SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 1,
2000
Goddard Industries, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 0-2052 04-2268165
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(State or Other (Commission (I.R.S. Employer
Jurisdiction File Number) Identification
No.)
of Incorporation)
705 Plantation Street, Worcester, Massachusetts 01605
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(Address of Principal Executive Offices) (Zip Code)
(508) 852-2435
Registrant's telephone number, including area code . . . .
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(Former Name or Former Address, If Changed Since Last
Report)
Item 2. Acquisition
On November 1, 2000, Goddard Industries, Inc. ( the
"Registrant") acquired through one of its subsidiaries
substantially all of the assets and assumed certain of the
liabilities of Mack Valves Pty Ltd. of Melbourne, Australia
("Mack Valves") for a cash purchase price of $6,921,000
Australian. The purchase price is subject to adjustment after
the completion of a post-closing review of the purchased
assets. The assets purchased from Mack Valves included its
fixed assets, intellectual property, usable inventory and
accounts receivable. The Registrant and its subsidiaries
funded the acquisition through secured credit facilities
furnished by Fleet National Bank and by National Australia
Bank Limited.
The Registrant and its subsidiaries manufacture cryogenic
valves used primarily by the industrial gas industries,
including atmospheric gases, LNG, liquid hydrogen and
specialty gases used in semiconductor manufacture. Mack
Valves manufactures a range of cryogenic valves complementary
to those of the Registrant, as well as a wide range of
industrial valves for specialized areas of industry. The
Registrant intends to continue to use these assets in
connection with its conduct of the business.
The terms of the transaction are more fully described in
the Sale of Business Agreement, dated as of November 1, 2000,
among an indirect subsidiary of the Registrant, Mack Valves,
Maxwell Industrial Sales Pty Ltd., Maxwell Charles Chester and
Jane Frances Chester, filed as an exhibit herewith.
There was no prior material relationship between the
Registrant or any of its affiliates and the sellers. The
terms of the transaction were a result of arms-length
negotiations between representatives of Mack Valves and the
Registrant.
Item 7. Financial Statements and Exhibits
(a) Financial Statements.
The required financial statements are not included
in this Report. The Registrant intends to file the
required financial statements not later than 60 days
following the date of this Report.
(b) Exhibits.
Exhibit No. Description of Exhibit
1 Form of Sale of Business Agreement *
(*) Confidential treatment requested for certain portions of
this document.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
GODDARD INDUSTRIES, INC.
Date: November 15, 2000 By:
/s/ Salvatore J. Vinciguerra
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Salvatore J. Vinciguerra,
President
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1 Form of Sale of Business Agreement *
(*) Confidential treatment requested for certain portions of
this document.
SALE OF BUSINESS AGREEMENT
THIS AGREEMENT is made the 1st day of November,
2000.
PARTIES
BETWEEN: MACK VALVES PTY LTD ACN 004 274 499 of 30 Burgess
Road, Bayswater North in the State of Victoria
(the 'Vendor')
AND: MAXWELL INDUSTRIAL SALES PTY LTD ACN 005 552 983
of 92 Mont Albert Road, Canterbury, Victoria 3126
and MAXWELL CHARLES CHESTER and JANE FRANCES
CHESTER both of 92 Mont Albert Road, Canterbury,
Victoria 3126 ('Warrantors')
AND: GODDARD INDUSTRIES PTY LTD ACN 094 830 145 of
Level 23, 525 Collins Street, Melbourne, Victoria
3000 (the 'Purchaser')
AND: GODDARD INDUSTRIES, INC. of 705 Plantation Street,
Worcester, Massachusetts, the United States of
America ('Goddard')
RECITALS
A. The Vendor conducts the Business and is the beneficial
owner of the Assets.
B. The Vendor has agreed to sell and the Purchaser has
agreed to purchase the Assets and assume certain
Liabilities on the terms and conditions contained in
this agreement.
C. The Warrantors acknowledge giving the warranties,
covenants, undertakings and indemnities in this agreement in
consideration for, and as an inducement to, the Purchaser
entering into this agreement.
D. Goddard acknowledges giving the guarantee and indemnity
in this agreement in consideration for, and as inducement to,
the Vendor entering into this agreement.
THE PARTIES AGREE THAT:-
1. INTERPRETATION
1.1 Definitions
In this agreement, unless the subject or the context
otherwise requires:-
'Accepted Liabilities' means those liabilities set out
in Schedule 1;
'Accounts Date' means 28 February 2000;
'Adjusted Accounts' means the balance sheet and profit
and loss statement of the Business for the 3 month
period ending on the date of this agreement;
'Adjusted Purchase Price' has the meaning set out in
clause 3.3 ;
'Assets' includes without limitation:
(a) Goodwill;
(b) Plant and Equipment;
(c) Intellectual Property;
(d) Stock;
(e) the Business Contracts;
(f) the Chattel Leases;
(g) Book Debts;
(g) the Property Leases; and
(h) all other property and assets of the Vendor used in the
Business except the Excluded Assets;
'Bayswater Lease' means the lease set out in Schedule 2;
'Book Debts' means the trade and other receivables owing
to the Vendor in respect of the Business;
'Business' means the business of designing,
manufacturing and supplying valves and related equipment
conducted by the Vendor under the Business Names from
the Site using the Assets;
'Business Contracts' means all agreements, arrangements,
understandings and orders entered into, made or accepted
by or on behalf of the Vendor in the conduct of the
Business that are not fully performed at the Completion
Date (other than the Property Leases, the Chattel Leases
and any Intellectual Property Licences);
'Business Day' means a day on which banks are open for
business in Melbourne, Victoria other than a Saturday or
Sunday, unless otherwise provided;
'Business Names' has the meaning set out in Schedule 3;
'Chattel Leases' means the lease and/or hire purchase
agreements set out in Schedule 4;
'Claim' means any claim, notice, demand, action,
proceeding, litigation, investigation or judgment
whether based in contract, tort, statute or otherwise;
'Completion' means completion of the sale and purchase
of the Assets contemplated in this agreement;
'Completion Accounts' means audited financial statements
of the Business, prepared in accordance with GAAP, as at
the Completion Date;
'Completion Date' has the meaning set out in clause 7;
'Contaminant' means a solid, liquid or gaseous
substance, odour, heat, sound, vibration or radiation
which is or may be:
(a) noxious or poisonous or offensive to the senses of
human beings;
(b) harmful or potentially harmful to the
health, welfare, safety or property of human
beings; and
(c) poisonous, harmful, or potentially harmful to
animals or plants; or
(d) detrimental to any beneficial use made of the
Environment;
'Disclosure Material' means all written information
provided by the Vendor to the Purchaser prior to the
date of this agreement;
'Employees' means all the persons employed by the Vendor
in the conduct of the Business at Completion, including
those persons listed in Schedule 5 who are employees of
the Vendor at Completion;
'Encumbrance' means any mortgage, lien, charge, pledge,
claim or other encumbrance;
'Environment' means the physical factors of the
surrounds of human beings including the land, waters,
atmosphere, climate, sound, odours, place, the
biological factors of animals and plants and the social
factors of aesthetics;
'Environmental Authorisation' means any authorisation,
approval, permit, licence or authority required by any
Environmental Law;
'Environmental Law' means a law regulating or otherwise
relating to the Environment including, without
limitation, land use, planning, pollution of the
atmosphere, water or land waste, the storage and
handling of chemicals, Hazardous Substances, or any
other aspect of protection of the Environment;
'Excluded Assets'
'Financial Year' means the 12 month period ending on the
Saturday closest to the last day of September of each
year, or if the Purchaser is unable to adopt that period
as its year of income for tax income purposes, the 12
month period ending 30 September of each year;
'GAAP' means Generally Accepted Accounting Principles in
Australia as determined by the Australian Accounting
Standard Board, and to the extent that any matter is not
covered by the Generally Accepted Accounting Principles,
the Australian Accounting Standards (generally accepted
accounting principles in Australia), consistently
applied;
'Goodwill' means the goodwill of the Business including,
but not limited to:
(a) Records;
(b) the exclusive right to carry on the Business at
the Site in succession to the Vendor under the Business Names;
'GST' and 'GST Act' means A New Tax System (Goods and
Services Tax) Act 1999 (Cth);
'Hazardous Substance' means any substance which is, or
may be, hazardous, toxic, dangerous or polluting or
which is regulated by any Environmental Law;
'Incentive Year' means the first 12 calendar months
following the Completion Date and after that each full
12 month Financial Year of the Purchaser;
'Independent Accountant' means a person appointed
jointly by the Vendor and the Purchaser or if they do
not agree on the person to be appointed within 7 days of
either party requesting appointment, a chartered
accountant appointed by the President of the Australian
Institute of Chartered Accountants Australia at the
request of either the Vendor or the Purchaser;
'Intellectual Property' means all intellectual property
and proprietary rights (whether registered or
unregistered) owned by the Vendor in the conduct of the
Business including:
as set out in Schedule 3;
'Intellectual Property Licences' means all agreements
under which the Vendor has the right to use, but not
ownership of, intellectual property used in connection
with the Business, details of which are set out in
Schedule 3;
'Leave Adjustment' means amounts (accrued but unpaid or
pro-rata or both) at the Completion Date:
'Liabilities' means all liabilities, losses, damages,
outgoings, costs and expenses of the Business other than
Accepted Liabilities;
'Management Accounts' means the balance sheet and the
profit and loss statement of the Vendor as at the
Accounts Date as set out in Schedule 10 [sgd] Salvatore
Vinciguerra for Goddard Industries Inc, Marc Andre
Daniel-Dreyfus for Goddard Industries Pty Ltd, Maxwell
Charles Chester in his own capacity and for Maxwell
Industrial Sales Pty Ltd and Mack Valves Pty Ltd, and
Jane Frances Chester together with the notes relating to
those accounts;
'Management Services Deed' means the deed set out in
Schedule 6;
'Motor Vehicles' means the motor vehicles listed in
Schedule 7;
'Net Worth' means the balance sheet value of the Assets
less liabilities:
(a) less the balance sheet value (gross cost less
depreciation and amortization) of the land and building at the
Premises and improvements, and
(b) less the amount of the net deferred tax benefit asset on
the balance sheet not attributable to accrued annual leave,
accrued long service leave and warranties,
as reported in the Management Accounts, Adjustment
Accounts and Completion Accounts (as applicable);
'Non Qualified Stock Options' means options, that are
not intended to comply as incentive stock options under
Section 422 of the Internal Revenue Code 1986 of the
United States of America (as amended from time to time),
to purchase shares in the capital of Goddard Industries,
Inc.;
'Person' means a natural person, corporation,
partnership, trust, estate, joint venture, sole
proprietorship, government or governmental subdivision
or agency, association, co-operative and any other legal
or commercial entity or undertaking;
'Plant and Equipment' means all fixed plant, equipment,
Motor Vehicles, machinery, spare parts, furniture,
fittings and other assets, fittings or chattels owned by
the Vendor and used in the conduct of the Business as at
the Completion Date including those items listed in
Schedule 7;
'Premises' means the premises at 30 Burgess Road,
Bayswater, Victoria;
'Property Leases' means the property lease for each
Site;
'Purchase Price' has the meaning set out in clause 2,
subject to adjustments made in accordance with this
agreement;
'Records' means all original or copy records, sales
brochures and catalogues, lists of customers, documents,
books, files, accounts, plans and correspondence
belonging to or used by the Vendor in the conduct of the
Business other than corporate accounting and statutory
records;
'Related Entity' has the meaning ascribed to that term
in the Corporations Law;
'Revenue' means the sales revenue of the Business (net
of discounts) as determined in accordance with GAAP;
'Site' means the Premises and the property leased by the
Vendor at:
(a) unit 2/ 129 Robinson Road, Geebung, Queensland 4034;
(b) unit 8/ 12 Tarlington Place, Smithfield, New South Wales
2164;
(c) unit 2/ 45 McCoy Street, Myaree, Western Australia 6154;
and
(d) 204 Prospect Road, Prospect, South Australia 5082;
'Stock' means:-
(a) full inventory of completed stock on hand;
(b) full inventory of component parts;
(c) all stock in the course of manufacture; and
(d) all other raw materials and trading stock owned by
the Vendor;
in the possession of the Vendor, or in transit and goods
ordered by and paid for by the Vendor prior to
Completion but not received by Completion other than
excessive, unsaleable, redundant or obsolete items;
'Systems' means all manufacturing, engineering, design
and accounting systems (including all accounting,
invoicing, debt control, credit control, debt
collection, computer records, software and all ancillary
data systems) other than corporate accounting and
statutory records used in the conduct of the Business
and owned or licensed by the Vendor;
'Trade Marks' means the registered and unregistered
trade marks used by the Vendor in the Business set out
in Schedule 3 and all associated goodwill;
'Transferring Employees' means the Employees who accept
the Purchaser's offer of employment referred to in
clause 14.1; and
'Warranties' means each of the representations and
warranties listed in Schedule 8 and elsewhere in this
agreement.
1.2 Construction
In this agreement, unless the subject or context
otherwise requires:
(a) words importing the singular include the plural and vice
versa;
(b) words importing one gender include the other gender and
references to persons include corporations and vice versa;
(c) a reference to any party or other person includes that
person's successors and permitted assigns;
(d) a reference to a statute, ordinance or other legislation
includes any amendment, replacement or re-enactment thereof
for the time being in force and includes all regulations, by-
laws and statutory instruments made thereunder;
(e) a reference to this or any other document includes a
reference to that document as amended, supplemented, novated
or replaced from time to time;
(f) a reference to a recital, clause or schedule is a
reference to a recital, clause or schedule of this agreement;
(g) a reference to writing includes all means of reproducing
words in a tangible and permanently visible form;
(h) a reference to time is a reference to time in the State
of Victoria;
(i) where a party comprises two or more persons any agreement
or obligation to be performed or observed by that party binds
those persons jointly and each of them severally, and a
reference to that party is deemed to include a reference to
any one or more of those persons;
(j) the headings in this agreement are not to affect its
interpretation;
(k) the recitals and the schedules form part of this
agreement; and
(l) other than as expressed in clause 8.2(a)(iii), all dollar
values are expressed in Australian dollars.
2. AGREEMENT TO SELL AND BUY THE BUSINESS
2.1 The Vendor as legal and beneficial owner agrees to sell
to the Purchaser and the Purchaser agrees to purchase from the
Vendor the Assets:
(a) free from any Encumbrance;
(b) for the Purchase Price; and
(c) with effect from Completion.
2.2 The Purchase Price for the Assets is $6,672,000:
to be paid in accordance with clause 7.
2.3 The Purchase Price is apportioned in accordance with the
Completion Accounts and all items of Plant and Equipment and
Motor Vehicles shall have been sold and purchased at the
depreciated value as set out in Schedule 9.
2.4 The Purchaser will pay the Purchase Price to the Vendor
or as the Vendor otherwise directs on Completion, by bank
cheque, telegraphic transfer to an account nominated by the
Vendor or otherwise in cleared funds.
2A GUARANTEE AND INDEMNITY
2A.1 The Vendor and the Warrantors guarantee to, and indemnify
and will keep indemnified, the Purchaser from:
(a) all Liabilities which the Purchaser suffers or incurs by
reason of:
(i) any of the Warranties being untrue or inaccurate in any
respect;
(ii) any other covenant or representation of the Vendor and or
the Warrantors in this agreement being untrue or inaccurate in
any respect; or
(iii) any failure by the Vendor and or the Warrantors to
fulfil their obligations under this agreement;
(b) all Claims made by any third party in relation to:
(i) a matter which constitutes, or in circumstances that
constitute, a breach of any of the Warranties, any other
covenant or representation of the Vendor in this agreement; or
(ii) any failure by the Vendor and or the Warrantors to fulfil
their obligations under this agreement.
2A.2 The parties agree that the obligations of Maxwell
Charles Chester and Jane Frances Chester under this
clause 2A shall only continue for a period of 5 years
commencing from the Completion Date.
2A.3 Goddard guarantees to, and indemnifies and will keep
indemnified, the Vendor from:
(a) all Liabilities which the Vendor suffers or incurs by
reason of a failure by the Purchaser to fulfil its obligations
under this agreement;
(b) all Claims made by any third party in relation to any
failure by the Purchaser to fulfil its obligations under this
agreement.
3. PURCHASE PRICE ADJUSTMENTS
3.1 Preparation of Adjusted Accounts
Immediately on execution of this agreement, Vendor will
deliver to the Purchaser the Adjusted Accounts as at 30
September 2000.
3.2 Principles for Preparation of Adjustment Accounts
The Adjustment Accounts referred to in clause 3.1 must
be prepared on a basis consistent with the Management
Accounts.
3.3 Adjusted Purchase Price
The Adjusted Purchase Price is the Purchase Price plus
the increase, or minus the decrease, in the Net Worth of
the Adjusted Accounts compared to the Net Worth of the
Management Accounts.
3.4 The Purchaser must pay the Adjusted Purchase Price on the
Completion Date in accordance with clause 7.
3.5 Preparation of Completion Accounts
No later than 30 days from the Completion Date the
Vendor will deliver the Completion Accounts to the
Purchaser
3.6 Calculation of Final Adjusted Purchase Price after
Completion
(a) The 'Final Adjusted Purchase Price after Completion' is
the Purchase Price plus the increase, or minus the decrease,
in the Net Worth of the Completion Accounts compared to the
Net Worth of Management Accounts.
(b) If the Final Adjusted Purchase Price after Completion
Date calculated from the Completion Accounts:
(i) is less than the Adjusted Purchase Price calculated from
the Adjusted Accounts, the Vendor must pay to the Purchaser
the difference in cleared funds within 10 days of receiving
written demand;
(ii) is greater than the Adjusted Purchase Price calculated
from the Adjusted Accounts, the Purchaser must pay to the
Vendor the difference in cleared funds within 10 days of
receiving written demand.
3.7 Dispute
(a) If the Vendor and the Purchaser cannot resolve any
dispute arising in relation to this clause 3 then that dispute
must promptly be submitted for determination to the
Independent Accountant who will determine the matter in
dispute having regard to the principles set out in this
clause.
(b) The Independent Accountant will make his determination no
later than 20 days after his/ her appointment.
(c) The Independent Accountant will determine absolutely the
procedures for settlement of the dispute.
(d) The Independent Accountant will act as an expert and not
as an arbitrator and the decision of the Independent
Accountant will be final and binding on the parties in the
absence of manifest error. The cost of such determination by
the Independent Accountant is to be borne by the parties in
accordance with the Independent Accountant's determination.
(e) If the Net Worth adjustment in respect of the Completion
Accounts under clause 3.7 is in dispute:
(i) pending the decision of the Independent Accountant, the
Purchase Price will be deemed to be the undisputed portion of
the Purchase Price;
(ii) the Purchase Price will be modified according to the
Independent Accountant's decision in respect of the Net Worth
adjustment in the Adjusted Accounts; and
(iii) the parties agree to pay any outstanding amount of
the Purchaser Price to the other party, as determined by the
Independent Accountant under clause 3.7(e)(ii), within 10 days
of receiving written notice of the Independent Accountant's
decision.
4. TRADING RESPONSIBILITIES
4.1 Income and profits
All income, profits and benefits of the Business:
(a) up to and including Completion, belong to the Vendor; and
(b) after Completion, belong to the Purchaser.
4.2 Liabilities
(a) The Purchaser accepts the Accepted Liabilities from the
Completion Date.
(b) All Liabilities of the Business created after the
Completion Date are the responsibility of the Purchaser and
the Purchaser indemnifies, and keeps indemnified, the Vendor
from and against those Liabilities.
(c) All Liabilities of the Business, other than Accepted
Liabilities up to and including Completion, are the
responsibility of the Vendor and the Vendor indemnifies, and
keeps indemnified, the Purchaser from and against those
Liabilities.
5. ACCESS TO BUSINESS AND RECORDS
5.1 Purchaser's right to access
The Vendor must facilitate and ensure that the
Purchaser, its agents, representatives, accountants and
solicitors are authorised and provided with access to
the Site, the Records and the Employees at all
reasonable times before the Completion Date to enable
the Purchaser to become familiar with the conduct of the
Business and to conduct such due diligence
investigations as the Purchaser requires.
5.2 Purchaser's right to copy material
In exercise of the rights granted to the Purchaser under
clause 5.1, the Purchaser may, at its cost, make copies
of the material examined.
6. CONTINUITY OF BUSINESS
The Vendor must prior to Completion:
(a) carry on the Business in the usual and ordinary course;
and
(b) not do anything which may damage the Goodwill.
7. COMPLETION
7.1 Completion must take place no later than 10 Business Days
after the date of this agreement ('Completion Date').
7.2 At Completion the Vendor agrees to:
(a) provide the Purchaser with possession of the Business;
(b) deliver to the Purchaser:
(i) possession and control of the Assets including duly
executed transfers required to vest the Assets in the
Purchaser;
(ii) certificates or other evidence of title to the Assets;
(iii) stamped original Business Contracts, evidence of the
other parties' consents to the assignment of the Business
Contracts (if available) and duly executed assignments of
those contracts;
(iv) stamped original Chattel Leases, evidence of the lessors'
consents to the transfers of the Chattel Leases (if available)
and duly executed assignments of those leases;
(v) certificates of registration and duly executed
assignments of the Intellectual Property (in registrable form
if required to record a change of ownership);
(vi) certificates of registration and duly executed notices of
disposition in respect of the Motor Vehicles;
(vii) stamped original Property Leases, evidence of the
lessor's consent to the assignment of the Property Leases and
an executed assignment of the Property Leases;
(viii) counterpart of the Bayswater Lease executed by the
Vendor;
(ix) the Records, except that the Vendor may maintain any
document required by law to be held by the Vendor and deliver
copies of those retained documents to the Purchaser;
(x) a list of the Book Debts (including the name, address and
amount owed for each debtor);
(xi) a deed of release from the National Australia Bank
Limited ACN 004 044 937, the Vendor's mortgagee;
(xii) evidence that the Vendor has changed its name so
that it no longer includes the words 'Mack' or 'Mack Valves'
or anything deceptively similar;
(xiii) certificates of registration and executed transfers,
consents and any other document, required to transfer
ownership in all internet domain names, World Wide Web URL's
or addresses, and electronic mail addresses;
(xiv) a copy of the Management Services Deed; and
(xv) any other document or thing reasonably necessary to give
full effect to this agreement as it relates to the Vendor,
provided that the Purchaser is to preserve and
make available as and when reasonably required by
the Vendor all electronic and hard copy records
which the Vendor may at any time in the future
require to satisfy any enquiry of the Australian
Taxation Office or any other governmental or
statutory authority.
(c) deliver those Assets hereby sold capable of
transfer by delivery and permit the Purchaser to take
possession of such Assets, the leased chattels set out in
Schedule 4 and the Premises;
(d) assist the Purchaser with the necessary forms and
consents to enable the utility services provided to the
Business, including those telephone, facsimile and other
communication services (with the benefit of the same numbers)
requested by the Purchaser, to be transferred to the Purchaser
with effect from the Completion Date without interruption of
those services; and
(e) fully co-operate with the Purchaser and assist the
Purchaser in relation to the handover of the Business.
7.3 At Completion the Purchaser agrees to pay the Purchase
Price to the Vendor.
7.4 On the Completion Date property in the Business and the
Assets will pass to the Purchaser. Until the Completion Date
property in the Business and the Assets shall be at the risk
of the Vendor.
8. PURCHASE PRICE INCENTIVE PAYMENTS
8.1 The Purchaser agrees to pay to the Vendor the following
purchase price incentive payments on the terms and conditions
set out in this clause 8 ('Incentive Payments').
9. MOTOR VEHICLES
9.1 Vendor's cost
The Vendor must, at its cost, prepare any notice of
disposal and obtain a road worthy certificate, not less
than 10 days prior to Completion Date, in relation to
any Motor Vehicle sold under this agreement.
9.2 Purchaser's cost
The Purchaser must:
(a) at its cost, prepare and lodge any notice of acquisition
or other documents required to be lodged under the relevant
motor vehicle legislation; and
(b) pay all duties payable with respect to the transfer of
ownership of any Motor Vehicle under this agreement.
10. COMPANY AND BUSINESS NAMES AND OTHER TRANSFERS
10.1 The Vendor will do all such acts and things and execute
all such documents (which shall be in a form acceptable to the
Purchaser) as may be necessary or desirable to be done or
executed in order to:
11. LEASE OF PREMISES
11.1 The Vendor shall grant to the Purchaser, and the
Purchaser shall take from the Vendor, a lease of the Premises
in the form set out in Schedule 2 ('Bayswater Lease').
11.2 The Vendor shall assign to the Purchaser all of its
interest as lessee of the Property Leases (other than the
Premises). The Vendor shall obtain the consent of each
respective owner of the Sites and the Purchaser undertakes
that as and from the Completion Date, it shall assume and
perform and observe the obligations of the Vendor contained in
the Property Leases and from the Completion Date shall
indemnify and keep indemnified the Vendor against all claims
and demands of any nature in respect of the Property Leases
arising on or after the Completion Date.
12. CHATTEL LEASES AND HIRE PURCHASE AGREEMENTS
12.1 The Vendor shall assign to the Purchaser all of its
interest as hirer or lessee in the Chattel Leases and the full
benefit of the Chattel Leases.
12.2 The Vendor shall obtain the consent of the owner or
lessor of each of the Chattel Leases.
12.3 The Purchaser undertakes that as from the Completion Date
it shall assume and perform and observe the obligations of the
Vendor contained in the Chattel Leases and from the Completion
Date shall indemnify and keep indemnified the Vendor against
all claims and demands of any nature in respect of any of the
Chattel Leases arising on or after the Completion Date.
13. VENDOR'S COVENANTS
13.1 The Vendor hereby represents and warrants to the
Purchaser that:
(a) as from the date of this agreement until the Completion
Date the Vendor shall carry on the Business in the usual and
ordinary course and not do anything to damage the Goodwill.
(b) the Assets, other than any Plant and Equipment
which is the subject of any of the Chattel Leases, will not at
the Completion Date be subject to any Encumbrance and the
Vendor has or will have on the Completion Date legal and
beneficial title to all of the Assets to be sold;
(c) the Vendor will not at any time after the date of
this agreement do or suffer to be done any act, matter or
thing whereby the Purchaser may be interfered with,
interrupted or injured in any way in its conduct of the
Business except to the extent that the Vendor is seeking
redress against any default by the Purchaser of its
obligations under this agreement;
(d) there is no litigation or prosecution pending nor
any threatened against the Vendor or in respect of the Assets,
orders, unfulfilled Business Contracts, Goodwill or other
assets hereby sold which has not been disclosed in writing by
the Vendor to the Purchaser prior to the date of this
agreement;
(e) the Vendor shall pay, settle and discharge all debts
and liabilities incurred as and when due by it in connection
with the Business up to and including the Completion Date and
the Vendor shall indemnify and keep the Purchaser indemnified
from and against all claims in respect of any such debts and
liabilities;
(f) the Chattel Leases are valid and subsisting and the
Vendor is not and will not be at the Completion Date in breach
of any of the terms, conditions, and provisons contained in
those agreements;
(g) the Plant and Equipment sold will be in
substantially the same state and condition (fair wear and tear
excepted) at the Completion Date as at the date of this
agreement;
(h) the Vendor will carry out repairs and maintenance to
the chattels, the Plant and Equipment the subject of the
Chattel Leases and any other Plant and Equipment on the Sites
in accordance with good commercial practice and standards of
maintenance and as required where relevant under the Chattel
Leases and the Property Leases;
(i) until the Completion Date the Vendor will not other
than in the normal course of Business replace or enter any
contract to replace any items of Plant and Equipment used in
the Business without the prior written consent of the
Purchaser.
14. EMPLOYEES
14.1 Offer letters
On or before the Completion Date, the Vendor and the
Purchaser must jointly issue to each Employee a letter
under which the Purchaser offers to employ that Employee
as and from Completion on terms identical to the terms
of employment existing at the date of this agreement
between the Vendor and that Employee.
14.2 Vendor's obligations
The Vendor must on the Completion Date:
(a) pay to each Employee all accrued wages, salary,
commissions and bonuses in respect of that Employee's contract
of employment with the Vendor;
(b) release each Transferring Employee from his or her
employment with the Vendor;
(c) ensure that all employer superannuation contributions due
to be made by the Vendor on or before the Completion Date in
respect of each Transferring Employee have been made; and
(d) allow to the Purchaser, as a deduction from the Purchase
Price, the Leave Adjustment.
14.3 Purchaser's obligations
From the date after the Completion Date the Purchaser
will:
(a) be responsible for and will indemnify the Vendor for all
wages, salary, commissions and bonuses which accrue to
Transferring Employees after the Completion Date;
(b) allow to each Transferring Employee an entitlement to
sick leave which includes sick leave entitlements that had
accrued to that Employee as an employee of the Vendor but were
untaken at the Completion Date; and
(c) treat the period of service (including any period of
service deemed by award, statute or contract) which each
Transferring Employee had with the Vendor as service with the
Purchaser.
15. SUPERANNUATION
Where any Transferring Employee is a member of the
Superannuation Trust of Australia or is a member of the
MLC Superannuation Fund ('Fund'):
(a) the Vendor must, as soon as reasonably practicable, use
its best endeavours to procure that the trustee of the Fund
agrees to the Purchaser becoming a participating employer in
the Fund.
16. DEFAULT
16.1 In addition to the other rights and remedies available to
the Vendor at law or in equity if the Purchaser makes default
in payment of any sum of money due under this agreement or in
the performance or observance of any of the terms or
conditions of this agreement ('Owed Amount'):
(a) interest at the rate of 12.5% per annum computed on the
Owed Amount during the period of default shall be paid on
demand by the Purchaser to the Vendor and without prejudice to
the Vendor's rights under clause 16.1(b);
(b) the whole of the Owed Amount shall at the option of the
Vendor and without prejudice to any other rights of the Vendor
become immediately due and recoverable.
16.2 Time shall be the essence of this agreement save that the
Vendor shall not be entitled to exercise any right referred to
in clauses 16.1(a) and 16.1(b) unless and until the Vendor
serves on the Purchaser a notice in writing specifying the
default and stating the Vendor's intention to exercise such
rights and remedies unless the default is remedied within a
period of not less than ten (10) clear days from the date of
service of such notice and the Purchaser fails within such
period to remedy such default.
17. RESTRAINT
17.1 In consideration of the Purchaser entering into this
agreement, and the Purchaser agreeing, at the Vendor's
request, to enter into the Management Services Deed for a
minimum fixed period of three years commencing on the
Completion Date, the Vendor covenants with the Purchaser that
it will not, and will procure that each of its Related
Entities will not, without the prior consent in writing of the
Purchaser (which consent may be withheld by the Purchaser at
its absolute and unfettered discretion) during the Restraint
Period:
(i) manufacture, sell or offer for sale or in any way be
concerned or associated with equipment or any other accessory
equipment which is, or is similar to that, currently
manufactured or offered for sale by the Vendor whether alone
or in association with or in partnership with or as a
shareholder or unitholder in or member of any, firm,
corporation, trust or association provided that the Vendor
shall not be prohibited by this clause from holding shares in
a company listed on any stock exchange in Australia which
shares total in number and value less than 5% of the issued
capital of a company conducting any business activity that
competes with the Purchaser or conflicts with the Vendor's
obligations under this clause 17.1;
(ii) solicit, canvass, induce or encourage any person who at
any time during the six month period ending on the Completion
Date was an Employee or agent of the Vendor to leave the
employment or agency of the Purchaser;
(iii) solicit, canvass, approach or accept any approach
from any person who was at any time during the six month
period ending on the Completion Date a customer of the Vendor
with a view to obtaining the custom of any such person in a
business which is the same or similar to the Business; or
(iv) interfere with the relationship between the Purchaser and
its clients, employees or suppliers.
17.2 For the purposes of clause 17.1, 'Restraint Period' means
each of the following periods of time separately:
17.3 This clause 17 has effect as separate and independent
covenants and restraints consisting of each separate covenant
and restraint set out in clauses 17.1 and 17.2 and is
cumulative in effect. If any of those covenants and
restraints is or becomes invalid or becomes unenforceable for
any reason, that will not affect the validity or
enforceability of the others.
18. NOTICE TO CUSTOMERS AND SUPPLIERS
On or about the Completion Date the Vendor and the
Purchaser must send to each of the customers and
suppliers of the Business a letter in a form acceptable
to the Purchaser announcing the sale of the Business.
Save as aforesaid, no public announcement of the sale
and purchase of the business shall be made otherwise
than in a joint announcement in a form approved by the
Vendor and the Purchaser.
19. SERVICE CONTRACT
The Vendor agrees to provide management services to the
Purchaser in connection with the business on the terms
and conditions set out in the Management Services Deed.
20. WARRANTIES
20.1 Vendor warranties
The Vendor and the Warrantors jointly and severally
represent and warrant to the Purchaser that each of the
Warranties is true and accurate and not misleading at
the date of this agreement and on each day after the
date of this agreement up to and including Completion.
20.2 Separate Promises
Each Warranty is a separate representation and warranty,
the interpretation of which is not limited or restricted
by any other Warranty.
20.3 After Completion
Each of the Warranties remains in full force and effect
on and after Completion despite Completion.
20.4 Purchaser to give notice of Claim
If any facts arise to the knowledge of the Purchaser
which might give rise to a Claim under the Warranties,
the Purchaser must promptly give written notice of the
Claim to the Vendor setting out reasonable particulars
of the Claim.
20.5 Payment for breach
A payment made for a breach of any Warranty that:
(a) relates to one or more of the Assets, is to be treated as
a reduction in the Purchase Price attributed to each relevant
Asset; or
(b) does not relate to specific Assets, is to be treated as a
reduction in the Purchase Price for all of the Assets on a pro
rata basis.
20.6 Environmental Reports
The parties acknowledge and agree that the Purchaser
will at its expense authorise and cause to be conducted
an environmental review of the Premises ('Environmental
Review') as soon as possible after the signing of this
agreement with the following application:
(a) the Environmental Review will take the form of either an
update of the environmental report previously prepared for the
Premises ('Existing Report') or a new review depending on
whether or not the Vendor procures the Existing Report to be
provided not less than 7 days prior to the Completion Date;
(b) if the Environmental Review identifies remedial works
required to ensure that the Premises complies with all
Environmental Laws and/or the removal of any Contaminants or
Hazardous Substances then the Vendor covenants at its expense
to effect those remedial works as soon as possible after the
delivery of the Environmental Review; and
(c) the Vendor indemnifies and will keep indemnified the
Purchaser from any liability, costs and obligations with
respect to the compliance of the Premises with Environmental
Laws and Environmental Authorisations up to the Completion
Date.
21. SUPPLY OF A GOING CONCERN
21.1 The Vendor and the Purchaser agree that the sale of the
Assets and the supply by the Vendor of all other things
under this agreement is the supply of a going concern
for the purposes of section 38-325(1)(c) of the GST Act.
21.2 The Vendor warrants that it carries on, and will carry
on, the Business until the day of the supply of the
going concern under this agreement.
21.3 If the Vendor provides to the Purchaser a written
determination issued by or on behalf of the Commissioner
of Taxation stating that the sale of the Assets is
considered to be taxable supply then clause 22 shall
apply in respect of that supply.
22. GST
22.1 Unless otherwise specified, any reference to an amount
payable or consideration to be provided for a supply to
be made by one party ('Supplier') to another party
('Recipient') under or in connection with this agreement
(other than a supply referred to in clause 22.6) is a
reference to that amount or consideration having been
determined without provision for any GST payable by the
Supplier on that supply ('GST Exclusive Consideration').
22.2 Subject to clause 22.3, the consideration payable for any
taxable supply referred to in clause 22.1 shall be the GST
Exclusive Consideration for that supply increased by an amount
equal to the GST which the Supplier is or becomes liable to
pay in respect of that taxable supply, so that the Supplier
retains, after deducting the GST, the GST Exclusive
Consideration.
22.3 Clause 22.2 shall not apply in respect of the sale or
supply of the Assets and other things necessary for the
conduct of the going concern unless the Vendor provides to the
Purchaser a written determination as contemplated by clause
21.3.
22.4 Subject to clause 22.5, any increase to the GST Exclusive
Consideration payable for a taxable supply arising pursuant to
clause 22.2 shall be payable at the same time and in the same
manner as the GST Exclusive Consideration for the supply is
due to be paid or provided.
22.5 If the consideration for the Assets (that is the Purchase
Price) is increased pursuant to clause 22.2, the increase in
that consideration shall be paid by the Purchaser to the
Vendor no later than 21 days after the end of the tax period
(for the Purchaser) in which Completion occurs.
22.6 To the extent that the consideration payable by one party
('Payer') to satisfy a claim or a right to a claim made by
another party ('Releasor') under or in connection with this
agreement (including a claim for breach of warranty or
misrepresentation) is consideration:
(a) for a taxable supply made by the Releasor; and
(b) is calculated or determined without having regard to the
liability of the Releasor to pay GST on that taxable supply
(such consideration referred to as the 'GST Exclusive Release
Amount'),
then the consideration for that taxable supply shall be
the GST Exclusive Release Amount increased by an amount
equal to the GST which the Releasor is or becomes liable
to pay on that release so that the Releasor retains,
after deducting the GST, the GST Exclusive Release
Amount.
22.7 Any increase to the consideration for a taxable supply
arising pursuant to clause 22.6 shall be payable at the
same time and in the same manner as the GST Exclusive
Release Amount for the supply is due to be paid or
provided.
22.8 The Supplier shall provide to the Recipient a tax
invoice for each taxable supply it makes under or in
connection with this agreement at or before the time
when the consideration for that supply is due to be paid
or provided.
22.9 If a payment to the Supplier under this agreement is a
reimbursement or indemnification, calculated by
reference to a loss, cost or expense incurred by the
Supplier, then (before clause 22.2 or clause 22.6 is
applied in respect of that payment) the payment will be
reduced by the amount of the input tax credit to which
the Supplier is entitled to for that loss, cost or
expense.
22.10The Purchaser and the Vendor separately warrant that
they are now and will be at Completion registered
pursuant to Part 2-5 of GST Act.
22.11In clauses 21 and 22, the terms 'consideration', 'input
tax credit', 'tax invoice', 'registered', 'GST',
'supply', 'tax period' and 'taxable supply' have the
meaning given to those terms in the A New Tax System
(Goods and Services Tax) Act, 1999.
23. MISCELLANEOUS
23.1 Further acts
Each party agrees to do all things as may be necessary
or desirable to give full effect to every part of this
agreement if asked in writing by another party to do so.
23.2 Assignment
Neither the rights nor the obligations of either party
under this agreement may be assigned, transferred,
subcontracted or otherwise disposed of, in whole or in
part, without the prior written consent of the other
parties.
23.3 Waiver
No waiver by a party of any default in the strict and
literal performance of or compliance with any provision,
condition or requirement of this agreement is to be
deemed to be a waiver of strict and literal performance
of and compliance with any other provision, condition or
requirement herein nor to be a waiver of or in any
manner release a party from strict and literal
performance of and compliance with any provision,
condition or requirement in the future nor shall any
delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such
right accruing to such party thereafter.
23.4 Notice
(a) Any notice, demand or other communication ('notice') to
be given or required to be made pursuant to this agreement is
to be in writing and is to be given by post, facsimile or hand
to a party at the party's address following:-
(i) Vendor
92 Mont Albert Road,
Canterbury, Victoria 3126
Purchaser
c/- Minter Ellison Lawyers
525 Collins Street,
Melbourne, Victoria 3000
(ii) or at such other address or facsimile number as is
notified by one party to the other parties.
(b) A notice is deemed to be given or served:
(i) where sent by prepaid post on the second business day
following the day on which it was posted;
(ii) where transmitted by facsimile during normal business
hours on a Business Day on that day, or in any other case of
transmission by facsimile on the business day following the
day of transmission;
(iii) where delivered by hand during normal business hours
on a Business Day on that day, or in any other case of hand
delivery to on the Business Day following the day of delivery.
23.5 Costs
Each party is responsible for its own costs in relation
to the preparation and execution of this agreement. The
Purchaser is to pay all stamp duties, costs and charges
in respect of the stamping of this agreement and any
other document giving effect to this agreement.
23.6 Provisions severable
If any provision of this agreement is invalid, illegal
or unenforceable in any respect the validity, legality
and enforceability of the remaining provisions will not
be affected and such invalid, illegal or unenforceable
provision is to be severed from this agreement.
23.7 Governing law
This agreement is governed by and construed in
accordance with the laws of the State of Victoria,
Australia and the parties irrevocably submit to the
jurisdiction of the courts of that State.
23.8 Counterparts
This agreement may be executed in more than one
counterpart, each of which when executed by all the
parties and delivered is deemed to be an original.
23.9 Variation
No part of this agreement may be amended or modified
unless reduced to writing making specific reference to
this clause and signed by the parties hereto or their
authorised representatives.
23.10 Entire agreement
This agreement sets forth the entire agreement and
understanding between the parties hereto with respect to
the subject matter hereof and supercedes all prior
agreements, understandings and representations.
EXECUTED by MACK VALVES PTY )
LTD )
)
[Sgd] Jane Chester [Sgd] Max Chester
Signature of director Signature of director/company
secretary
(Please delete as applicable)
JANE CHESTER
MAX CHESTER
Name of director (print) Name of director/company
secretary (print)
EXECUTED by MAXWELL INDUSTRIAL )
SALES PTY LTD )
)
[Sgd] Jane Chester [Sgd] Max Chester
Signature of director Signature of director/company
secretary
(Please delete as applicable)
JANE CHESTER
MAX CHESTER
Name of director (print) Name of director/company
secretary (print)
SIGNED by MAXWELL CHARLES )
CHESTER in the presence of )
)
[Sgd] Christopher Jeremy [Sgd] Max Chester
Gill
Signature of witness Maxwell Charles Chester
CHRISTOPHER JEREMY GILL
Name of witness (print)
SIGNED by JANE FRANCES )
CHESTER in the presence of )
)
[Sgd] Christopher Jeremy [Sgd] Jane Frances Chester
Gill
Signature of witness Jane Frances Chester
CHRISTOPHER JEREMY GILL
Name of witness (print)
EXECUTED by GODDARD INDUSTRIES )
PTY LTD )
)
[Sgd] Marc A. Daniel-Dreyfus [Sgd] Salvatore J. Vinciguerra
Signature of director Signature of director/company
secretary
(Please delete as applicable)
MARK A. DANIEL-DREYFUS
SALVATORE J VINCIGUERRA
Name of director (print) Name of director/company
secretary (print)
EXECUTED by GODDARD )
INDUSTRIES, INC )
)
[Sgd] Salvatore J Vinciguerra [Sgd] Amy Alston
Signature of authorised Signature of witness
representative
AMY ALSTON
SALVATORE J VINCIGUERRA
Name of authorised Name of witness(print)
representative (print)
