Business Sale Agreement between ACN 003 908 325 Pty Limited (Receivers and Managers Appointed) (In Liquidation) and QQQ Systems Pty Limited

Contract Categories: Business Finance › Purchase Agreements
Summary

This agreement is between ACN 003 908 325 Pty Limited (in liquidation, with receivers and managers appointed) as the Seller, and QQQ Systems Pty Limited as the Buyer. The Seller agrees to sell, and the Buyer agrees to purchase, the Seller's business and associated assets, including contracts, intellectual property, and equipment. The agreement outlines the purchase price, completion process, transfer of assets, and obligations of both parties. It also covers confidentiality, warranties, and post-completion matters. The transaction is governed by the laws of New South Wales, Australia.

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EX-2.3 4 svi_10kex2-3.txt EXHIBIT 2.3 Business Sale Agreement Contents DETAILS 1 GENERAL TERMS 3 - -------------------------------------------------------------------------------- 1 ACQUISITION OF BUSINESS AND ASSETS 3 2 PURCHASE PRICE 3 2.1 Purchase Price 3 2.2 Apportionment of Purchase Price 3 - -------------------------------------------------------------------------------- 3 COMPLETION 3 3.1 Time and place of Completion 3 3.2 Seller's obligations 3 3.3 Buyer's obligations 4 3.4 Simultaneous actions at Completion 4 3.5 Post-Completion notices 5 - -------------------------------------------------------------------------------- 4 GST 5 4.1 Exclusive amount of GST 5 4.2 GST 5 4.3 Additional amount 5 4.4 Tax invoice 5 4.5 Adjustment and refund 5 4.6 Expenses and outgoings 6 - -------------------------------------------------------------------------------- 5 PAYMENT OF THE PURCHASE PRICE 6 5.1 Payment on Completion 6 5.2 Purchase Price Adjustments 6 5.3 Method of payment 6 5.4 Adjustment for Plant and Equipment 6 - -------------------------------------------------------------------------------- 6 APPORTIONMENT AND OBLIGATIONS AFTER COMPLETION 6 6.1 Apportionment of outgoings 6 6.2 Entitlement to income 7 6.3 Survival 7 6.4 Prepaid goods and services and arrears payments 7 6.5 Referral to Independent Valuer 7 6.6 Payment 8 6.7 Decision of Independent Valuer 8 6.8 Cost of Independent Valuer 8 6.9 Maintenance of services 8 - -------------------------------------------------------------------------------- 7 RISK 8 8 CONTRACTS 8 8.1 Novation of Contracts 8 8.2 Consent 8 8.3 Costs of novation of Contracts 9 8.4 Performance of Contracts 9 8.5 Obligations pending transfer 9 8.6 Contracts which cannot be novated 9 8.7 Indemnity 9 8.8 Survival 10 8.9 Acknowledgement 10 - -------------------------------------------------------------------------------- 9 INTELLECTUAL PROPERTY LICENCES 10 9.1 Novation of Intellectual Property Licences 10 9.2 Consent 10 9.3 Costs of novation of Intellectual Property Licences 10 9.4 Performance of Intellectual Property Licences 10 9.5 Obligations pending transfer 11 9.6 Use of material licensed under Intellectual Property Licences 11 9.7 Intellectual Property Licences which cannot be novated 11 9.8 Indemnity 11 9.9 Domain Name and Business Names 11 - -------------------------------------------------------------------------------- 10 DEBTORS 12 10.1 Remittance of Book Debts 12 10.2 No obligation 12 10.3 No proceedings 12 10.4 Continue to collect 12 10.5 Collection information 12 - -------------------------------------------------------------------------------- 11 CUSTOMERS 12 11.1 Announcement of sale 12 11.2 Contract in name of Seller 12 - -------------------------------------------------------------------------------- 12 BUSINESS LIABILITIES 13 12.1 No assumption of Business Liabilities 13 - -------------------------------------------------------------------------------- 13 WARRANTIES AND REPRESENTATIONS 13 13.1 No warranties by Seller 13 13.2 Receiver's warranties 13 13.3 Buyer's acknowledgment 13 13.4 Seller's acknowledgment 14 - -------------------------------------------------------------------------------- 14 BUYER'S WARRANTIES 14 14.1 Buyer's warranties 14 14.2 Indemnity 14 - -------------------------------------------------------------------------------- 15 DEFAULT 15 15.1 Failure by a party to Complete 15 15.2 Specific performance or termination 15 15.3 Termination of agreement 15 15.4 Effect of termination 15 - -------------------------------------------------------------------------------- 16 CONFIDENTIALITY 15 16.1 Disclosure of Confidential Information 15 16.2 Disclosure by a party of Confidential Information 16 16.3 Excluded Information 16 16.4 Survival of termination 16 - -------------------------------------------------------------------------------- 17 ANNOUNCEMENTS 16 17.1 Public announcements 16 17.2 Public announcements required by law 16 - -------------------------------------------------------------------------------- 18 ACCESS TO RECORDS AND ASSETS AFTER COMPLETION 16 18.1 Maintenance of Records 16 18.2 Assistance 17 18.3 Access to Assets 17 - -------------------------------------------------------------------------------- 19 COSTS AND STAMP DUTY 17 19.1 Legal costs 17 19.2 Stamp duty 17 - -------------------------------------------------------------------------------- 20 NOTICES 17 20.1 Form 17 20.2 Delivery 17 20.3 When effective 18 20.4 Receipt - post 18 20.5 Receipt - fax 18 - -------------------------------------------------------------------------------- 21 ASSIGNMENT 18 22 MISCELLANEOUS 18 22.1 Discretion in exercising of rights 18 22.2 Partial exercising of rights 18 22.3 No liability for Loss 18 22.4 Variation and waiver 19 22.5 Approvals and consent 19 22.6 Remedies cumulative 19 22.7 No merger 19 22.8 Indemnities 19 22.9 Further steps 19 22.10 Entire agreement 19 22.11 Severability 20 - -------------------------------------------------------------------------------- 23 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 20 23.1 Governing law 20 23.2 Serving documents 20 - -------------------------------------------------------------------------------- 24 COUNTERPARTS 20 25 INTERPRETATION 20 25.1 Definitions 20 25.2 General interpretation 26 25.3 Headings 28 SCHEDULE 1 - NOVATION DEED 29 SCHEDULE 2 - PLANT AND EQUIPMENT 39 SCHEDULE 3 - TRADE MARKS 74 SCHEDULE 4 - CONTRACTS 75 SCHEDULE 5 - DEED OF ASSIGNMENT 79 SCHEDULE 6 - FORM OF NOTICE 80 SIGNING PAGE 81 BUSINESS SALE AGREEMENT - -------------------------------------------------------------------------------- Details INTERPRETATION - definitions are at the end of the General terms - -------------------------------------------------------------------------------- PARTIES SELLER, BUYER AND RECEIVER - -------------------------------------------------------------------------------- SELLER Name ACN 003 908 325 PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ABN 75 003 908 325 Incorporated in Commonwealth of Australia Address c/- Sims Lockwood Level 24 Australia Square 264 George Street Sydney NSW 2000 Telephone 9241 3422 Fax 9241 3922 Attention Anthony Sims/Neil Singleton - -------------------------------------------------------------------------------- BUYER Name QQQ SYSTEMS PTY LIMITED ACN 099 004 145 Incorporated in Commonwealth of Australia Address Level 7, 55 Grafton Street, Woollahra, New South Wales, 2025 Telephone 02 9389 3555 Fax 02 9387 7110 Attention Company Secretary - -------------------------------------------------------------------------------- RECEIVER Name ANTHONY MILTON SIMS AND NEIL GEOFFREY SINGLETON Sims Lockwood Address Level 24 Australia Square 264 George Street Sydney NSW 2000 Telephone 9241 3422 Fax 9241 3922 Attention Anthony Sims/Neil Singleton - -------------------------------------------------------------------------------- 1 - -------------------------------------------------------------------------------- RECITALS A The Seller carries on the business of providing retail computer hardware and software solutions in Australia. B The Seller has agreed to sell and the Buyer has agreed to purchase the Business and associated assets with effect from the Completion Date on the following terms. - -------------------------------------------------------------------------------- BUSINESS DAY PLACE(S) Sydney - -------------------------------------------------------------------------------- GOVERNING LAW New South Wales - -------------------------------------------------------------------------------- DATE OF AGREEMENT See Signing page - -------------------------------------------------------------------------------- 2 BUSINESS SALE AGREEMENT - -------------------------------------------------------------------------------- General terms - -------------------------------------------------------------------------------- 1 ACQUISITION OF BUSINESS AND ASSETS The Seller agrees to sell and the Buyer agrees to purchase all of the Seller's right, title and interest (if any) in the Assets and the Business on the Completion Date but with effect from the Effective Date on the terms and conditions of this agreement. - -------------------------------------------------------------------------------- 2 PURCHASE PRICE 2.1 PURCHASE PRICE The purchase price for the Assets is A$600,000.00 subject to adjustment under clause 5.4. 2.2 APPORTIONMENT OF PURCHASE PRICE The Purchase Price is apportioned between the Assets as follows: (a) the Goodwill - A$1.00; (b) the Plant and Equipment - A$49,995.00; (c) the Intellectual Property - A$550,000.00; (d) the Intellectual Property Licences - A$1.00; (e) the Contracts - A$1.00; (f) the Records - A$1.00; and (g) all other tangible or intangible assets owned by the Seller for use in the Business - A$1.00. - -------------------------------------------------------------------------------- 3 COMPLETION 3.1 TIME AND PLACE OF COMPLETION Completion will take place at 2.30 pm on the Completion Date at the offices of Freehills, Solicitors, Level 38, MLC Centre, Martin Place, Sydney, New South Wales or any other time and place agreed between the Seller and Buyer. 3.2 SELLER'S OBLIGATIONS On the Completion Date, the Seller must: (a) (DOCUMENTS) deliver to the Buyer the Contracts and the Intellectual Property Licences, by allowing the Buyer to take possession of them at the Business Premises where they are 3 kept, except that if the Seller, the Receiver or the Liquidator is legally required to retain any of the documents, the Seller must deliver copies of those documents to the Buyer; (b) (RECORDS) deliver to the Buyer all Records by allowing the Buyer to take possession of them at the Business Premises where they are kept, except that if the Seller, the Receiver or the Liquidator is legally required to retain any of the documents, the Seller must deliver copies of those documents to the Buyer; (c) (DELIVERY OF ASSETS) deliver to the Buyer the Plant and Equipment capable of transfer by delivery by allowing the Buyer to take possession of them at the Business Premises where they are kept; (d) (RELEASE FROM CHARGE) deliver to the Buyer a release of the charge dated 21 March 1996 (ASIC registered number 536851) over the Assets held by National Australia Bank Limited; (e) (BOOK DEBTS) deliver to the Buyer an itemised schedule of Book Debts; (f) (UTILITY SERVICES) assist the Buyer by executing the necessary forms and consents to enable the utility services provided to the Business, including those telephone or facsimile and other communication services requested by the Buyer to be transferred to the Buyer with effect from the Completion Date and without interruption of those services; (g) (CONFIDENTIAL INFORMATION) identify to the Buyer in writing all persons or entities to whom the Seller or Receiver provided an information memorandum containing details relating to the Business since the appointment of the Receiver; and (h) (IP ASSIGNMENTS) deliver to the Buyer assignments of the registered trade marks specified in Part 2 of schedule 3 in the form set out in schedule 5 duly executed by the Seller and the Receiver. 3.3 BUYER'S OBLIGATIONS On Completion, the Buyer must: (a) pay the Seller in accordance with clause 5.1 ("Payment on Completion") if the Seller complies with clause 3.2 ("Seller's obligations"); (b) provide documents necessary to transfer or terminate the Domain Name and Business Names sufficient to enable the Buyer to become the registered holder of the Domain Name and the Business Names. 3.4 SIMULTANEOUS ACTIONS AT COMPLETION In respect of Completion: 4 (a) the obligations of the parties under this agreement are interdependent; and (b) all actions required to be performed are to be taken to have occurred simultaneously on the Completion Date. 3.5 POST-COMPLETION NOTICES Each party will immediately give to the other party all payments, notices, correspondence, information or enquiries in relation to the Business or the Assets which it receives after Completion and which belong to the other party. - -------------------------------------------------------------------------------- 4 GST 4.1 EXCLUSIVE AMOUNT OF GST Unless otherwise specifically stated, sums payable or consideration to be provided under or in accordance with this agreement are expressed as exclusive of any applicable amount of GST. 4.2 GST If any Supply made by a party under or in connection with this agreement is subject to GST, the Supplier may, in addition to the consideration for the Supply, recover an additional amount on account of GST from the Recipient. 4.3 ADDITIONAL AMOUNT The additional amount on account of GST referred to in clause 4.2: (a) is equal to the consideration payable by the Recipient for the relevant supply multiplied by the prevailing GST rate; (b) subject to clause 4.3(c), is payable not later than 14 days from the day the Supplier provides a Tax Invoice to the Recipient; and (c) where payable by the Buyer to the Seller, may be paid by the Buyer within 40 Business Days of the relevant date prescribed under Division 31 of the GST Law for the Buyer to give its GST Return to the Commissioner of Taxation for the tax period of the Buyer in which the Seller provides a Tax Invoice in respect of the relevant Supply. 4.4 TAX INVOICE The Supplier must provide a Tax Invoice to the relevant party in a form that complies with the GST Law. 4.5 ADJUSTMENT AND REFUND If the amount in respect of GST recovered from the Recipient by the Supplier under clause 4.2 of this agreement differs from the amount of GST payable under the GST Law by the Supplier in respect of the Supply, the amount payable by the Recipient to the Supplier will be adjusted accordingly and the amount of any excess paid by the Recipient shall be refunded promptly by the Supplier. 5 4.6 EXPENSES AND OUTGOINGS If one of the parties to this agreement is entitled to be reimbursed for an expense or outgoing incurred in connection with the agreement, then the amount of the reimbursement will be net of any input tax credits which may be claimed by the party being reimbursed in relation to that expense or outgoing. - -------------------------------------------------------------------------------- 5 PAYMENT OF THE PURCHASE PRICE 5.1 PAYMENT ON COMPLETION At Completion, the Buyer agrees to pay to the Seller the Purchase Price. 5.2 PURCHASE PRICE ADJUSTMENTS The Purchase Price payable by the Buyer will be adjusted in accordance with clause 5.4 and the apportionment to be made in accordance with clause 6 ("Apportionment"). 5.3 METHOD OF PAYMENT Each payment referred to in clause 5 ("Payment of the Purchase Price") must be made by bank cheque of clear funds to the credit of a bank account specified in writing by the Seller to the Buyer prior to Completion. 5.4 ADJUSTMENT FOR PLANT AND EQUIPMENT (a) In the event that any item of Plant and Equipment listed in schedule 2 is not delivered to the Buyer at Completion in accordance with this agreement, the Purchase Price shall be reduced by the value of such item as agreed by the Buyer and the Seller or, failing such agreement within 2 Business Days of either party notifying the others of its opinion of such value, as determined by the Independent Valuer and the provisions of clauses 6.5 to 6.8 apply. (b) If the Purchase Price is reduced in accordance with clause 5.4(a), then the Seller must reimburse the Buyer for the value of the relevant item as agreed or determined by the Independent Valuer (as the case may be). - -------------------------------------------------------------------------------- 6 APPORTIONMENT AND OBLIGATIONS AFTER COMPLETION 6.1 APPORTIONMENT OF OUTGOINGS All expenses normally apportioned on the purchase of a business similar to the Business (other than any expenses or costs incurred in connection with the employees of the Seller) will be apportioned as at the close of business on the Effective Date. The Seller and the Buyer must make the appropriate payments on the Completion Date. Either the Seller or the Buyer may refer any disagreement on apportionment to the Independent Valuer and the provisions of clauses 6.5 to 6.8 apply. 6 6.2 ENTITLEMENT TO INCOME (a) The Seller is entitled to income, profits, rights and benefits of the Business before the Effective Date, including from Closed Calls, but excluding service calls that are not Closed Calls, performed before the Effective Date. Subject to Completion, the Buyer is entitled to all the income, profits, rights and benefits of the Business from and including the Effective Date, including from Closed Calls performed after the Effective Date and from any service calls that are not Closed Calls whether performed before, on or after the Effective Date. (b) For the avoidance of doubt, the Seller must not, and the Receiver must ensure that the Seller does not, except in respect of service calls that are Closed Calls, raise any invoice prior to the Effective Date in respect of service calls performed by the Seller. (c) The Seller must not, and the Receiver must ensure that the Seller does not, prior to the Effective Date, raise any invoices for the provision of maintenance services in respect of any period on or after the Effective Date. 6.3 SURVIVAL This clause 6 survives Completion. 6.4 PREPAID GOODS AND SERVICES AND ARREARS PAYMENTS (a) If the Seller has made a prepayment in respect of goods, services or other benefits which will be received by the Buyer in respect of the Business after the Effective Date, the Buyer will pay to the Seller the amount of that prepayment to the extent that it relates to the period after the Effective Date. (b) After Completion, the Seller must promptly reimburse the Buyer for: (i) amounts paid by the Buyer with the Seller's approval in arrears for goods or services supplied in respect of the Business during the period from the Appointment Date until the Effective Date; and (ii) any other outgoings and similar amounts paid in arrears by the Buyer with the Seller's approval in respect of the Business where the benefit was received by the Seller in respect of the Business before the Effective Date. 6.5 REFERRAL TO INDEPENDENT VALUER If the Seller and the Buyer cannot agree on the apportionment of any outgoings under this clause 6 ("Apportionment"), then either the Seller or the Buyer may refer the disagreement to the Independent Valuer with the request that the Independent Valuer make a decision on the disagreement as soon as practicable after receiving the reference and any submissions from the Seller and the Buyer. The Independent Valuer will be appointed as an expert and not as an arbitrator. The procedures for determination are to be decided by the Independent Valuer in its absolute discretion. 7 6.6 PAYMENT Any payment to be made as a consequence of the Independent Valuer's decision must be paid within 2 Business Days of that decision. 6.7 DECISION OF INDEPENDENT VALUER The decision of the Independent Valuer is to be conclusive and binding on the parties in the absence of manifest error. 6.8 COST OF INDEPENDENT VALUER The Buyer and Seller must pay the Independent Valuer's costs and expenses in connection with the reference in equal proportions. 6.9 MAINTENANCE OF SERVICES For a period of 5 Business Days following the Completion Date (or such shorter period as may be notified to the Seller by the Buyer), the Receiver and the Seller must procure that the telecommunications, electricity, gas and water services provided to the Seller in respect of the Sydney Business Premises continue to be provided by the relevant service providers. The Buyer must promptly reimburse the Seller for the amounts paid by the Seller in respect of such services for such period (or such shorter period as may be notified to the Seller by the Buyer) upon the Seller producing to the Buyer reasonable evidence of its payment of such amounts. - -------------------------------------------------------------------------------- 7 RISK Title to and risk in the Business and the Assets pass to the Buyer at Completion but with effect from the Effective Date. - -------------------------------------------------------------------------------- 8 CONTRACTS 8.1 NOVATION OF CONTRACTS The Buyer agrees to use its best endeavours to ensure that the Buyer obtains the full benefit of the Contracts from the close of business on the Completion Date by the novation of the Contracts. 8.2 CONSENT The Buyer agrees to use its best endeavours to obtain the consent of the other parties to the Contracts ("CONSENTING PARTIES") to the novation of the Contracts to the Buyer. To effect the novations, the Buyer agrees to use its best endeavours to procure that a novation deed is executed by the Buyer, the Seller and the relevant party to all Contracts in the form of Schedule 1. The Seller will assist the Buyer to fulfil its obligations under this clause 8 for up to two months after the Completion Date. 8.3 COSTS OF NOVATION OF CONTRACTS Each party agrees to pay to its own costs, charges and expenses incurred in connection with the novation of the Contracts. 8 8.4 PERFORMANCE OF CONTRACTS From Completion, the Buyer: (a) will assume the liabilities of the Seller arising on and after the Effective Date under the Contracts; (b) must properly perform the obligations of the Seller arising after the Effective Date under the Contracts; and (c) must fully co-operate with the Seller in any reasonable arrangements designed to transfer to the Buyer the benefit and the burden of each Contract including assisting the Seller in the enforcement of any rights of the Seller against a party to that Contract in respect of such transfer. 8.5 OBLIGATIONS PENDING TRANSFER From Completion until each Contract is novated to the Buyer, to the extent it lawfully can: (a) the Seller must permit the Buyer to have the benefit of and exercise the rights of the Seller under the Contract to the extent that it is legally able to do so with effect from the Effective Date until the novation occurs but is not obliged to take any other action in respect of that Contract including performing any obligations under that Contract that arise on or after the Effective Date; (b) the Seller must within 5 Business Days after receipt, pay to the Buyer any amount or account to the Buyer for any other benefit it receives in respect of each Contract which accrues on or after the Effective Date; and (c) the Buyer must perform at its expense all the obligations of the Seller under the Contract arising on or after the Effective Date. 8.6 CONTRACTS WHICH CANNOT BE NOVATED If a Contract cannot be effectively novated without the consent of a third party and that party does not agree to novate the Contract within two months after the Completion Date, the Seller will not be obligated to do anything further to assist in the novation of that Contract. 8.7 INDEMNITY The Buyer indemnifies the Seller against any Liability or Loss arising under any of the Contracts as a result of any act or omission of the Buyer on or after the Effective Date or as a result of the Seller complying with its obligations under this clause 8. 8.8 SURVIVAL This clause 8 survives Completion. 9 8.9 ACKNOWLEDGEMENT The Buyer acknowledges that, provided that the Seller has fulfilled all its obligations under clauses 8 and 9, the Seller will not be liable in the event that a Contract or Intellectual Property Licence is unable to be novated. - -------------------------------------------------------------------------------- 9 INTELLECTUAL PROPERTY LICENCES 9.1 NOVATION OF INTELLECTUAL PROPERTY LICENCES The Buyer agrees to use its best endeavours to ensure that the Buyer obtains the full benefit of the Intellectual Property Licences from the Completion Date by the novation of the Intellectual Property Licences. To effect the novations, the Buyer will use its best endeavours to procure that novation deeds are executed by the Buyer, the Seller and the relevant party to all Intellectual Property Licences in the form of Schedule 1. 9.2 CONSENT (a) The Buyer will use its best endeavours to: (i) obtain the consent of the other parties to the Intellectual Property Licences to the novation of the Intellectual Property Licences to the Buyer; and (ii) transfer the Domain Name and Business Names in accordance with clause 9.9. (b) The Seller will assist the Buyer to fulfil its obligations under this clause 9 for up to two months after the Completion Date. 9.3 COSTS OF NOVATION OF INTELLECTUAL PROPERTY LICENCES Each party agrees to pay its own costs, charges and expenses incurred in connection with the novation of the Intellectual Property Licences. 9.4 PERFORMANCE OF INTELLECTUAL PROPERTY LICENCES From Completion, the Buyer: (a) will assume the liabilities of the Seller arising after the Effective Date under the Intellectual Property Licences; (b) must properly perform the obligations of the Seller arising after the Effective Date under the Intellectual Property Licences; and (c) must fully co-operate with the Seller in any reasonable arrangements designed to transfer to the Buyer the benefit and the burden of each Intellectual Property Licence including assisting the Seller in the enforcement of any rights of the Seller against a party to that Intellectual Property Licences in respect of such transfer. 10 9.5 OBLIGATIONS PENDING TRANSFER (a) From Completion until each Intellectual Property Licence is transferred to the Buyer, to the extent it lawfully can, the Seller must permit the Buyer to have the benefit of and exercise the rights of the Seller under the Intellectual Property Licence from the Effective Date until the novation or assignment occurs but is not obliged to take any other action in respect of that Intellectual Property Licence including performing any obligations under that Intellectual Property Licence that arise after the Effective Date; (b) the Seller must within 5 Business Days after receipt, pay to the Buyer any amount or account to the Buyer for any other benefit it receives in respect of each Intellectual Property Licence which accrues on or after the Effective Date; and (c) the Buyer must perform at its expense all the obligations of the Seller under the Intellectual Property Licence arising on or after the Effective Date. 9.6 USE OF MATERIAL LICENSED UNDER INTELLECTUAL PROPERTY LICENCES The Buyer acknowledges and agrees that, where the Seller or the Receiver reasonably notifies the Buyer that the Seller is not lawfully entitled to permit the Buyer to have the benefit of or exercise the rights of the Seller under any Intellectual Property Licence, the Buyer must not take the benefit of or exercise any rights of the Seller under that licence unless and until that licence has been appropriately novated or assigned. 9.7 INTELLECTUAL PROPERTY LICENCES WHICH CANNOT BE NOVATED If an Intellectual Property Licence cannot be effectively novated without the consent of a third party and that party does not agree to novate the Intellectual Property Licence within two months after the Completion Date, the Seller will not be obligated to do anything further to assist in the novation of that Intellectual Property Licence. 9.8 INDEMNITY Where the Buyer is performing the obligations or exercising the rights of the Seller under an Intellectual Property Licence, the Buyer indemnifies the Seller in respect of any Loss which the Seller pays, suffers, incurs or is liable for at any time as a direct result of any act or default of the Buyer in performing the Seller's obligations or exercising its rights on or after the Effective Date. 9.9 DOMAIN NAME AND BUSINESS NAMES For up to three months after the Completion Date, the Buyer, the Seller and the Receiver undertake to do all things necessary to effect the transfer to the Buyer of the: (a) Domain Name in accordance with the terms of registration of the Domain Name, including, if the terms of registration do not permit transfer, subject to clause 9.2, by terminating the Seller's registration and the Buyer applying for that Domain Name; and 11 (b) the Business Names in accordance with the terms of registration of the registered Business Names, including, if the terms of registration do not permit transfer, subject to clause 9.2, by terminating the Seller's registration and the Buyer applying for that Business Name. - -------------------------------------------------------------------------------- 10 DEBTORS 10.1 REMITTANCE OF BOOK DEBTS The Buyer must remit to the Seller any payment received by it in relation to the Book Debts within 5 Business Days of receipt. 10.2 NO OBLIGATION Subject to clause 10.1, the Buyer is not obliged to take any step (including making any demand, or threatening or commencing legal proceedings) against debtors to recover any Book Debt. 10.3 NO PROCEEDINGS The Seller may not commence or threaten to commence any legal proceedings against debtors to recover any Book Debts without providing prior written notice to the Buyer. 10.4 CONTINUE TO COLLECT The Seller may continue to collect the Book Debts in the normal manner before and following Completion. 10.5 COLLECTION INFORMATION For a period of two months following Completion, the Buyer must: (a) provide information for the purposes of the collection of the Book Debts promptly at the reasonable request of the Seller; and (b) allow the Seller and its Representatives full and free access to the records and office facilities of the Buyer to assist in the collection of the Book Debts. - -------------------------------------------------------------------------------- 11 CUSTOMERS 11.1 ANNOUNCEMENT OF SALE Within 3 Business Days of the Completion Date, the Buyer must, at its expense, send to each customer and client of the Business that is a party to a Contract a notice announcing the sale of the Business in the form attached in Schedule 6 to this agreement. 11.2 CONTRACT IN NAME OF SELLER The Buyer must not contract or engage or release or waive or do any other act for, on behalf of, or in the name of, the Seller without the prior written consent of the Seller which consent can be withheld at the discretion of the Seller. 12 - -------------------------------------------------------------------------------- 12 BUSINESS LIABILITIES 12.1 NO ASSUMPTION OF BUSINESS LIABILITIES The Buyer does not assume any Business Liabilities from the Seller. - -------------------------------------------------------------------------------- 13 WARRANTIES AND REPRESENTATIONS 13.1 NO WARRANTIES BY SELLER The Seller makes no warranty or representation in connection with this agreement or the sale of the Business or the Assets. 13.2 RECEIVER'S WARRANTIES The Receiver represents and warrants to the Seller that each of the following statements is accurate on the date of this agreement and will be accurate as at the Completion Date as if made on each of those dates: (a) the Receiver was appointed to the assets of the Seller on 20 February 2002 under the powers contained in the Charge and no application has been made to a court pursuant to the provisions of section 418A of the Corporations Act or otherwise seeking to invalidate the appointment of the Receiver; (b) the Receiver has the power to enter into and perform this agreement; and (c) so far as he is aware, the Receiver has not disposed of or entered into any agreement to dispose of, or caused or permitted the Seller to dispose of or to enter into any agreement to dispose of, any assets of the Business other than the Bronte P&E or under this agreement. 13.3 BUYER'S ACKNOWLEDGMENT The Buyer acknowledges that: (a) irrespective of whether or not the Due Diligence was as full or exhaustive as the Buyer would have wished, it has nevertheless independently and without the benefit of any inducement, representations or warranty from the Seller, the Receiver or their respective agents (except as set out in this agreement) determined to enter into this agreement; (b) except as set out in this agreement, the disclosures regarding the Business and the Assets are accepted by the Buyer and that neither the Seller, the Receiver nor any of their agents, directors, officers, employees or advisers have made or makes any representation or warranty as to the accuracy or completeness of those disclosures or that information; (c) except as set out in this agreement, neither the Seller or the Receiver nor any of their respective agents, directors, officers or employees (as applicable): 13 (i) accepts any duty of care in relation to the Buyer in respect of any disclosure or the provision of any information referred to in clause 13.3(c) ("Buyer's acknowledgment") and (ii) is to be liable to the Buyer if, for whatever reason, any such information is or becomes inaccurate, incomplete or misleading in any particular way; and (d) subject to any law to the contrary, all terms, conditions, warranties and statements, whether express, implied, written, oral, collateral, statutory or otherwise, are excluded and each of the Seller and the Receiver disclaims all Liability in relation to these to the maximum extent permitted by law. 13.4 SELLER'S ACKNOWLEDGMENT The Seller acknowledges that the acknowledgments and representations given by the Buyer in clause 13.3 ("Buyer's acknowledgment") do not give the Seller a cause of action against the Buyer and may only be raised by the Seller as a defence to any Claim by the Buyer. - -------------------------------------------------------------------------------- 14 BUYER'S WARRANTIES 14.1 BUYER'S WARRANTIES The Buyer represents and warrants to the Seller that each of the following statements is accurate on the date of this agreement and will be accurate as at the Completion Date as if made on each of those dates: (a) it has the power to enter into and perform this agreement; (b) this agreement and Completion do not conflict with or result in a breach of or default under any applicable law, any provision of its constitution or any material term or provision of its constitution or any material term or provision of any agreement or deed or writ, order or injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it is bound; (c) no voluntary arrangement has been proposed or reached with any creditors of the Buyer; (d) the Buyer is able to pay its debts as and when they fall due; and (e) in entering into this agreement and in proceeding to Completion, the Buyer does not rely on any statement, representation, warranty, condition, forecast or other conduct which may have been made by the Seller, the Receiver, or any person purporting to act on behalf of the Seller or the Receiver except as set out in this agreement. 14.2 INDEMNITY The Buyer indemnifies the Seller against any Liability or Loss that the Seller may incur to the extent caused by any breach of the representations and warranties in clause 14.1 ("Buyers warranties"). 14 - -------------------------------------------------------------------------------- 15 DEFAULT 15.1 FAILURE BY A PARTY TO COMPLETE If a party does not Complete, other than as a result of default by the other party, the non-defaulting party may give the defaulting party notice requiring it to complete within 7 days of receipt of the notice. 15.2 SPECIFIC PERFORMANCE OR TERMINATION If the defaulting party does not complete within the period specified in clause 15.1 ("Failure by a party to Complete") the non-defaulting party may choose either to proceed for specific performance or terminate this agreement. In either case, the non-defaulting party may seek damages for the default. 15.3 TERMINATION OF AGREEMENT If this agreement is terminated then clause 15.4 ("Effect of termination") will apply with the necessary changes. A termination of this agreement under this clause will not affect any other rights the parties have against one another at law or in equity. 15.4 EFFECT OF TERMINATION If this agreement is terminated under clause 15.2 ("Specific performance or termination") then, in addition to any other rights, powers or remedies provided by law: (a) each party is released from its obligations to further perform the agreement other than in relation to clauses 16 ("Confidentiality") and 19.1 ("Legal costs"); (b) each party retains the rights it has against any other party in respect of any past breach or any Claim that has arisen before termination; (c) the Buyer must return to the Seller all documents and other materials in any medium in its possession, power or control which contain information relating to the Business, including the Records. - -------------------------------------------------------------------------------- 16 CONFIDENTIALITY 16.1 DISCLOSURE OF CONFIDENTIAL INFORMATION No Confidential Information may be disclosed by a party to any person except: (a) to Representatives of the party or its Related Entities requiring the information for the purposes of this agreement; or (b) with the consent of the other parties; or (c) if the party is required to do so by law or a stock exchange; or (d) if the party is required to do so in connection with legal proceedings relating to this agreement; or 15 (e) the Receiver, who may disclose Confidential Information to the Liquidator upon request by the Liquidator. 16.2 DISCLOSURE BY A PARTY OF CONFIDENTIAL INFORMATION If a party discloses information under clause 16.1(a) or 16.1(b) ("Disclosure of Confidential Information") it must use all reasonable endeavours to ensure that persons receiving Confidential Information from it do not disclose the information except in the circumstances permitted in clause 16.1 ("Disclosure of Confidential Information"). 16.3 EXCLUDED INFORMATION Clauses 16.1 ("Disclosure of Confidential Information") and 16.2 ("Disclosure by a party of Confidential Information") do not apply to Excluded Information. 16.4 SURVIVAL OF TERMINATION This clause 16 ("Confidentiality") will survive termination of this agreement. - -------------------------------------------------------------------------------- 17 ANNOUNCEMENTS 17.1 PUBLIC ANNOUNCEMENTS Subject to clauses 11.1 ("Announcement of Sale") and 17.2 ("Public announcements required by law"), no party may, before or after Completion, make or send a public announcement, communication or circular concerning the transactions referred to in this agreement unless it has first obtained the other parties' written consent which consent is not to be unreasonably withheld or delayed. 17.2 PUBLIC ANNOUNCEMENTS REQUIRED BY LAW Clauses 16.1(c) ("Disclosure of Confidential Information)" and 17.1 ("Public announcements") do not apply to a public announcement, communication or circular required by law or a regulation of a stock exchange, if the party required to make or sent it has, if practicable, first consulted and taken into account the reasonable requirements of the other parties. - -------------------------------------------------------------------------------- 18 ACCESS TO RECORDS AND ASSETS AFTER COMPLETION 18.1 MAINTENANCE OF RECORDS (a) After the Completion Date the Buyer will keep original Records delivered to the Buyer on Completion for five years from the date of the creation of the relevant document. (b) After the Completion Date, the Seller and the Receiver must keep any original Records retained by any of them pursuant to clauses 3.2(a) or 3.2(b) for five years from the Completion Date and provide the Buyer with access to, and assistance to examine, any such Records. 16 18.2 ASSISTANCE The Buyer will provide access to, and assistance to examine, Records delivered to the Buyer on Completion (including copies of relevant documents) reasonably requested by the Seller including access to complete tax returns. 18.3 ACCESS TO ASSETS For a period of 5 Business Days after the Completion Date (or such shorter period as may be notified to the Seller by the Buyer), the Seller and the Receiver must use their reasonable endeavours to ensure that the Buyer is provided access to each of the Business Premises (other than the Sydney Business Premises) for the purpose of taking possession of the Assets. The Buyer must promptly reimburse the Seller for the amounts of the rental paid by the Seller for each Business Premises (other than the Sydney Business Premises) for the period from the opening of business on the Effective Date until the end of such period or shorter period (as the case may be) upon the Seller producing to the Buyer reasonable evidence of its payment of such amounts. - -------------------------------------------------------------------------------- 19 COSTS AND STAMP DUTY 19.1 LEGAL COSTS The Seller and the Buyer agree to pay their own legal and other costs and expenses, in connection with the negotiation, preparation, execution and completion of this agreement and other related documentation except for stamp duty. 19.2 STAMP DUTY The Buyer agrees to pay all stamp duty (including fines and penalties) chargeable, payable or assessed in relation to this agreement and the transfer of the Business and the Assets to the Buyer. - -------------------------------------------------------------------------------- 20 NOTICES 20.1 FORM Unless expressly stated otherwise in this agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this agreement must be in writing signed by an Authorised Officer and must be marked for the attention of the person identified in the Details or, if the recipient has notified otherwise, then marked for attention in the last way notified. 20.2 DELIVERY Notices must be: (a) left at the address set out or referred to in the Details; or 17 (b) sent by prepaid ordinary post (airmail if appropriate) to the address set out or referred to in the Details; (c) sent by fax to the fax number set out or referred to in the Details; or (d) given in any other way permitted by law; However, if the intended recipient has notified a changed postal address or changed fax number, then the communication must be to that address or number. 20.3 WHEN EFFECTIVE They take effect from the time they are received unless a later time is specified. 20.4 RECEIPT - POST If sent by post, they are taken to have been received three days after posting (or seven days after posting if posted to or from a place outside Australia). 20.5 RECEIPT - FAX If sent by fax, they are taken to have been received at the time shown in the transmission report as at the time that the whole fax was sent. - -------------------------------------------------------------------------------- 21 ASSIGNMENT The Buyer may not assign or otherwise deal with its rights under this agreement or allow any interest in them to arise or be varied in each case, without the consent of the Seller. - -------------------------------------------------------------------------------- 22 MISCELLANEOUS 22.1 DISCRETION IN EXERCISING OF RIGHTS A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this agreement expressly states otherwise. 22.2 PARTIAL EXERCISING OF RIGHTS If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later. 22.3 NO LIABILITY FOR LOSS A party is not liable for any Loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right or remedy under this agreement. 22.4 VARIATION AND WAIVER A provision of this agreement or right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound. 18 22.5 APPROVALS AND CONSENT A party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this agreement expressly provides otherwise. By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval. 22.6 REMEDIES CUMULATIVE The rights and remedies provided in this agreement are in addition to other rights and remedies given by law independently of this agreement. 22.7 NO MERGER The warranties, undertakings and indemnities in this agreement do not merge on Completion. 22.8 INDEMNITIES The indemnities in this agreement are continuing obligations, independent from the other obligations of the parties under this agreement and continue after this agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this agreement. 22.9 FURTHER STEPS Each party agrees, at its own expense, to do anything the other party asks (such as obtaining consents, signing and producing documents and getting documents completed and signed): (a) to bind the party and its successors under this agreement (b) to give effect to the intentions of the parties and the objectives of this agreement and the transactions contemplated by it including, without limitation, negotiating in good faith with respect to any matters requested by any of the parties to this agreement, and by the execution and delivery of documents; and (c) use its best endeavours to cause relevant third parties to do likewise to bind every party intended to be bound under this agreement. 22.10 ENTIRE AGREEMENT This agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. 22.11 SEVERABILITY If the whole of any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this agreement or is contrary to public policy. 19 - -------------------------------------------------------------------------------- 23 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 23.1 GOVERNING LAW This agreement is governed by the law in force in the place stated in the Details. Each party submits to the exclusive jurisdiction of the courts of that place. 23.2 SERVING DOCUMENTS Without preventing any other method of service, any document in an action may be served on a party by being delivered to or left for that party's address in the Details. - -------------------------------------------------------------------------------- 24 COUNTERPARTS This agreement may consist of a number of copies, each signed by one or more parties to the agreement. If so, the signed copies are treated as making up the one document and the date on which the last counterpart is executed will be the date of the agreement. - -------------------------------------------------------------------------------- 25 INTERPRETATION 25.1 DEFINITIONS These meanings apply unless the contrary intention appears. ACCOUNTING STANDARDS means the accounting standards required under the Corporations Act and, if no accounting standard applies under the Corporations Act in relation to an accounting term, the standards acceptable to the Australian Accounting Standards Board. APPOINTMENT DATE means 20 February 2002; ASSETS means the following assets: (a) Goodwill; (b) Plant and Equipment; (c) Intellectual Property; (d) Intellectual Property Licences (e) Contracts; (f) Records; (g) all other tangible or intangible assets owned or used by the Seller in the Business to the extent charged to NAB under the Charge, 20 but excludes the Excluded Assets. AUTHORISED OFFICER means a person appointed by a party to act as an Authorised Officer for the purposes of this agreement. BOOK DEBTS means trade debts and other receivables owed to the Seller in respect of the Business on the Effective Date and notes and securities for them held by the Seller. BRONTE P&E means the plant & equipment that had been stored by the Seller at premises at 1/4 Palmerston Avenue, Bronte. BUSINESS means the business of providing retail computer hardware and software solutions presently carried on by the Seller in Australia. BUSINESS DAY means a day other than a Saturday, Sunday or public holiday in the place or place(s) set out in the Details. BUSINESS LIABILITIES means all debts, liabilities and obligations of the Seller or any other person in respect of the Business incurred as at the Effective Date in whatever capacity and whether actual, prospective, contingent or otherwise and whether or not ascertained. BUSINESS NAMES means all registered and unregistered business names owned by the Seller and all associated goodwill. BUSINESS PREMISES means the premises at: (a) Ground Floor, 35 Spring Street, Bondi Junction, New South Wales; (b) 53 Gawler Street, Mt Barker, South Australia; and (c) Suite 6, Level 1, 899 Whitehorse Road, Box Hill, Victoria. CHARGE means the charge dated 21 March 1996 (ASIC registered number 536851) between the Seller and National Australia Bank Limited; CLAIM includes any allegation, debt, cause of action, Liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at law, in equity, under statute or otherwise. CLOSED CALLS means those service calls made by the Seller to customers in respect of the Business that have been confirmed in writing by the relevant customers as completed. COMPLETION means completion of the sale and purchase of the Business and the Assets in accordance with clause 3 ("Completion") and COMPLETE has a corresponding meaning. COMPLETION DATE means 3 May 2002. CONFIDENTIAL INFORMATION means all Information disclosed to the Buyer by the Seller or any Related Entity or Representative of the Seller, for or in connection with the Business, Assets or the operations of the Seller, including: 21 (a) information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of the Seller or any of its Related Entities; and (b) information derived or produced partly or wholly from the Information including without limitation any calculation, conclusion, summary or computer modelling; and (c) trade secrets or information which is capable of protection at law or equity as confidential information; and (d) this agreement, whether the Information was disclosed: (e) orally, in writing or in electronic or machine readable form; (f) before, on or after the date of this agreement; (g) as a result of discussions between the parties concerning or arising out of the Business; or (h) by the Seller or any of its Representatives, any of its Related Entities, any Representatives of its Related Entities or by any third person. CONTRACTS means the contracts and commitments set out in Schedule 4 of this agreement to the extent they may have been entered into by the Seller and which are not fully performed at the Effective Date, and for the avoidance of doubt does not include the Intellectual Property Licences, the lease of any real property at which the Business is carried on or any other contract to which the Seller is a party which is wholly or partly to be performed on or after the Effective Date. CORPORATIONS ACT means the Corporations Act 2001 (Cwlth). DETAILS means the section of this agreement headed "Details". DOMAIN NAME means the domain name sviretail.com.au. DUE DILIGENCE means the enquiries and investigations into the Assets, the Business and the prospects of the Business carried out by the Buyer and its Representatives. EFFECTIVE DATE means 1 May 2002. EXCLUDED ASSETS means: (a) Book Debts; (b) insurance policies owned by the Seller and the benefit of any Claims under them; and 22 (c) rights or choses in action or claims which may be made by the Receiver or the Seller against any third party and which arose before the Effective Date. EXCLUDED INFORMATION means Confidential Information which: (a) is in or becomes part of the public domain other than through breach of this agreement or an obligation of confidence owed to the Seller or any Related Entity of the Seller; (b) the Buyer can prove by contemporaneous written documentation was already known to it at the time of disclosure by the Seller or its Representatives (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or (c) the Buyer acquires from a source other than the Seller or any Related Entity of Representative of the Seller where such source is entitled to disclose it. GOODWILL means the goodwill of the Business including, but not limited to, the exclusive right of the Buyer to represent itself as carrying on the Business as the successor to the Seller. GOVERNMENT AGENCY means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity. GST has the meaning given to that term in the GST Law. GST LAW means the A New Tax System (Goods & Services Tax) Act 1999 (Cwlth), and any other legislation or regulation which imposes, levies, implements or varies a GST and any applicable rulings issued by the Commissioner of Taxation. GST RETURN has the meaning given to that term in the GST Law. INDEPENDENT VALUER means the person appointed as valuer jointly by the Buyer and the Seller or if they do not agree on the person to be appointed within 7 days of one party requesting appointment, the accountant appointed by the President of the Australian Institute of Chartered Accountants, NSW Branch at the request of either the Buyer or the Seller. INFORMATION means all Information regardless of its Material Form, relating to or developed in connection with: (a) the business, technology or other affairs of the Seller or any Related Entity of the Seller; (b) the Business; or (c) any systems, technology, ideas, concepts, know-how, techniques, designs, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs, (including without limitation computer software, manufacturing 23 processes or other information embodied in drawings or specifications), intellectual property or any other information owned or used by or licensed to the Seller or a Related Entity of the Seller. INTELLECTUAL PROPERTY means: (a) the Business Names; (b) the Trade Marks; (c) all Confidential Information owned by the Seller in connection with the Business; (d) all patents, patent applications, discoveries, inventions, registered and unregistered designs, copyright and similar rights owned by the Seller in connection with the Business; (e) Intellectual Property Rights owned by the Seller in the Proprietary Software and the Systems; and (f) the Domain Name, to the extent charged to NAB under the Charge. INTELLECTUAL PROPERTY LICENCES means all agreements under which the Seller obtains the right to use Intellectual Property Rights owned by a third party to the extent charged to NAB under the Charge. INTELLECTUAL PROPERTY RIGHTS means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967. LIABILITY includes all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses of whatsoever nature or description irrespective of when the acts, events or things giving rise to the liability occurred excluding any consequential or indirect losses, economic losses or loss of profits. LIQUIDATOR means Graham Bendeich. LOSS includes any damage, loss, cost, Claim, Liability or expense (including legal costs and expenses) excluding any consequential or indirect losses economic losses or loss of profits. MATERIAL FORM in relation to Information, includes any form (whether visible or not) of storage from which the Information can be reproduced and any form in which the Information is embodied or encoded. NAB means National Australia Bank Limited ACN 004 044 937. PLANT AND EQUIPMENT means all plant, equipment, motor vehicles, machinery, furniture, fixtures and fittings owned by the Seller in carrying on the Business on hand on the Completion Date (including those items specified in schedule 2 ("Plant and Equipment")) and all 24 consumables, spare parts, tools and other maintenance items, and office supplies but excluding Third Party Software. For the avoidance of doubt any Third Party Software listed in schedule 2 and any Third Party Software installed on equipment listed in schedule 2 is not PLANT AND EQUIPMENT. PROPRIETARY SOFTWARE means any software used in the Business, including the software programs and all associated technology and know-how which together comprise: (a) a package called "dOLFin" that enables retail, wholesale, distribution and manufacturing enterprises to conduct their transactions in an integrated, computerised environment; (b) a package called "dPOSit" that enables retail enterprises to conduct transactions at point of sale in an integrated, computerised environment; (c) a package called "RAGS" that enables clothing retail, wholesale and distribution enterprises to conduct transactions in an integrated, computerised environment; (d) a package called "Fastpos" that enables retail enterprises to conduct transactions at point of sale in an integrated, computerised environment; (e) a package called "CRMS" (also known as "Chapmans") that enables retail, wholesale, distribution and manufacturing enterprises to conduct their transactions in an integrated, computerised environment; (f) a package called "Rapidfire" that enables retail enterprises to conduct transactions at point of sale in an integrated, computerised environment; (g) a package called "merVYN" that is a merchandising planning system for retailers, and includes all Intellectual Property Rights of every kind in and to such programs, technology and know-how including, for the avoidance of doubt, all versions thereof (whether complete or works in progress), but excluding Third Party Software. PURCHASE PRICE means the aggregate consideration payable for the Business and Assets calculated in accordance with clause 2 ("Purchase Price") subject to any adjustment under clause 5.4. RECIPIENT means the recipient of any Supply made under or in connection with this agreement. RECORDS means originals and copies, in machine readable or printed form, of all books, files, reports, records, correspondence, documents and other material of or relating to or used in connection with the Business or the Assets and includes: 25 (a) sales literature, market research reports, brochures and other promotional material (including printing blocks, negatives, sound tracks and associated material); (b) all sales and purchasing records; (c) lists of all regular suppliers and customers; and (d) trading and financial records. RELATED ENTITY has the meaning it has in the Corporations Act. REPRESENTATIVE of a party includes an employee, agent, officer, director, auditor, adviser, partner, consultant, joint venturer or sub-contractor of that party. SUPPLIER means any party making a Supply under or in connection with this agreement. SUPPLY means any supply made by a party as defined in the GST Law that is made under or in connection with this agreement. SYSTEMS means all accounting systems (including all accounting, invoicing, debt control, credit control, debt collection, computer records, software and all ancillary data systems) used in the conduct of the Business and owned or licensed by the Seller. TAX INVOICE has the meaning given to that term in the GST Law. THIRD PARTY SOFTWARE means any software the Intellectual Property Rights in which are owned by a party other than the Seller. TRADE MARKS means all logos, symbols, get up, trademarks, trade names, service marks, brand names and similar rights that are owned by the Seller, whether registered or unregistered, and all associated goodwill, including the trade marks and registrations thereof listed in schedule 3. 25.2 GENERAL INTERPRETATION Unless the contrary intention appears a reference in this agreement to: (a) (CLAUSES, ANNEXURES AND SCHEDULES) a clause, annexure or schedule is a reference to a clause in or annexure or schedule to this agreement; (b) (VARIATIONS OR REPLACEMENT) a document (including this agreement) includes any variation or replacement of it; (c) (REFERENCE TO STATUTES) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (d) (SINGULAR INCLUDES PLURAL) the singular includes the plural and vice versa; 26 (e) (PERSON) the word "person" includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association or any Government Agency; (f) (EXECUTORS, ADMINISTRATORS, SUCCESSORS) a particular person includes a reference to the person's executors, administrators, successors, substitutes (including persons taking by novation) and assigns; (g) (TWO OR MORE PERSONS) an agreement, representation or Warranty in favour of two or more persons is for the benefit of them jointly and each of them individually; (h) (JOINTLY AND SEVERALLY) an agreement, representation or Warranty by two or more persons binds them jointly and each of them individually; (i) (CALCULATION OF TIME) if a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; (j) (REFERENCE TO A DAY) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (k) (ACCOUNTING TERMS) an accounting term is a reference to that term, as it is used in Accounting Standards; (l) (REFERENCE TO A GROUP OF PERSONS) a group of persons or things is a reference to any two or more of them jointly and to each of them individually; (m) (MEANING NOT LIMITED) the words "include", "including", "for example" or "such as" are not used as, nor is it to be interpreted as, a word of limitation and when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind; (n) (NEXT DAY) if an act under this agreement to be done by a party on or by a given day is done after 5.30pm on that day, it is taken to be done on the next day; (o) (NEXT BUSINESS DAY) if an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day; (p) (TIME OF DAY) time is a reference to Sydney time; (q) (DOLLARS) Australian dollars, dollars, $, A$ or AUD is a reference to the lawful currency of Australia. 25.3 HEADINGS Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this agreement. EXECUTED as an agreement 27 BUSINESS SALE AGREEMENT Signing page DATED: MAY 3, 2002 EXECUTED by QQQ SYSTEMS PTY LIMITED in ) accordance with section 127(1) of the ) Corporations Act 2001 (Cwlth) by authority of ) its directors: )
) ............................................ ) Signature of director/company secretary* .............................................. ) *delete whichever is not applicable Signature of director ) ) ............................................ .............................................. ) Name of director/company secretary* (block Name of director (block letters) ) letters) ) *delete whichever is not applicable EXECUTED by ACN 003 908 325 PTY LIMITED in ) accordance with section 127(1) of the ) Corporations Act 2001 (Cwlth) by authority of ) its directors: ) ) ............................................ ) Signature of director/company secretary* .............................................. ) *delete whichever is not applicable Signature of director ) ) ............................................ .............................................. ) Name of director/company secretary* (block Name of director (block letters) ) letters) ) *delete whichever is not applicable 80 SIGNED by ANTHONY MILTON SIMS in the presence ) of: ) ) ) .............................................. ) Signature of witness ) ) .............................................. ) ............................................ Name of witness (block letters) ) Signature of ANTHONY MILTON SIMS ) SIGNED by NEIL GEOFFREY SINGLETON in the ) presence of: ) ) ) .............................................. ) Signature of witness ) ) .............................................. ) ............................................ Name of witness (block letters) ) Signature of NEIL GEOFFREY SINGLETON )
81 Business Sale Agreement Dated ACN 003 908 325 Pty Limited (Receivers and Managers Appointed) (In liquidation) ("SELLER") QQQ Systems Pty Limited ("BUYER") Anthony Milton Sims and Neil Geoffrey Singleton ("RECEIVER") MALLESONS STEPHEN JAQUES Level 60 Governor Phillip Tower 1 Farrer Place Sydney NSW 2000 (61 2) 9296 2000 (61 2) 9296 3999 DX 113 Sydney Ref: SDS:NWE 82