this Agreement shall be 10% of the Purchase Price, being $245,000.
30.2 The deposit shall be paid to Public Trust and held by Public Trust as stakeholder pending this Agreement becoming unconditional or otherwise dealt with in accordance with this Agreement.
30.3 The deposit shall be paid to the following account:
Bank: ASB Bank
Account Name: Public Trust o/a NZ Real Estate Trust
Account number: 12-3244-0026219-02
31.0 Business Continuity and Transition
31.1 Until Settlement, the Vendor shall carry on the Business in the ordinary course and use reasonable endeavours to preserve its key employees, operations and material customer and supplier relationships. The Vendor shall promptly disclose any known intention of a key employee to leave or withdraw from an agreed retention arrangement, or of a material customer or supplier to cease or materially reduce or adversely change its dealings with the Business.
31.2 If a change occurring after this Agreement becomes unconditional and before Settlement materially impairs the Purchaser’s ability to continue the Business substantially as assessed during due diligence, the parties shall consult in good faith and use reasonable endeavours to agree a practical resolution. The Purchaser may, by written notice, defer Settlement for 10 Working Days for that purpose. If the material impairment remains unresolved following that period and there is no reasonable prospect of resolution, the Purchaser may cancel this Agreement by written notice. Pending resolution or that election, the Purchaser shall not be required to settle. This clause prevails over general clause 6.6 and any inconsistent settlement obligation, and no default interest shall arise solely from a deferral permitted under this clause.
31.3 On cancellation under clause 31.2, the deposit and all other monies paid by the Purchaser shall be immediately refunded in full. Upon that refund, each party releases the other from all claims arising out of or in connection with this Agreement, including accrued claims, except to enforce this clause.
31.4 During due diligence, the parties shall agree a practical handover plan identifying the persons providing assistance, their availability, operations and trading relationships to be transferred. The Vendor shall provide or procure reasonable assistance under that plan for 45 Working Days after Settlement, including such consultation and assistance with any material staff or customer transition difficulties.
32.0 Discharge and Release of Security Interest on PPSR
32.1 If, on the Settlement Date, the Vendor is unable to provide a discharge and release of a security interest registered on the Personal Property Securities Register (“PPSR”) in respect of the secured property, the following provisions shall apply:
| (a) | the Vendor shall, on or before the Settlement Date, procure from the relevant security holder a deed poll or equivalent undertaking, in a form reasonably satisfactory to the Purchaser, confirming that the security interest will be unconditionally and irrevocably released within 20 working days from the settlement date. |
| (b) | Where a discharge and release remains outstanding at Settlement, the Purchaser shall retain from the purchase price 100% of the amount confirmed in writing by the relevant security holder as required for release, including interest and charges through the period of 20 working days after the Settlement Date. The Vendor shall provide that confirmation on or before Settlement. The Purchaser’s solicitor shall hold the retention as stakeholder, with authority to pay the security holder the amount required for release against its undertaking under paragraph (b). Any balance shall be paid to the Vendor upon evidence of discharge and release. The retention shall continue until discharge and release are completed, notwithstanding expiry of that period, and the Vendor shall meet any shortfall. |
| (c) | The Purchaser shall otherwise, from the Settlement Date, assume all obligations, liabilities, and responsibilities associated with the supplier in respect of the secured property, other than those which remain solely the responsibility of the Vendor as provided for under this clause. |
32.2 The Vendor agrees to indemnify the Purchaser against any costs, losses, damages, or liabilities arising directly from the failure to discharge and release the security interest or procure the deed poll within the timeframes specified in this clause.
32.3 For the avoidance of doubt, this obligation shall survive the Settlement Date and will remain in force until all security interests in respect of the secured property are fully discharged and released.
33.0 Business and Company Name
33.1 The parties acknowledge and agree that:
(a) the goodwill and right to use the trading name “Printstock Products” in connection with the Business shall transfer to the Purchaser at Settlement as part of the intangible property of the Vendor;
(b) the registered company name, “Printstock Products Limited,” will belong to the Vendor for a period of 24 months from Settlement to enable the Vendor to complete an orderly wind-down of the company (“Wind-down period”). The Vendor’s continued use of the name Printstock Products Limited during the Wind-down Period will not constitute a breach of any restraint, intellectual property, goodwill, or trading name provisions contained in this Agreement, provided however that the Vendor shall not use the company to trade in breach of any restraint of trade provisions within the agreement for sale and purchase.
(c) for completeness, the Vendor will continue using the registered company name during the Wind-down Period for the collection of accounts receivable, payment of creditors and liabilities, operation of its existing bank accounts, taxation and any other activities reasonably necessary to complete the affairs of the Vendor as part of the wind-down process.
(d) on Settlement, the Purchaser shall operate through its own legal entity and maintain its own bank, customer, supplier, and other accounts separate to the Vendor. The Purchaser shall also be responsible for ensuring that its legal entity and account details are clearly distinguishable from those of the Vendor;
(e) nothing in this Agreement permits the Purchaser to represent that it is the existing legal entity, Printstock Products Limited;
(f) on the expiration of the Wind-Down Period, the Vendor will:
(i) notify the Purchaser that the company name is available to reserve on the Companies Office register; and
(ii) change the Company’s registered company name to a name that does not incorporate or refer to “Printstock Products”;
34.0 Lowest Price
34.1 The Parties agree that the Purchase Price stated in this Agreement represents the lowest price that the Parties would have agreed upon for the sale and purchase of the Business and the Assets as at the date of this Agreement, in accordance with the provisions of the Income Tax Act 2007. On this basis, no income, gain, or expenditure, whether actual or deemed, shall be treated as arising for tax purposes under the accrual treatment of income and expenditure provided by the Income Tax Act 2007. If the Commissioner of Inland Revenue challenges the Purchase Price on the grounds that it does not comply with these rules, the Parties shall amend or adjust the Purchase Price to ensure compliance, provided that the net financial outcome to each Party remains substantially the same.
35.0 Limitation of Liability and Indemnity
35.1 Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of the Vendor to Purchaser for any warranty, claims, liabilities, costs (including legal costs), expenses, interest, fines, or damages arising under or in connection with this Agreement, whether arising in contract, tort (including negligence), or otherwise, shall not exceed the total purchase price of $2,450,000.00. This limitation does not apply to liabilities arising from fraud, wilful misconduct, or breaches of confidentiality/intellectual property.