Nevada
(state of
incorporation)
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333-38838
(Commission File Number)
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95-4442384
(IRS Employer
I.D. Number)
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29115 Valley Center Rd., K-206
Valley Center, CA 92082
(866) 800-2978
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Item 1.01
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Entry into a Material Definitive Agreement
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Exhibit No
.
|
Description
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|
10.1
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Agreement for Sale and Purchase of a Business, dated May 29, 2015, by and between Gourmet Foods Ltd. and Concierge Technologies, Inc.
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99.1
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Press Release of Concierge Technologies, Inc., dated June 2, 2015.
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CONCIERGE TECHNOLOGIES, INC. | |||
Date: June 2, 2015
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By:
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/s/ Nicholas Gerber | |
Nicholas Gerber, | |||
Chief Executive Officer | |||
Possession Date (subclause 3.1):
1 Calendar month form unconditional date
. Possession Time (subclause 3.1):
4pm
GST Date (clauses 12.0 and 13.0): Interest rate for late settlement:
16 %
|
Maximum percentage stock value adjustment (subclause 5.3):
20
Turnover warranty (subclause 6.5):
$5,466,981.00
(excluding GST) covering the period from
1/04/2013
to
31/03/02014
|
Vendor’s assistance period (subclause 6.4(5)
1 Calendar month from the possession date
Vendor’s restraint of trade (subclause 7.1):
3 years
after the possession date within
500
kilometers of the Premises
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LEASE DETAILS Refer Clause 24
Landlord:
Commencement Date: Term:
Present Rental: Right(s) of Renewal (if any)
Rent Review Dates:
Date of Landlord’s consent (subclause 8.2)
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2)
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“Agreement” means this document including the front page, these general terms of sale any further terms of sale and any schedules and attachments.
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3)
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“Assets” means, collectively, the tangible assets and the intangible assets including those listed those listed in Schedule 1 of this agreement.
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4)
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“Business” means the business described on the front page of this agreement, including assets.
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5)
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“Business records” means all existing books, records, files and other relevant information (includinge lectronically stored information) concerning the business, including details of customers, suppliers, agents, and distributors excluding the vendor’s personal records.
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6)
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Default GST means any interest, or late payment penalty, or shortfall penalty, or other sum imposed on the vendor under the Tax Administration Act 1994 by reason of non-payment, of GST payable in respect of the supply made under this agreement but does not include any such sum levied against the vendor by reason of a default by the vendor after payment of GST to the vendor by the purchaser.
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7)
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“Incomings” means all revenue receivable as a result of the trading activities of the business.
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8)
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“GST” means Good and Services Tax arising pursuant to the Goods and Services Tax Act 1985 and “GST Act” means the Goods and Services Tax Act 1985.
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9)
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“Intangible assets” means the intangible rights, licenses and benefits owned or used by the vendor in respect of the business, including:
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a)
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the vendor’s rights under all contracts relating to the supply of goods or services to the vendor in connection with the business which, all the settlement date, remain to be performed in whole or in part; and
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b)
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the vendors right under any licence agreement or equipment lease entered into in connection with the business which, at the settlement date, remain to be performed in whole or in part; and
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c)
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all intellectual property rights and interests owned or held by the vendor, or used by the vendor in connection with the business, including, without limitation, patents, trademarks, copyrights, software, registered designs, trade names, domain names, domain names, symbols, logos and trade sectors; and
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d)
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the good will of the business including, where applicable, the benefit of the lease.
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10)
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“Lease” means the lease of the premises and includes any formal document or letter evidencing any variation, renewal, extension, review or assignment that will b e operative at the settlement date.
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11)
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“Outgoings” includes any payments made or to be made by the vendor on or before the settlement date in respect of the lease or of goods or services supplied to the vendor in connection with the business (including but not limited to prepayment of advertising, telephone listings, trade listings), where those goods or services have not been supplied (in whole or in part) by the settlement date or where the vendor has not obtained the full benefit of such services by the settlement date.
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12)
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“Premises” means the premises from which the business is conducted, the address of which is stated on the front page of this agreement.
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13)
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“purchase price” means the total purchase price stated on the front page of this agreement, which the purchaser has agreed to pay the vendor for the business.
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14)
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“Settlement date” means the possession date or such other date as the parties are to perform their obligations under subclause 3.3 Where the day nominated for settlement is not a working day the settlement date shall be the last working day before the day so nominated.
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15)
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“Settlement statement” means a statement showing the purchase price, GST, (if any), less any deposit together with apportionments of all incomings and outgoings relating to the sale of business.
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16)
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“Tangible assets” means all of the plant, machinery, equipment, furniture, fittings, motor vehicles and other chattels owned by the vendor at the settlement date and used in connection with the business.
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17)
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“Working day” means any day of the week other than:
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a)
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Saturday, Sunday, Waitangi Day, Good Friday, East Monday, Anzac Day, the Sovereign’s Birthday, and Labour Day; and
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b)
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a day in the period commencing on the 24
th
day of December in any year and ending on the 5
th
day of January in the following year, both days inclusive; and
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c)
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the day observed as the anniversary of any province in which the premises are situated.
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18)
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Any act done pursuant to this agreement by a party after 5.00 pm on a working day, or on a day which is not a working day, shall be deemed to have been done at 9.00 am on the next succeeding working day.
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19)
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Where two or more acts (including service of notices) done pursuant to this agreement are deemed to have been done at the same time, they shall take effect in the order in which they would have taken effect but for subclause 1.1(18).
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20)
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Unless a contrary intention appears on the front page or elsewhere in this agreement;
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a)
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the interest rate for late settlement is double the 90 day bank bill buy rate;
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b)
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the applicable 90 day bank bill buy rate is that as advised by the vendor’s lawyer’s bank and if more than one such rate then the highest rate during the relevant period.
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c)
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a party is in default if it did not do what it has contracted to do to enable settlement to occur, regardless of the cause of such failure.
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1)
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All notices must be served in writing.
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2)
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Any notice under section 28 of the Property Law Act 2007, where the purchaser is in possession of the premises , must be served in accordance with section 353 of the Act.
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3)
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All other notice, unless otherwise required by the Property Law Act 2007, must be served by one of the following means:
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a)
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on the party as authorized by sections 354 to 361 of the Property Law Act 2007; or
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b)
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on the party or on the party’s lawyer.
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a)
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In the case of personal delivery, when received by the party or at the lawyer’s office;
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b)
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In the case of posting by ordinary mail, on the second working day following the date of posting to the address for service notified in writing by the party or to the postal address of the lawyer’s office;
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c)
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In the case of facsimile transmission, when sent to the facsimile number notified in writing by the party or to the facsimile number of the lawyer’s office;
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d)
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In the case of email, when acknowledged by the party or by the lawyer orally or by return email or otherwise in writing;
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e)
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In the case of sending by document exchange, on the second working day following the date of sending to the document exchange number of the lawyer’s office.
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1)
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If there is more than one vendor or purchaser, the liability of the vendors or of the purchasers, as the case may be, is joint and several.
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1)
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The balance of the purchase price, interest and other moneys, if any, shall be paid by the purchaser in cleared funds or otherwise satisfied as provided in this agreement (credit being given for any amount payable by the vendor under subclause 3.6 or 3.7)
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2)
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The vendor shall concurrently deliver to the purchaser.
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a)
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Where the purchaser is to have an assignment of the lease, the lease and a duly executed deed of assignment of the lease in the form described in subclause 9.6 together with the landlord’s written consent to the assignment;
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b)
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Instruments of title to the assets (if any)
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c)
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a duly executed satisfaction or release of any encumbrance or security interest over any of the assets;
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d)
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duly executed deeds of assignment or other appropriate Instruments of transfer in respect of the intangible assets, executed by the vendor and counterparties (where prior written consent to the transfer is required);
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e)
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any duly executed deed of covenant to be provided under subclause 7.2;
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f)
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where any deed is to be delivered to the purchaser under subclause 3.3(2). the vendor must comply with section 9 of the Property Law Act 2007.
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3)
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To the extent that this had not already occurred, the vendor shall deliver to the purchaser:
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a)
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the tangible assets; and
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b)
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stock in trade; and
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c)
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the business records; and
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d)
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all keys, passwords, security code or similar devices relating to the premises or the business.
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1)
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one day’s interest at the interest rate for late settlement on the portion of the purchase price paid in the last minute settlement; and
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1)
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an amount equivalent to interest at the interest rate for late settlement on the entire purchase price during the default period; or
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2)
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any losses or damages suffered by the purchaser;
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1)
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If the loss is sufficient to affect the purchaser materially in the carrying on of the business the purchaser may;
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a)
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complete the purchase at the purchase price, less a sum equal to any insurance moneys received or receivable by or on behalf of the vendor in respect of such loss; or
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b)
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complete the purchase at the purchase price if the vendor’s insurance company has agreed to reinstate the business to its pre-loss condition; or
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c)
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cancel this agreement by serving notice on the vendor whereupon the purchaser shall be entitled to the immediate return of the deposit and any other moneys paid by the purchaser to the vendor, apart from which neither party shall have right or claim against the other arising from his agreements or its cancellation,
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2)
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If the loss is insufficient to affect the purchaser materially in the carrying on the business the purchaser shall complete the purchase at the purchase price less a sum equal to the amount of the diminution in value of the business.
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1)
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shall elect whether or not to accept all or any part of such excess: and
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2)
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May choose which item of stock in trade the vendor shall retain in order to reduce the actual value to the estimated value increased by the relevant maximum percentage.
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1)
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received any notice or demand and has no knowledge of any requisition or outstanding requirement:
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a)
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from any local or government authority or other statutory body; or
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b)
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under the Resource Management Act 1991 and its amendments; or
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c)
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from the landlord of the premises; or
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d)
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from any other party,
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2)
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given any consent or waiver which adversely affect the business or the premises and which has not been disclosed in writing to the purchaser.
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1)
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properly carry on and conserve the business as a going concern and use all reasonable endeavours to maintain the turnover, maintain reasonable levels of stock in trade and preserve the goodwill of the business;
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2)
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not enter into any new contracts or arrangements or give any consents or waivers in respect of the business or the premises (other than in the ordinary course of business) without the written consent of the purchaser;
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3)
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promptly pass on to the purchaser or purchaser’s lawyer any notice, demand or requisition received by the vendor relating to the business or the premises and, if so required by the purchaser, comply with any such notice at the vendor’s own cost, prior to settlement;
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4)
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promptly notify the purchaser of any lawsuits, claims, proceedings, investigations or adverse events which may occur, be threatened, brought, asserted or commenced against the vendor involving the business or the premises in any way or which may adversely affect the business.
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1)
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The assets and the stock in trade are the unencumbered property of the vendor.
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2)
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The tangible assets are in good operational order and condition taking account of their order and condition as at the date of this agreement.
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3)
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Where the vendor has done or caused or permitted to be done on the premises any works for which a permit or building consent was required by law;
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a)
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all required permits or consents were obtained; and
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b)
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the works were completed in compliance with those permits or consents; and
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c)
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where appropriate, a code compliance certificate was issued for those works; and
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d)
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all obligations imposed under the Building Act 1991 and/or the Building Act 2004 were fully discharged.
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1)
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The vendor will pay and discharge all debts and liabilities relating to the business incurred or arising prior to the close of business on the possession date in connection with the business or in respect of any contract dealing or occurrence relating to the business and shall indemnify the purchaser from and against all claims, proceedings, expenses and costs in connection therewith.
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2)
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Any adjustments will be paid to the dates stated in the settlement statement to be supplied to the purchaser before the possession date or will be so paid immediately after the possession date and all incoming will be collected by the vendor to the dates stated in that statement.
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3)
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The vendor will at the vendor’s cost do and execute all such acts and deeds as may reasonably be required to enable the purchaser to obtain the full benefit of the business.
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4)
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The vendor will take all reasonable steps to enable the purchaser to have the use and benefit of any means of communicating with the business including but not limited to any, mobile telephone number, post office box, domain name or email address relating to the business.
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5)
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The vendor, or a suitably experienced person nominated by the vendor and acceptable to the purchaser will, during the vendor’s period of assistance stated on the front page of this agreement give the purchaser to such extent as reasonably required by the purchaser the benefit of the vendor’s knowledge and experienced in the conduct of the business.
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1)
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The landlord shall at the vendor’s cost consent in writing to the assignment to the purchaser of the vendor’s interest as tenant.
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2)
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The purchaser shall prepare, at the purchaser’s own expense, a deed of assignment of the lease.
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3)
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The deed of assignment shall be executed by the purchaser as assignee and tendered to the vendor or the vendor’s lawyer within a reasonable time before settlement.
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4)
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The vendor shall seek the landlord’s consent to the assignment of the lease and the purchaser shall provide the vendor with all reasonable assistance in this regard, including providing full and prompt responses to the landlord’s reasonable requests for information concerning the purchaser and procuring such guarantees of the proposed assignee’s obligations as the landlord may reasonably require.
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1)
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The condition shall be a condition subsequent,
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2)
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The party or parties for whose benefit the condition has been included shall do all things which may reasonably be necessary to enable the condition to be fulfilled by the date for fulfillment.
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3)
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Time for fulfillment of any condition and any extended time for fulfillment to a fixed date shall be of the essence,
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4)
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The condition shall be deemed not to be fulfilled until notice of the fulfillment has been served by one party on the other party.
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5)
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If the condition is not fulfilled by the date for fulfillment, either party may at any time before the condition is fulfilled or waived avoid this agreement by giving notice to the other, Upon avoidance of this agreement the purchaser shall be entitled to the immediate return of the deposit and any other moneys paid by the purchaser to the vendor and
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6)
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neither party shall have any right or claim against the other arising from this agreement or its termination.
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7)
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At any time before (this agreement is avoided the purchaser may waive any finance condition and either party may waive any other condition which is for the sole benefit of that party. Any waiver shall be by notice.
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1)
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If it is to be arranged with the lending institution, be on the customary terms and conditions of that institution; and
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2)
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If it is not to be arranged with a lending institution, be on such reasonable and usual terms as are normally included in securities of the same rank secured over comparable assets.
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1)
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the vendor shall deliver a copy of lease to the purchaser or the purchaser’s lawyer;
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2)
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this agreement is conditional on the purchaser’s approval of the lease; and
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3)
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the condition is for the purchaser’s sole benefit.
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1)
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On or before the twelfth working day after the date of service of the notice; or
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2)
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On the first working day after the 13
th
day of January if the period of twelve working days expire during the period commencing on the 6
th
day of January and ending on the 13
th
day of January, both days inclusive, time being of the essence, but without prejudice to any intermediate right of cancellation by either party.
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1)
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Without prejudice to any other rights or remedies available to the vendor at law or in equity
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i.
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forfeit and retain for the vendor’s own benefit the deposit paid by the purchaser, but not exceeding in all 10% of the purchase price;
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ii.
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sue the purchaser for damages.
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2)
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If the vendor is entitled to cancel this agreement the entry by the vendor into a conditional or unconditional contract for the resale of the business or any part thereof shall take effect as a cancellation of this agreements by the vendor if this agreement has not previously been cancelled and such resale shall be deemed to have occurred after cancellation.
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3)
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The damages claimable by the vendor under subclause 10.4(1)(b)(ii) shall include all damages claimable at common law or in equity and shall also include (but shall not be limited to) any loss incurred by the vendor on any bonafide resale contracted within twelve (12) months from the date by which the purchaser should have settled in compliance with the settlement notice, The amount of that loss may include:
|
a)
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interest on the unpaid portion of the purchase price at the interest rate for late settlement from the settlement date to the settlement of such resale; and
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b)
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all costs and expenses reasonably incurred in any resale or attempted resale; and
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c)
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all losses incurred by the vendor in carrying on the business from the settlement date to the settlement of such resale.
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4)
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The purchaser shall not be entitled to any of the proceeds of resale.
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1)
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sue the vendor for specific performance; or
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2)
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cancel this agreement by notice and require the vendor to repay to the purchaser any deposit and any other money paid on account of the purchase price and interest on such sum(s) at the interest rate for late settlement from the date or dates of payment by the purchaser until repayment.
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1)
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The vendor is and/or will be at settlement a registered person in respect of the supply under this agreement:
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2)
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The recipient is and/or will be at settlement a registered person;
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3)
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The recipient intends at settlement to use the property for making taxable supplies; and
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4)
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The recipient does not intend at settlement to use the property as a principal place of residence by the recipient or a person associated with the recipient under section 2A(1)(c) of the GST Act.
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1)
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Each party warrants that it is registered a person or will be so by the date of the supply;
|
2)
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Each party agrees to provide the other party by the date of the supply with proof of its registration for GST purposes;
|
3)
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The parties agree that they intend that the supply is of a taxable activity that is capable of being carried on as a going concern by the purchaser; and
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4)
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The parties agree that the supply made pursuant to this agreement is the supply of a going concern on which GST is chargeable at zero percent.
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1)
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the purchaser shall pay to the vendor the GST which is so payable in one sum on the GST date;
|
2)
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if the GST date has not been stated on the front page of this agreement the GST date shall be the possession date; and
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3)
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if any GST is not so paid to the vendor the purchaser shall pay to the vendor;
|
a)
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interest at the interest rate for late settlement on the amount of GST unpaid from the GST date until payment; and
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b)
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any default GST.
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15.0
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Agent
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16.0
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Limitation of Liability
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16.1
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If any
person enters into this agreement as trustee of a trust, then:
|
1)
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The person warrants that.
|
a)
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that person has power to enter into this agreement under the terms of the trust;;
|
b)
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that person has properly signed this agreement in accordance with the terms of the trust;
|
c)
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that person has the right to be indemnified form the assets of the trust and that right has not been lost or impaired by any action of that person including entity into this agreement; and
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d)
|
all of the persons who are trustees of the trust have approved entry into this agreement.
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2)
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If that person has no right to or interest in any assets of the trust except in that person’s capacity as a trustee of the trust, that person’s liability under this agreement will not be personal and unlimited but will be limited to the actual amount recoverable from the assets of the trust from time to time (“the limited amount”). If the right of that person to be indemnified from the trust assets has been lost, that person’s liability will become personal but limited to the extent of that part of the limited amount which cannot be recovered from any other person.
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FURTHER TERMS OF SALE
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Tangible assets refer to further terms of sale,
Intangible assets: goodwill, benefit of the lease, customer and supplier database, all intellectual property, website& domain names if any, recipes, trademarks and accounts receivable
For the purpose of this agreement the value of the lease is $100,000.00 and the remainder is good will of $300,000.00
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1
.
The vendor’s registration number (if already registered): 82834656
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|
2
. The purchaser will be so registered at settlement
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Yes/
No
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3. The purchaser intends at settlement to use the property for making taxable supplies
|
Yes/
No
|
7
. The nominee is expected by the purchaser to be so registered at settlement
|
Yes/
No
|
8. The purchaser expects the nominee at settlement to use the property for making taxable supplies
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Yes/
No
|
9. The nomiee’s details are (if known to the purchaser) as follows:
(a) Full name:
|
|
(b) Address:
|
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(C) Registration number (if already registered):
|
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10. The Purchaser expects the nominee to intend at settlement to use the property as a principal
place of residence by the nominee or a person associated with the nominee under section
2A(1)(c) of the GST Act.
(connected by blood relationship, marriage, civil union, de facto relationship or adoption).
OR
The purchaser expects the nominee at settlement to use part of the property as a principal
place of residence by the purchaser or a person associated with the purchaser under section
2A(1)(c) of the GST Act.
That part is:
(e.g. “the main farmhouse” or “the apartment above the shop”)
|
Yes/No
Yes/ No
|
PURCHASER: Concierge Technologies Inc and/or Nominee
Contact Details:
Nicholas Gerber
ngerber@conciergetechnology.net
925 297 9465
PURCHASER’S LAWYERS:
Firm:
Quigg Partners
Individual Acting:
David Quigg
Contact Details:
+64 474 0755
davidquigg@guiggpartners.com
|
LANDLORD’S LAWYERS:
Firm:
Individual Acting:
Contact Details:
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Description
|
Age
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||
VEHICLES AND MOBILE PLANT
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|||
1
|
Car, Nissan Bluebird 2003 auto saloon, Reg # GDT602, 90,000k
|
2003
|
|
1
|
Utility, Toyota 2.4D SCB manual with canopy, Reg # DYQ642, 254,000k
|
1996
|
|
1
|
Car, Ford Modeo 2 litre diesel, auto saloon, Reg # FEW591, 135,000K
|
2009
|
|
1
|
Forklift truck, Komatsu Arion EX15, battery electric, s/n 023972
|
2002
|
|
Total, Vehicles and mobile Plant
|
|||
OFFICES AND AMMENITIES
|
|||
Reception
|
|||
2
|
Chairs, guest
|
||
1
|
Framed award certificates
|
||
1
|
Reception counter
|
||
1
|
Signage
|
||
1
|
Supreme ple makers trophy
|
||
1
|
Table, 600 dia occasional
|
1999
|
|
Office Kitchen
|
|||
1
|
Coffee machine (property of others)
|
||
1
|
Electric Kettle
|
||
1
|
Microwave oven, Cascade
|
||
1
|
Refrigerator, Precision, 100 litres
|
||
1
|
Toasting oven, Cascade
|
||
CEO’s Office
|
|||
1
|
Air conditioner/heat pump, Fujitsu split system
|
||
1
|
Chair, Swivel office
|
||
4
|
Chairs, stacking
|
||
2
|
Chairs, tub, vinyl upholstery
|
||
1
|
Computer PC
|
||
1
|
Credenza, 4 door rimu with hutch
|
||
2
|
Cupboards, 2 door stationery
|
||
1
|
Desk, executive, 2 pedestal rimu
|
||
2
|
Filing cabinets, 3 drawer
|
||
2
|
Sofas, 2 seat, vinyl upholstery
|
||
1
|
Table , coffee approx 500 × 1000, wooden
|
||
1
|
Table , coffee approx 500 × 1200, glass top
|
||
1
|
Whiteboard with easel, single side
|
GM’s Office
|
|||
1
|
Filing cabinet, 2 drawer
|
||
1
|
Framed whiteboard, appro × 800 × 1200
|
|
|
1
|
Table, 1260 × 2400. wooden
|
|
|
1
|
Printer, HP mono Laserjet
|
||
6
|
Chairs, stacking
|
||
1
|
Chair, guest
|
||
2
|
Chairs, swivel office
|
|
|
1
|
Chair, swivel executive
|
|
|
1
|
Cupboard, 2 door stationery
|
||
2
|
Filing cabinets, 4 drawer
|
||
1
|
Credenza, 4 door rimu
|
||
1
|
Air conditioner/heat pump, Carrier split system
|
||
3
|
Computers PC, laptop
|
||
1
|
Advertising banner, rollup
|
||
1
|
Desk, corner
|
||
1
|
Document slide, 5 hole
|
||
1
|
Computer PC
|
||
1
|
Mobile drawer unit
|
||
Asset Valuation Ltd
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