EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
Lobike Pty Ltd
(A.C.N. 001 874 380)
Locana Pty Ltd
(A.C.N. 001 874 317)
Lofiva Pty Ltd
(A.C.N. 001 876 982)
Logela Pty Ltd
(A.C.N. 001 876 820)
Xxxxx Xxxxx XxXxxxxx
Xxxx Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx Xxxxxx
and
Xxxxx Industrial Corporation
THIS SHARE PURCHASE AGREEMENT is made on 16 DECEMBER 1995 between the
following parties:
1. LOBIKE PTY LTD (A.C.N. 001 874 380) of 00 Xxxx Xxxxxx, Xxxxxxx Xxx
Xxxxx Xxxxx in its own capacity and as trustee for The Xxxxxx Avenue
Trust ("Lobike");
2. LOCANA PTY LTD (A.C.N. 001 874 317) of 00 Xxxx Xxxxxx, Xxxxxxx Xxx
Xxxxx Xxxxx in its own capacity and as trustee for The Leumeah Road
Trust ("Locana");
3. LOFIVA PTY LTD (A.C.N. 001 876 982) of 00 Xxxx Xxxxxx, Xxxxxxx Xxx
Xxxxx Xxxxx in its own capacity and as trustee for The Sunset Place
Trust ("Lofiva");
4. LOGELA PTY LTD (A.C.N. 001 876 820) of 00 Xxxx Xxxxxx, Xxxxxxx Xxx
Xxxxx Xxxxx in its own capacity and as trustee for The Xxxxxxx Road
Trust ("Logela"),
Lobike, Logela, Lofiva and Locana together jointly and severally
referred to as "the Sellers";
5. XXXXX XXXXX XXXXXXXX of 00 Xxx Xxxxx Xxxxxx, Xxxxxxxx-Xx-Xxxxx, Xxx
Xxxxx Xxxxx ("XxXxxxxx");
6. XXXX XXXXX XXXXX of 00 Xxxxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxx
Xxxxx ("Xxxxx");
7. XXXXXXX XXXX XXXX of 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxx Xxxxx
("Moon");
8. XXXXXX XXXX XXXXXX of Unit 1303, The Connaught, 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx ("Xxxxxx"),
McIntosh, Rogan, Moon and Xxxxxx together jointly and severally
referred to as "the Guarantors"; and
9. XXXXX INDUSTRIAL CORPORATION, a company incorporated under the laws of
Michigan, of Xxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of
America ("the Buyer").
RECITALS:
A. Lobike is the owner of the Lobike Rights.
B. Locana is the owner of the Locana Rights.
C. Lofiva is the owner of the Lofiva Rights.
D. Logela is the owner of the Logela Rights.
E. Lobike agrees to sell and the Buyer agrees to buy the Lobike Rights on
the terms and conditions set out in this agreement.
F. Locana agrees to sell and the Buyer agrees to buy the Locana Rights on
the terms and conditions set out in this agreement.
G. Lofiva agrees to sell and the Buyer agrees to buy the Lofiva Rights on
the terms and conditions set out in this agreement.
H. Logela agrees to sell and the Buyer agrees to buy the Logela Rights on
the terms and conditions set out in this agreement.
I. The Guarantors agree to guarantee the obligations of the Sellers under
this agreement.
THE PARTIES AGREE in consideration of, among other things, the mutual
promises contained in this agreement:
PART 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
"ACCOUNTING STANDARDS" means the accounting standards and practices
determined under clause 1.4;
"ACCOUNTS" means the consolidated audited balance sheet of the Company
Group as at the Accounts Date and the consolidated audited profit and loss
account of the Company Group for the year ending on the Accounts Date
annexed to this agreement as annexure A;
"ACCOUNTS DATE" means 30 June 1995;
"BUSINESS" means the business of the manufacture, sale, installation and
servicing of refrigeration equipment carried on by the Company Group in
Australia;
"BUSINESS DAY" means a day on which banks are open for business in Sydney,
excluding a Saturday or a Sunday or a public holiday;
"XXXXXXX ROAD TRUST" means the trust constituted by the Xxxxxxx Road Trust
Deed;
"XXXXXXX ROAD TRUST DEED" means the Deed of Trust dated 11 April 1979
between Robcharta Nominees (NSW) Pty Limited and Xxxxxx Xxxxx Xxxxxxxx;
"CAPPED LIABILITY WARRANTIES" means the Warranties other than Warranty 9.9
and part 23 of the Warranties;
-2-
"CAPPED WARRANTY PERIOD" means the period commencing on the Completion Date
and ending 14 days after the date of the adoption by the directors of the
Company of the audited accounts of the Company for the financial year
ending 30 June 1997;
"COLLATERAL SECURITY" means any present or future Security Interest,
guarantee or other document or agreement reserved, created or entered into
by the Sellers or any other person as security for the payment of any of
the Guaranteed Moneys or for the performance of the obligations of the
Sellers under this agreement;
"COMPANY" means Austral Refrigeration Pty Ltd (A.C.N. 001 702 594);
"COMPANY GROUP" means the Company and any Subsidiary of the Company and any
one or more of them;
"COMPANY GROUP INTELLECTUAL PROPERTY RIGHTS" means any Intellectual
Property Rights the Company Group uses or needs to carry on its business
including but not limited to those listed in schedule 3;
"COMPLETION" means completion of the sale and purchase of the Rights under
parts 3 and 7;
"COMPLETION DATE" means the date on which Completion occurs under clause
7.1;
"CONFIDENTIAL INFORMATION MEMORANDUM" means the undated Confidential
Information Memorandum in respect of the Company Group issued by Hill
Young;
"DISCLOSURE LETTER" means the letter from the Sellers to the Buyer dated on
or before the date of this agreement which was delivered to the Buyer
before the signing of this agreement and which contains disclosures in
respect of the Warranties;
"DOLLARS" "A$" and "$" means the lawful currency of the Commonwealth of
Australia;
"DUTY" means any stamp, transaction or registration duty or similar charge
imposed by any Government Agency and includes, but is not limited to, any
interest, fine, penalty, charge or other amount imposed in respect of the
above but excludes any Tax;
"ENVIRONMENTAL LAW" means any law, whether statute or common law,
concerning environmental matters, and includes but is not limited to law
concerning land use, development, pollution, waste disposal, toxic and
hazardous substances, conservation of natural or cultural resources and
resource allocation including any law relating to exploration for or
development of any natural resource;
-3-
"ENVIRONMENTAL LIABILITY" means any obligation, expense, penalty or fine
under Environmental Law which would or could be imposed upon the Buyer or
any occupier of the Properties as a result of activities carried on during
the ownership or occupation of the property by the Company Group, or by the
Company Group's predecessors in title or by any previous occupier of the
Properties;
"FREEHOLD PROPERTIES" means the freehold properties at which the Business
is carried on listed in part 1 of schedule 8;
"GOVERNMENT AGENCY" means any government or governmental, semi-governmental,
administrative, fiscal, or judicial body, department,
commission, authority, tribunal, agency or entity;
"HILL YOUNG" means Hill Young & Associates Limited (A.C.N. 003 977 106);
"IMMEDIATELY AVAILABLE FUNDS" means cash or bank cheque;
"INDONESIAN JOINT VENTURE" means the Joint Venture constituted by a written
agreement between the Company and PT Porkka Indonesia;
"INTELLECTUAL PROPERTY RIGHTS" includes both in Australia and throughout
the world and for the duration of the rights:
(a) any patents, utility models, copyrights, registered or unregistered
trade marks or service marks, trade names, brand names, indications of
source or appellations of origin, eligible layout rights, plant
variety rights, registered designs and commercial names and
designations;
(b) any invention, discovery, trade secret, know-how, computer software
and confidential, scientific, technical and product information;
(c) any other rights resulting from intellectual activity in the
industrial, scientific, literary and artistic fields whether
industrial, commercial, agricultural or extractive and whether dealing
with manufactured or natural products; and
(d) any letters patent, deed of grant, certificate or document of title
for any thing referred to in paragraphs (a), (b) or (c) and any medium
in which any thing referred to in those paragraphs is stored or
embodied;
"XXXXXXXX" means Xxxxx Xxxx Xxxxxxxx of 00 Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx;
"LEUMEAH ROAD TRUST" means the trust constituted by the Leumeah Road Trust
Deed;
-4-
"LEUMEAH ROAD TRUST DEED" means the Deed of Trust dated 25 April 1979
between Robcharta Nominees (NSW) Pty Limited and Xxxxx Xxxxxxx;
"LICENSING AGREEMENTS" means the licensing and distribution agreements
between any member of the Company Group and:
(a) Xxxxx/Xxxxxx a division of the Buyer;
(b) Ardco Inc.; and
(c) Computer Process Controls Inc.;
"LOBIKE GUARANTEED MONEYS" means all debts and monetary liabilities of
Lobike or XxXxxxxx to the Buyer under or in relation to this agreement;
"LOBIKE PURCHASE PRICE" means the amount of $6,152,930;
"LOBIKE RIGHTS" means the right to subscribe for 3,031 ordinary shares of
$1.00 each in the capital of the Company, which Lobike holds on trust for
the Xxxxxx Avenue Trust;
"LOCANA GUARANTEED MONEYS" means all debts and monetary liabilities of
Locana or Xxxxx to the Buyer under or in relation to this agreement;
"LOCANA PURCHASE PRICE" means the amount of $6,154,960;
"LOCANA RIGHTS" means the right to subscribe for 3,032 ordinary shares of
$1.00 each in the capital of the Company, which Locana holds on trust for
the Leumeah Road Trust;
"LOFIVA GUARANTEED MONEYS" means all debts and monetary liabilities of
Lofiva or Moon to the Buyer under or in relation to this agreement;
"LOFIVA PURCHASE PRICE" means the amount of $6,154,960;
"LOFIVA RIGHTS" means the right to subscribe for 3,032 ordinary shares of
$1.00 each in the capital of the Company, which Lofiva holds on trust for
the Sunset Place Trust;
"LOGELA GUARANTEED MONEYS" means all debts and monetary liabilities of
Logela or Xxxxxx to the Buyer under or in relation to this agreement;
"LOGELA PURCHASE PRICE" means the amount of $6,154,960;
"LOGELA RIGHTS" means the right to subscribe for 3,032 ordinary shares of
$1.00 each in the capital of the Company, which Logela holds on trust for
the Xxxxxxx Road Trust;
-5-
"MBO PARTNERS" means MBO Partners Limited, a company incorporated under the
laws of the British Virgin Islands, as general partner for and on behalf of
The Asian MBO Fund, L.P., an exempted limited partnership under the
Exempted Limited Partnership Law of 1991 of the Cayman Islands;
"MBO SHARE PURCHASE AGREEMENT" means the Share Purchase Agreement dated on
or about the date of this agreement between:
(a) Lobike,
(b) Locana;
(c) Lofiva;
(d) Logela;
(e) XxXxxxxx;
(f) Xxxxx;
(g) Moon;
(h) Xxxxxx; and
(i) MBO,
an unexecuted copy of which is annexed to this agreement as Annexure C;
"POWER" means any right, power, authority, discretion or remedy conferred
by this agreement or any applicable law;
"PROPERTIES" means the Freehold Properties, the properties leased under the
Property Leases and any properties occupied under licence by the Company
Group;
"PROPERTY LEASES" means the leases of the real property at which the
Business is carried on listed in part 2 of schedule 8;
"PURCHASE PRICE" means the amount of $24,617,810, being the aggregate of:
(a) the Lobike Purchase Price;
(b) the Locana Purchase Price;
(c) the Lofiva Purchase Price; and
(d) the Logela Purchase Price;
-6-
"RELATED CORPORATION" means a "related body corporate" as that expression
is defined in the Corporations Law (on the basis that the term "subsidiary"
in that definition has the same meaning as in this agreement) and includes
a body corporate which is at any time after the date of this agreement a
"related body corporate" but ceases to be a "related body corporate"
because of an amendment, consolidation or replacement of the Corporations
Law;
"RESTRUCTURING" means the restructuring of the Company Group described in
Section 7 of Volume 1 of the Confidential Information Memorandum;
"RIGHTS" means:
(a) the Lobike Rights;
(b) the Locana Rights;
(c) the Lofiva Rights; and
(d) the Logela Rights;
"SECURITY INTEREST" means an interest or power:
(a) reserved in or over an interest in any asset including, but not
limited to, any retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a xxxx of sale, mortgage, charge, lien, pledge, trust or power,
by way of security for the payment of a debt or any other monetary
obligation or the performance of any other obligation and includes, but is
not limited to, any agreement to grant or create any of the above;
"SELLERS' SOLICITORS" means Xxxxxx XxXxxxxx of Xxxxx 0, 0 Xxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx;
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement to be entered
into between:
(a) Lobike,
(b) Locana;
(c) Lofiva;
(d) Logela;
(e) the Buyer;
(f) MBO;
-7-
(g) Hill Young;
(h) Xxxxxxxx;
(i) XxXxxxxx;
(j) Xxxxx;
(k) Moon;
(l) Xxxxxx; and
(m) the Company,
an unexecuted copy of which is annexed to this agreement as Annexure B;
"SUBSIDIARY" has the following meanings:
(a) the meaning given to that expression in the Corporations Law;
(b) a corporation is a Subsidiary of another corporation if that other
corporation has appointed or is in a position to appoint a director or
directors who are in a position to cast, or control the casting of,
more than one-half of the maximum number of votes that might be cast
at a meeting of the board of directors of the first-mentioned
corporation;
(c) a corporation is a Subsidiary of another corporation if at any time
after the date of this agreement it is a Subsidiary but ceases to be a
subsidiary as defined in the Corporations Law because of an amendment,
consolidation or replacement of the Corporations Law;
"SUNSET PLACE TRUST" means the trust constituted by the Sunset Place Trust
Deed;
"SUNSET PLACE TRUST DEED" means the Deed of Trust dated 11 April 1979
between Robcharta Nominees (NSW) Pty Limited and Xxxxx May Xxxxx;
"TAX" means any tax, levy, charge, impost, duty, fee, deduction, compulsory
loan or withholding, which is assessed, levied, imposed or collected by any
Government Agency and includes, but is not limited to any interest, fine,
penalty, charge, fee or any other amount imposed on, or in respect of any
of the above but excludes Duty;
"TAX LAW" means any law relating to either Tax or Duty as the context
requires;
"XXXXXX AVENUE TRUST" means the trust constituted by the Xxxxxx Avenue
Trust Deed;
-8-
"XXXXXX AVENUE TRUST DEED" means the Deed of Trust dated 11 April 1979
between Robcharta Nominees Pty (NSW) Limited and Xxxxx Xxxxx Xxxxxxx; and
"WARRANTIES" means the warranties and representations set out in schedule
1.
1.2 INTERPRETATION
In this agreement, headings and underlinings are for convenience only and
do not affect the interpretation of this agreement and, unless the context
otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(d) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body
corporate and any Government Agency;
(e) a reference to any thing (including, but not limited to, any right)
includes a part of that thing;
(f) a reference to a part, clause, party, annexure, exhibit or schedule is
a reference to a part and clause of, and a party, annexure, exhibit
and schedule to, this agreement and a reference to this agreement
includes any annexure, exhibit and schedule;
(g) a reference to a statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or
by-laws amending, consolidating or replacing it, and a reference to a
statute includes all regulations, proclamations, ordinances and by-laws
issued under that statute;
(h) a reference to a document includes all amendments or supplements to,
or replacements or novations of, that document;
(i) a reference to a party to a document includes that party's successors
and permitted assigns;
(j) no provision of this agreement will be construed adversely to a party
solely on the ground that the party was responsible for the
preparation of this agreement or that provision;
(k) a covenant or agreement on the part of two or more persons binds them
jointly and severally;
-9-
(l) a reference to an agreement other than this agreement includes an
undertaking, deed, agreement or legally enforceable arrangement or
understanding whether or not in writing;
(m) a reference to an asset includes all property of any nature,
including, but not limited to, a business, and all rights, revenues
and benefits;
(n) a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;
(o) a reference to liquidation includes official management, appointment
of an administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding-up, dissolution, assignment for the benefit of
creditors, scheme, composition or arrangement with creditors,
insolvency, bankruptcy, or any similar procedure or, where applicable,
changes in the constitution of any partnership or person, or death;
(p) a reference to a body, other than a party to this agreement
(including, without limitation, an institute, association or
authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially
succeeds to its powers or functions;
(q) a reference to "the Sellers" is a reference to Lobike, Locana, Lofiva
and Logela jointly and severally; and
(r) a reference in the Warranties that a matter is "to the Knowledge of
the Sellers" means that the matter:
(1) is to the best of the knowledge, information or belief after
making reasonable inquiries of; or
(2) ought to be known by a reasonable person in such a position as,
any or all of:
(3) Lobike;
(4) Locana;
(5) Lofiva;
(6) Logela;
-10-
(7) XxXxxxxx;
(8) Xxxxx;
(9) Moon;
(10) Xxxxxx; or
(11) Xxxxx Xxxxxx XxXxxxxx.
1.3 BUSINESS DAY
Where the day on or by which any thing is to be done is not a Business Day,
that thing must be done on or by the next following Business Day.
1.4 ACCOUNTING STANDARDS
In respect of any accounting practice relevant to this agreement, the
following accounting standards apply:
(a) the accounting standards required under the Corporations Law;
(b) if no accounting standard applies under the Corporations Law in
relation to an accounting practice, the standards acceptable to the
Australian Accounting Research Foundation, including:
(1) the Australian Accounting Concepts;
(2) the Australian Accounting Standards; and
(3) the Approved Accounting Standards; and
(c) if no accounting standard applies under clause 1.4(a) or 1.4(b), the
accounting practice agreed between the parties.
PART 2
CONDITIONS PRECEDENT FOR COMPLETION
2.1 CONDITIONS PRECEDENT
(a) FOREIGN INVESTMENT REVIEW BOARD APPROVAL: Completion will not proceed
unless:
(1) a notice in writing is issued by, or on behalf of, the Treasurer
of the Commonwealth of Australia stating that the Commonwealth
Government does not object to the parties entering into and
completing this agreement either unconditionally or on terms
acceptable to the Buyer; or
-11-
(2) the Treasurer of the Commonwealth of Australia becomes precluded
from making an order in respect of the acquisition of the Rights
under the Foreign Acquisitions and Takeovers Xxx 0000 (Cth).
(b) SHAREHOLDERS AGREEMENT: Completion will not proceed unless the Buyer
receives on the Completion Date an original of the Shareholders
Agreement executed by each of:
(1) Lobike;
(2) Locana;
(3) Lofiva;
(4) Logela;
(5) MBO;
(6) Hill Young;
(7) Xxxxxxxx;
(8) XxXxxxxx;
(9) Xxxxx;
(10) Moon;
(11) Xxxxxx; and
(12) the Company.
(c) MBO SHARE PURCHASE AGREEMENT: Completion will not proceed unless the
Buyer receives on the Completion Date an original of the MBO Share
Purchase Agreement executed by each of:
(1) Lobike;
(2) Locana;
(3) Lofiva;
(4) Logela;
(5) XxXxxxxx;
(6) Xxxxx;
(7) Moon;
-12-
(8) Xxxxxx; and
(9) MBO,
and completion under the MBO Share Purchase Agreement occurs
simultaneously with Completion.
(d) EQUITY INCENTIVE PLAN: Completion will not proceed unless the Buyer,
MBO and the Sellers agree the terms of an equity incentive plan for
senior managers employed by members of the Company Group.
(e) OTHER CONDITIONS PRECEDENT: Completion will not proceed if as at the
Completion Date:
(1) BREACH OF AGREEMENT: the Sellers have breached this agreement in
a material respect;
(2) WARRANTIES TRUE: any of the Warranties is or has become false,
misleading or incorrect in a material respect (except to the
extent disclosed in the Disclosure Letter);
(3) DIVIDENDS AND DISTRIBUTIONS: the Company Group has paid any
dividends or made any other payments or distributions of assets
since the Accounts Date other than a dividend of $800,000 by
Queensland Refrigeration Pty Ltd (A.C.N. 010 031 455) to its
members;
(4) ACQUISITION AND DISPOSAL: the Company Group has acquired or
disposed of any assets since the Accounts Date other than:
(A) in the ordinary course of business;
(B) in connection with the Restructuring; or
(C) disclosed in the Disclosure Letter;
(5) MATERIAL ADVERSE CHANGE: there has been a material adverse change
affecting:
(A) the Company Group taken as a whole or a significant part of
the Company Group; or
(B) the financial, business or trading position or prospects of
the Company Group taken as a whole or a significant part of
the Company Group,
since the Accounts Date.
-13-
(f) ARTICLES OF ASSOCIATION: Completion will not proceed unless the
Sellers, the Buyer and MBO agree a form of the Articles of Association
of the Company consistent with the provisions of the Shareholders
Agreement to be adopted by the Company on the Completion Date.
(g) PROPERTY: Completion will not proceed unless the Sellers, the Buyer
and MBO agree a form of agreement for the acquisition by the Company
from Jodune Pty Ltd (A.C.N. 001 689 309) of the properties situated at
00 Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxxx Xxxxx (being title
reference folio identifier 541/850659) and Xxx 0 xxx Xxx 0, Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxx Xxxxx (being title reference folio
identifiers 104/847635 and 105/847635) for a total purchase price of
$8,250,000 and completion of that acquisition occurs on or before
Completion.
2.2 BEST ENDEAVOURS
(a) The Buyer and Sellers must each use their best endeavours to satisfy
the conditions precedent for Completion set out in clause 2.1 and the
Buyer must lodge its application with the Foreign Investment Review
Board to acquire the Rights on or before the Business Day following
the date of this agreement.
(b) The Sellers must use their best endeavours to ensure that the Company
Group does all things necessary to ensure that the conditions
precedent set out in clause 2.1 are satisfied.
2.3 NOTICE
The Buyer and the Sellers must promptly notify the other in writing if any
condition precedent for Completion in clause 2.1 is satisfied or cannot be
satisfied.
2.4 WAIVER
The conditions precedent for Completion in clause 2.1(b), (d) and (e) may
be waived only by the Buyer.
2.5 CUT-OFF DATE
If any condition precedent for Completion set out in clause 2.1 is not the
subject of a notice under clause 2.3 from the Buyer or is not satisfied on
or before 14 February 1996 or such later date as the parties may agree,
either party may, by not less than 2 Business Days written notice to the
other party, terminate this agreement. Upon termination, this agreement
has no further effect and neither the Buyer nor the Sellers are liable to
the other except:
(a) under clause 5.1;
-14-
(b) under part 10;
(c) under part 11; and
(d) in respect of any breach of this agreement occurring before
termination.
PART 3
SALE AND PURCHASE
3.1 SALE OF RIGHTS
Subject to clause 2.1, on the Completion Date:
(a) Lobike must sell and the Buyer must buy the Lobike Rights for the
Lobike Purchase Price free of Security Interests and other third party
rights and Lobike must renounce the Lobike Rights in favour of the
Buyer;
(b) Locana must sell and the Buyer must buy the Locana Rights for the
Locana Purchase Price free of Security Interests and other third party
rights and Locana must renounce the Locana Rights in favour of the
Buyer;
(c) Lofiva must sell and the Buyer must buy the Lofiva Rights for the
Lofiva Purchase Price free of Security Interests and other third party
rights and Lofiva must renounce the Lofiva Rights in favour of the
Buyer; and
(d) Logela must sell and the Buyer must buy the Logela Rights for the
Logela Purchase Price free of Security Interests and other third party
rights and Logela must renounce the Logela Rights in favour of the
Buyer.
PART 4
PURCHASE PRICE
4.1 AMOUNT
The total price payable for the Rights is the Purchase Price.
4.2 PAYMENT
At Completion, the Buyer must pay to:
(a) Lobike the Lobike Purchase Price;
(b) Locana the Locana Purchase Price;
-15-
(c) Lofiva the Lofiva Purchase Price; and
(d) Logela the Logela Purchase Price.
PART 5
PAYMENT OF PURCHASE PRICE
5.1 PAYMENT AT COMPLETION
Subject to the Sellers' performance of their obligations under clauses 7.2
and 7.3, at Completion the Buyer must pay to:
(a) Lobike the Lobike Purchase Price in Immediately Available Funds;
(b) Locana the Locana Purchase Price in Immediately Available Funds;
(c) Lofiva the Lofiva Purchase Price in Immediately Available Funds; and
(d) Logela the Logela Purchase Price in Immediately Available Funds.
PART 6
PERIOD BEFORE COMPLETION
6.1 CARRYING ON OF BUSINESS
Between the date of this agreement and Completion the Sellers must ensure
that:
(a) the business of the Company Group is conducted in the ordinary course
of ordinary business;
(b) the Company Group does not enter into any new commitment for more than
$1,000,000 or for longer than 1 year without the prior written consent
of the Buyer, which consent must not be unreasonably withheld;
(c) the Company Group does not acquire, dispose of, or create a Security
Interest over any of its assets other than acquisitions or disposals
of stock in trade in the ordinary course of ordinary business;
(d) the Company Group does not distribute or return any capital to its
members;
(e) the Company Group does not pay any dividend to its members or pay any
management fee, or similar amount, unless the Buyer first consents in
writing;
(f) the Company Group does not issue or agree to issue any shares, options
or securities which are convertible into shares in the Company Group
other than as referred to in the Shareholders Agreement;
-16-
(g) the Company Group does not do or omit to do anything as a result of
which any of the Warranties, as qualified by the Disclosure Letter,
would not be true if given at any time before Completion; and
(h) the Company Group does not alter its Memorandum or Articles of
Association unless the Buyer first consents in writing, which consent
must not be unreasonably withheld.
6.2 ACCESS
Before the Completion Date, the Sellers must ensure that the Buyer and any
persons authorised by the Buyer, are given full access during normal
business hours on reasonable notice to inspect the assets, Properties,
books of account, records and documents of the Company Group.
PART 7
COMPLETION
7.1 DATE FOR COMPLETION
Subject to clause 2.1, Completion must take place at the office of the
Sellers' Solicitors at 12.00 midday on the day which is 5 Business Days
after satisfaction or waiver of the conditions precedent set out in clause
2.1 or any other time and date as the Buyer and Sellers agree.
7.2 DELIVERY OF DOCUMENTS
At Completion:
(a) Lobike must give to the Buyer the following documents:
(1) the unexecuted entitlement and acceptance form for the Lobike
Rights; and
(2) the renunciation form in respect of the Lobike Rights in favour
of the Buyer, executed by Lobike;
(b) Locana must give to the Buyer the following documents:
(1) the unexecuted entitlement and acceptance form for the Locana
Rights;
(2) the renunciation form in respect of the Locana Rights in favour
of the Buyer, executed by Locana;
(c) Lofiva must give to the Buyer the following documents:
(1) the unexecuted entitlement and acceptance form for the Lofiva
Rights;
-17-
(2) the renunciation form in respect of the Lofiva Rights in favour
of the Buyer, executed by Lofiva;
(d) Logela must give to the Buyer the following documents:
(1) the unexecuted entitlement and acceptance form for the Logela
Rights;
(2) the renunciation form in respect of the Logela Rights in favour
of the Buyer, executed by Logela; and
(e) the Sellers must give to the Buyer the written resignations of all
directors of the Company except Xxxxxxx Xxxx Xxxx, Xxxxx Xxxxxx
XxXxxxxx and Xxxxxxxx Xxxx Xxxxxxxx to be effective on the appointment
of the director to be appointed at the Board meeting to be convened
under clause 7.3.
7.3 BOARD MEETING
At Completion the Sellers must ensure that a meeting of the directors of
the Company is convened and conducts the following business:
(a) the acceptance of the application to be made under clause 7.4(c);
(b) the issue of 12,127 shares in the Company to the Buyer pursuant to the
application referred to in clause 7.3(a);
(c) the issue to the Buyer of a share certificate for 12,127 ordinary
shares in the Company; and
(d) the appointment of Xxxxxx X Xxxxxxx as a director of the Company.
7.4 BUYER'S OBLIGATIONS AT COMPLETION
Subject to the Sellers' performance of their obligations under clauses 7.2
and 7.3, at Completion the Buyer must:
(a) perform its obligations under clause 5.1;
(b) deliver to the Sellers the written consent to act from Xxxxxx X
Xxxxxxx as a director of the Company;
(c) exercise the rights attached to the Rights and apply to the Company
for the issue of 12,127 ordinary shares in the Company pursuant to the
Rights; and
(d) pay the amount of $12,127 to the Company, being the application money
for the shares applied for under clause 7.4(c).
-18-
7.5 CONDITIONS OF COMPLETION
(a) Completion is conditional on both the Buyer and the Sellers complying
with all of their obligations under this part 7.
(b) If either the Sellers or the Buyer fails to fully comply with its
obligations under this part 7 and the parties do not complete this
agreement then:
(1) each party must return to the other all documents delivered to it
under this part 7;
(2) each party must repay to the other all payments received by it
under this part 7;
(3) each party must do everything reasonably required by the other
party to reverse any action taken under this part 7;
without prejudice to any other rights any party may have in respect of
that failure.
PART 8
NOT USED
PART 9
WARRANTIES
9.1 GIVING OF WARRANTIES
Subject only to clear and specific qualifications made in the Disclosure
Letter, the Sellers jointly and severally give the Warranties in favour of
the Buyer as at the date of this agreement and for each day up to and
including Completion.
9.2 BUYER'S INVESTIGATION
Any investigation, whether before or after the date of this agreement, made
by or for the Buyer in respect of the Company Group does not affect either:
(a) the Warranties; or
(b) the Power of the Buyer if a warranty is untrue, incorrect or
misleading.
9.3 INDEPENDENT WARRANTIES
Each of the Warranties is to be construed independently of the others and
is not limited by reference to any other Warranty.
-19-
9.4 INDEMNITY
Subject to clause 9.6, each of the Sellers severally indemnifies the Buyer
against any claim, action, damage, loss, liability, cost, charge, expense
or outgoing which the Buyer pays, suffers, incurs or is liable for in
respect of:
(a) any matter or thing in respect of the Company Group being other than
as warranted in this agreement; and
(b) any breach by the Sellers of this agreement.
9.5 RELIANCE
The Buyer has entered into this agreement in reliance only on the
Warranties and on no other statement or representation made to the Buyer or
its agents and representatives.
9.6 LIMITATION ON CLAIMS FOR BREACH OF THE CAPPED LIABILITY WARRANTIES
Subject to clause 9.8, the Buyer's right to claim for breach of the Capped
Liability Warranties and under the indemnity in clause 9.4(a) in respect of
the Capped Liability Warranties is limited as follows:
(a) the Buyer must give written notice to the Sellers of the general
nature of the claim in question during the Capped Warranty Period;
(b) the aggregate amount claimed against the Sellers in respect of all
breaches must exceed $500,000, in which case the Buyer may recover all
amounts claimed and not just the excess over $500,000; and
(c) the maximum aggregate amount which the Buyer may recover from any of
the Sellers in respect of all claims (exclusive of interest and the
costs and expenses of making claims) is the amount of the Purchase
Price paid to that specific Seller.
9.7 BUYER'S WARRANTIES
The Buyer gives the following warranties in favour of the Sellers as at the
date of this agreement and for each day up to and including Completion:
(a) it has power and authority to enter into this agreement and perform
its obligations under this agreement;
(b) it has taken all necessary action to authorise the execution, delivery
and performance of this agreement in accordance with its terms.
(c) the execution, delivery and performance by it of this agreement
complies with:
-20-
(1) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency; and
(2) its memorandum and articles of association or other constituent
documents.
9.8 NEGATIVE COVENANTS
(a) During the Capped Warranty Period, Lobike must not:
(1) deal with, sell or otherwise part with possession of;
(2) create, permit, suffer to exist, or agree to, any Security
Interest or other third party right, other than a Security
Interest or right in favour of the Buyer over; or
(3) attempt to do anything listed in clauses 9.8(a)(1) and (2) in
respect of,
any of the 5,750 ordinary shares in the Company of which Lobike is the
registered holder after Completion without the prior written consent
of the Buyer.
(b) During the Capped Warranty Period, Locana must not:
(1) deal with, sell or otherwise part with possession of,
(2) create, permit, suffer to exist, or agree to, any Security
Interest or other third party right, other than a Security
Interest or right in favour of the Buyer over; or
(3) attempt to do anything listed in clauses 9.8(b)(1) and (2) in
respect of,
any of the 5,750 ordinary shares in the Company of which Locana is the
registered holder after Completion without the prior written consent
of the Buyer.
(c) During the Capped Warranty Period, Lofiva must not:
(1) deal with, sell or otherwise part with possession of;
(2) create, permit, suffer to exist, or agree to, any Security
Interest or other third party right, other than a Security
Interest or right in favour of the Buyer over; or
(3) attempt to do anything listed in clauses 9.8(c)(1) and (2) in
respect of,
-21-
any of the 5,750 ordinary shares in the Company of which Lofiva is the
registered holder after Completion without the prior written consent
of the Buyer.
(d) During the Capped Warranty Period, Logela must not:
(1) deal with, sell or otherwise part with possession of;
(2) create, permit, suffer to exist, or agree to, any Security
Interest or other third party right, other than a Security
Interest or right in favour of the Buyer over; or
(3) attempt to do anything listed in clauses 9.8(d)(1) and (2) in
respect of,
any of the 5,750 ordinary shares in the Company of which Logela is the
registered holder after Completion without the prior written consent
of the Buyer.
PART 10
TERMINATION AND DAMAGES
10.1 RIGHT OF BUYER TO TERMINATE
(a) If at any time up to Completion:
(1) the Sellers breach a term of this agreement in a material
respect;
(2) any Warranty is or becomes false, misleading or incorrect in a
material respect when made or regarded as made under this
agreement (except to the extent disclosed in the Disclosure
Letter); or
(3) a material adverse change occurs in:
(A) the Business;
(B) the assets of the Company Group taken as a whole or a
significant part of the Company Group; or
(C) the financial or trading position or prospects of the
Company Group taken as a whole,
since the Accounts Date which was not disclosed in the Disclosure
Letter,
then the Buyer may by giving Written notice to the Sellers before
Completion elect to terminate its obligation to buy the Rights and to
perform its other obligations under this agreement.
-22-
(b) The Buyer may exercise its right of termination under clause 10.1(a)
without affecting any of its other rights and remedies.
PART 11
CONFIDENTIALITY
11.1 LEGAL REQUIREMENTS
A party may disclose anything in respect of this agreement as required:
(a) by applicable law or any agreement binding on the party; or
(b) by any recognised stock exchange on which its shares or the shares of
any Related Corporation are listed,
but to the extent possible, it must consult with the other parties before
making the disclosure and use reasonable endeavours to agree on the form
and content of the disclosure.
11.2 DISCLOSURE TO OFFICERS AND PROFESSIONAL ADVISORS
A party may disclose anything in respect of this agreement or the terms of
the sale of the Rights to the officers and professional advisors of that
party and its Related Corporations to the extent reasonably required in the
conduct of that party's business but it must use its best endeavours to
ensure all matters disclosed are kept confidential.
11.3 FURTHER PUBLICITY
Subject to clauses 11.1 and 11.2 no party may disclose the provisions of
this agreement, the Purchase Price or other terms on which the Rights are
sold unless the other party first consented in writing.
PART 12
DUTIES, COSTS AND EXPENSES
12.1 DUTIES
(a) The Buyer must pay any Duty in respect of the execution, delivery and
performance of:
(1) this agreement; and
(2) any agreement or document entered into or signed under this
agreement.
(b) The Buyer must pay any fine, penalty or other cost in respect of a
failure to pay any Duty except to the extent that the fine, penalty or
other cost is caused by an act or default on the part of the Sellers.
-23-
(c) The Buyer indemnifies the Sellers against any amount payable under
clause 12.l (a) or clause 12.1 (b) or both.
12.2 COSTS AND EXPENSES
Subject to clause 12.1, each party must pay its own costs and expenses in
respect of the negotiation, preparation, execution, delivery and
registration of this agreement or other agreement or document described in
clause 12.1(a).
12.3 COSTS OF PERFORMANCE
Any action to be taken by the Buyer or the Sellers in performing its
obligations under this agreement must be taken at its own cost and expense
unless otherwise provided in this agreement.
PART 13
LOBIKE GUARANTEE AND INDEMNITY
13.1 GUARANTEE
XxXxxxxx unconditionally and irrevocably guarantees to the Buyer:
(a) the payment of the Lobike Guaranteed Moneys; and
(b) the performance of Lobike's obligations under this agreement.
13.2 PAYMENT
If the Lobike Guaranteed Moneys are not paid when due, XxXxxxxx must
immediately on demand from the Buyer pay to the Buyer the Lobike Guaranteed
Moneys in the same manner and currency as the Lobike Guaranteed Moneys are
required to be paid.
13.3 PERFORMANCE
If Lobike fails to perform its obligations under this agreement when they
are due, XxXxxxxx must immediately on demand from the Buyer cause Lobike to
perform its obligations under this agreement.
13.4 INDEMNITY
(a) If any of the Lobike Guaranteed Moneys (or amounts which would have
been Lobike Guaranteed Moneys had they not been irrecoverable) are:
(1) irrecoverable from Lobike; and
(2) not recoverable by the Buyer from XxXxxxxx on the basis of a
guarantee,
-24-
XxXxxxxx as a separate and principal obligation:
(3) indemnifies the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Buyer in relation to the non-payment of
those amounts; and
(4) must pay to the Buyer an amount equal to those amounts.
(b) XxXxxxxx indemnifies the Buyer against any claim, action, damage,
loss, liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Buyer in relation
to:
(1) the failure of Lobike to perform its obligations under this
agreement; or
(2) the failure of XxXxxxxx to cause Lobike to perform its
obligations under this agreement.
13.5 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 13 applies:
(1) to the present and future amount of the Lobike Guaranteed Moneys
and the present and future obligations of Lobike under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the consent of XxXxxxxx.
(b) The obligations of XxXxxxxx under this part 13 extend to any increase
in the Lobike Guaranteed Moneys and any change in the obligations of
Lobike as a result of any amendment, supplement, renewal or
replacement of any agreement to which Lobike, XxXxxxxx and the Buyer
are a party.
(c) This part 13 is not affected nor are the obligations of XxXxxxxx under
this agreement released or discharged or otherwise affected by
anything which but for this provision might have that effect.
13.6 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting the Lobike Guaranteed Moneys or any obligation of Lobike
under this agreement is:
(1) void, voidable or unenforceable in whole or in part; or
-25-
(2) is claimed to be void, voidable or unenforceable and that claim
is upheld, conceded or compromised in whole or in part,
the liability of XxXxxxxx under this part 13 and any Power is the same
as if:
(3) that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any
thing referred to in clause 13.6(a)(3),
had not been made and XxXxxxxx must immediately take all action and
sign all documents necessary or required by the Buyer to restore to
the Buyer this part 13 and any Security Interest held by the Buyer
immediately before the payment, conveyance, transfer or transaction.
13.7 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 13 is:
(1) a principal obligation and is not to be treated as ancillary or
collateral to any other right or obligation; and
(2) independent of and not in substitution for or affected by any
other Collateral Security which the Buyer may hold in respect of
the Lobike Guaranteed Moneys or the obligations of Lobike under
this agreement or any other person.
(b) This part 13 is enforceable against XxXxxxxx:
(1) without first having recourse to any Collateral Security; and
(2) whether or not the Buyer has:
(A) made demand upon Lobike; or
(B) given notice to Lobike or any other person in respect of any
thing; or
(C) taken any other steps against Lobike or any other person.
13.8 NO COMPETITION
(a) Subject to clause 13.8(b), until the Lobike Guaranteed Moneys have
been fully paid, until the obligations of Lobike under this agreement
have been fully performed and until this part 13 has been finally
discharged, XxXxxxxx must not, either directly or indirectly prove in,
claim or receive the benefit of any distribution, dividend or payment
arising out of or relating to the liquidation of Lobike.
-26-
(b) If required by the Buyer, XxXxxxxx must prove in any liquidation of
Lobike for all amounts owed to XxXxxxxx.
(c) All amounts recovered by XxXxxxxx from any liquidation or under any
Security Interest from Lobike must be received and held in trust by
XxXxxxxx for the Buyer to the extent of the unsatisfied liability of
XxXxxxxx under this part 13.
13.9 CONTINUING GUARANTEE AND INDEMNITY
This part 13 is a continuing obligation of XxXxxxxx, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) all the Lobike Guaranteed Moneys have been paid in full;
(d) the obligations of Lobike under this agreement have been performed;
and
(e) this part 13 has been finally discharged by the Buyer.
PART 14
LOCANA GUARANTEE AND INDEMNITY
14.1 GUARANTEE
Xxxxx unconditionally and irrevocably guarantees to the Buyer:
(a) the payment of the Locana Guaranteed Moneys; and
(b) the performance of Locana's obligations under this agreement.
14.2 PAYMENT
If the Locana Guaranteed Moneys are not paid when due, Xxxxx must
immediately on demand from the Buyer pay to the Buyer the Locana Guaranteed
Moneys in the same manner and currency as the Locana Guaranteed Moneys are
required to be paid.
14.3 PERFORMANCE
If Locana fails to perform its obligations under this agreement when they
are due, Xxxxx must immediately on demand from the Buyer cause Locana to
perform its obligations under this agreement.
-27-
14.4 INDEMNITY
(a) If any of the Locana Guaranteed Moneys (or amounts which would have
been Locana Guaranteed Moneys had they not been irrecoverable) are:
(1) irrecoverable from Locana; and
(2) not recoverable by the Buyer from Xxxxx on the basis of a
guarantee,
Xxxxx as a separate and principal obligation:
(3) indemnifies the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Buyer in relation to the non-payment of
those amounts; and
(4) must pay to the Buyer an amount equal to those amounts.
(b) Xxxxx indemnifies the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by the Buyer in relation
to:
(1) the failure of Locana to perform its obligations under this
agreement; or
(2) the failure of Xxxxx to cause Locana to perform its obligations
under this agreement.
14.5 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 14 applies:
(1) to the present and future amount of the Locana Guaranteed Moneys
and the present and future obligations of Locana under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the consent of Xxxxx.
(b) The obligations of Xxxxx under this part 14 extend to any increase in
the Locana Guaranteed Moneys and any change in the obligations of
Locana as a result of any amendment, supplement, renewal or
replacement of any agreement to which Locana, Xxxxx and the Buyer are
a party.
(c) This part 14 is not affected nor are the obligations of Xxxxx under
this agreement released or discharged or otherwise affected by
anything which but for this provision might have that effect.
-28-
14.6 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting the Locana Guaranteed Moneys or any obligation of Locana
under this agreement is:
(1) void, voidable or unenforceable in whole or in part; or
(2) is claimed to be void, voidable or unenforceable and that claim
is upheld, conceded or compromised in whole or in part,
the liability of Xxxxx under this part 14 and any Power is the same as
if:
(3) that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any
thing referred to in clause 14.6(a)(3),
had not been made and Xxxxx must immediately take all action and sign
all documents necessary or required by the Buyer to restore to the
Buyer this part 14 and any Security Interest held by the Buyer
immediately before the payment, conveyance, transfer or transaction.
14.7 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 14 is:
(1) a principal obligation and is not to be treated as ancillary or
collateral to any other right or obligation; and
(2) independent of and not in substitution for or affected by any
other Collateral Security which the Buyer may hold in respect of
the Locana Guaranteed Moneys or the obligations of Locana under
this agreement or any other person.
(b) This part 14 is enforceable against Xxxxx:
(1) without first having recourse to any Collateral Security; and
(2) whether or not the Buyer has:
(A) made demand upon Locana; or
(B) given notice to Locana or any other person in respect of any
thing; or
(C) taken any other steps against Locana or any other person.
-29-
14.8 NO COMPETITION
(a) Subject to clause 14.8(b), until the Locana Guaranteed Moneys have
been fully paid, until the obligations of Locana under this agreement
have been fully performed and until this part 14 has been finally
discharged, Xxxxx must not, either directly or indirectly prove in,
claim or receive the benefit of any distribution, dividend or payment
arising out of or relating to the liquidation of Locana.
(b) If required by the Buyer, Xxxxx must prove in any liquidation of
Locana for all amounts owed to Xxxxx.
(c) All amounts recovered by Xxxxx from any liquidation or under any
Security Interest from Locana must be received and held in trust by
Xxxxx for the Buyer to the extent of the unsatisfied liability of
Xxxxx under this part 14.
14.9 CONTINUING GUARANTEE AND INDEMNITY
This part 14 is a continuing obligation of Xxxxx, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) all the Locana Guaranteed Moneys have been paid in full;
(d) the obligations of Locana under this agreement have been performed;
and
(e) this part 14 has been finally discharged by the Buyer.
PART 15
LOFIVA GUARANTEE AND INDEMNITY
15.1 GUARANTEE
Moon unconditionally and irrevocably guarantees to the Buyer:
(a) the payment of the Lofiva Guaranteed Moneys; and
(b) the performance of Lofiva's obligations under this agreement.
-30-
15.2 PAYMENT
If the Lofiva Guaranteed Moneys are not paid when due, Moon must
immediately on demand from the Buyer pay to the Buyer the Lofiva Guaranteed
Moneys in the same manner and currency as the Lofiva Guaranteed Moneys are
required to be paid.
15.3 PERFORMANCE
If Lofiva fails to perform its obligations under this agreement when they
are due, Moon must immediately on demand from the Buyer cause Lofiva to
perform its obligations under this agreement.
15.4 INDEMNITY
(a) If any of the Lofiva Guaranteed Moneys (or amounts which would have
been Lofiva Guaranteed Moneys had they not been irrecoverable) are:
(1) irrecoverable from Lofiva; and
(2) not recoverable by the Buyer from Moon on the basis of a
guarantee,
Moon as a separate and principal obligation:
(3) indemnifies the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Buyer in relation to the non-payment of
those amounts; and
(4) must pay to the Buyer an amount equal to those amounts.
(b) Moon indemnifies the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by the Buyer in relation
to:
(1) the failure of Lofiva to perform its obligations under this
agreement; or
(2) the failure of Moon to cause Lofiva to perform its obligations
under this agreement.
15.5 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 15 applies:
(1) to the present and future amount of the Lofiva Guaranteed Moneys
and the present and future obligations of Lofiva under this
agreement; and
-31-
(2) to this agreement, as amended, supplemented, renewed or replaced
with the consent of Moon.
(b) The obligations of Moon under this part 15 extend to any increase in
the Lofiva Guaranteed Moneys and any change in the obligations of
Lofiva as a result of any amendment, supplement, renewal or
replacement of any agreement to which Lofiva, Moon and the Buyer are a
party.
(c) This part 15 is not affected nor are the obligations of Moon under
this agreement released or discharged or otherwise affected by
anything which but for this provision might have that effect.
15.6 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting the Lofiva Guaranteed Moneys or any obligation of Lofiva
under this agreement is:
(1) void, voidable or unenforceable in whole or in part; or
(2) is claimed to be void, voidable or unenforceable and that claim
is upheld, conceded or compromised in whole or in part,
the liability of Moon under this part 15 and any Power is the same as
if:
(3) that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any
thing referred to in clause 15.6(a)(3),
had not been made and Moon must immediately take all action and sign
all documents necessary or required by the Buyer to restore to the
Buyer this part 15 and any Security Interest held by the Buyer
immediately before the payment, conveyance, transfer or transaction.
15.7 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 15 is:
(1) a principal obligation and is not to be treated as ancillary or
collateral to any other right or obligation; and
(2) independent of and not in substitution for or affected by any
other Collateral Security which the Buyer may hold in respect of
the Lofiva Guaranteed Moneys or the obligations of Lofiva under
this agreement or any other person.
-32-
(b) This part 15 is enforceable against Moon:
(1) without first having recourse to any Collateral Security; and
(2) whether or not the Buyer has:
(A) made demand upon Lofiva; or
(B) given notice to Lofiva or any other person in respect of any
thing; or
(C) taken any other steps against Lofiva or any other person.
15.8 NO COMPETITION
(a) Subject to clause 15.8(b), until the Lofiva Guaranteed Moneys have
been fully paid, until the obligations of Lofiva under this agreement
have been fully performed and until this part 15 has been finally
discharged, Moon must not, either directly or indirectly prove in,
claim or receive the benefit of any distribution, dividend or payment
arising out of or relating to the liquidation of Lofiva.
(b) If required by the Buyer, Moon must prove in any liquidation of Lofiva
for all amounts owed to Moon.
(c) All amounts recovered by Moon from any liquidation or under any
Security Interest from Lofiva must be received and held in trust by
Moon for the Buyer to the extent of the unsatisfied liability of Moon
under this part 15.
15.9 CONTINUING GUARANTEE AND INDEMNITY
This part 15 is a continuing obligation of Moon, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) all the Lofiva Guaranteed Moneys have been paid in full;
(d) the obligations of Lofiva under this agreement have been performed;
and
(e) this part 15 has been finally discharged by the Buyer.
-33-
PART 16
LOGELA GUARANTEE AND INDEMNITY
16.1 GUARANTEE
Xxxxxx unconditionally and irrevocably guarantees to the Buyer:
(a) the payment of the Logela Guaranteed Moneys; and
(b) the performance of Logela's obligations under this agreement.
16.2 PAYMENT
If the Logela Guaranteed Moneys are not paid when due, Xxxxxx must
immediately on demand from the Buyer pay to the Buyer the Logela Guaranteed
Moneys in the same manner and currency as the Logela Guaranteed Moneys are
required to be paid.
16.3 PERFORMANCE
If Logela fails to perform its obligations under this agreement when they
are due, Xxxxxx must immediately on demand from the Buyer cause Logela to
perform its obligations under this agreement.
16.4 INDEMNITY
(a) If any of the Logela Guaranteed Moneys (or amounts which would have
been Logela Guaranteed Moneys had they not been irrecoverable) are:
(1) irrecoverable from Logela; and
(2) not recoverable by the Buyer from Xxxxxx on the basis of a
guarantee,
Xxxxxx as a separate and principal obligation:
(3) indemnities the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Buyer in relation to the non-payment of
those amounts; and
(4) must pay to the Buyer an amount equal to those amounts.
(b) Xxxxxx indeninifies the Buyer against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by the Buyer in relation
to:
(1) the failure of Logela to perform its obligations under this
agreement; or
-34-
(2) the failure of Xxxxxx to cause Logela to perform its obligations
under this agreement.
16.5 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 16 applies:
(1) to the present and future amount of the Logela Guaranteed Moneys
and the present and future obligations of Logela under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the consent of Xxxxxx.
(b) The obligations of Xxxxxx under this part 16 extend to any increase in
the Logela Guaranteed Moneys and any change in the obligations of
Logela as a result of any amendment, supplement, renewal or
replacement of any agreement to which Logela, Xxxxxx and the Buyer are
a party.
(c) This part 16 is not affected nor are the obligations of Xxxxxx under
this agreement released or discharged or otherwise affected by
anything which but for this provision might have that effect.
16.6 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting the Logela Guaranteed Moneys or any obligation of Logela
under this agreement is:
(1) void, voidable or unenforceable in whole or in part; or
(2) is claimed to be void, voidable or unenforceable and that claim
is upheld, conceded or compromised in whole or in part,
the liability of Xxxxxx under this part 16 and any Power is the same
as if:
(3) that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any
thing referred to in clause 16.6(a)(3),
had not been made and Xxxxxx must immediately take all action and sign
all documents necessary or required by the Buyer to restore to the
Buyer this part 16 and any Security Interest held by the Buyer
immediately before the payment, conveyance, transfer or transaction.
-35-
16.7 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 16 is:
(1) a principal obligation and is not to be treated as ancillary or
collateral to any other right or obligation; and
(2) independent of and not in substitution for or affected by any
other Collateral Security which the Buyer may hold in respect of
the Logela Guaranteed Moneys or the obligations of Logela under
this agreement or any other person.
(b) This part 16 is enforceable against Xxxxxx:
(1) without first having recourse to any Collateral Security; and
(2) whether or not the Buyer has:
(A) made demand upon Logela; or
(B) given notice to Logela or any other person in respect of any
thing; or
(C) taken any other steps against Logela or any other person.
16.8 NO COMPETITION
(a) Subject to clause 16.8(b), until the Logela Guaranteed Moneys have
been fully paid, until the obligations of Logela under this agreement
have been fully performed and until this part 16 has been finally
discharged, Xxxxxx must not, either directly or indirectly prove in,
claim or receive the benefit of any distribution, dividend or payment
arising out of or relating to the liquidation of Logela.
(b) If required by the Buyer, Xxxxxx must prove in any liquidation of
Logela for all amounts owed to Xxxxxx.
(c) All amounts recovered by Xxxxxx from any liquidation or under any
Security Interest from Logela must be received and held in trust by
Xxxxxx for the Buyer to the extent of the unsatisfied liability of
Xxxxxx under this part 16.
16.9 CONTINUING GUARANTEE AND INDEMNITY
This part 16 is a continuing obligation of Xxxxxx, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
-36-
and remains in full force and effect until:
(c) all the Logela Guaranteed Moneys have been paid in full;
(d) the obligations of Logela under this agreement have been performed;
and
(e) this part 16 has been finally discharged by the Buyer.
PART 17
GENERAL
17.1 NOTICES
(a) Any notice or other communication including, but not limited to, any
request, demand, consent or approval, to or by a party to this
agreement:
(1) must be in legible writing and in English addressed as shown
below:
(A) if to Lobike:
Address: 00 Xxx Xxxxx Xxxxxx
Xxxxxxxx-Xx-Xxxxx XXX 0000
Attention: Mr Xxxxx XxXxxxxx;
(B) if to Locana:
Address: 00 Xxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx XXX 0000
Attention: Mr Xxxx Xxxxx;
(C) if to Lofiva:
Address: X.X. Xxx 00
Xxxxxxxxxx XXX 0000
Attention: Xx Xxxxxxx Xxxx;
(D) if to Logela:
Address: Unit 1303
The Connaught
000 Xxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Mr Xxxxxx Xxxxxx;
-37-
(E) if to XxXxxxxx:
Address: 00 Xxx Xxxxx Xxxxxx
Xxxxxxxx-Xx-Xxxxx XXX 0000;
(F) if to Xxxxx:
Address: 00 Xxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx XXX 0000;
(G) if to Moon:
Address: X.X. Xxx 00
Xxxxxxxxxx XXX 0000;
(H) if to Xxxxxx:
Address: Xxxx 0000
Xxx Xxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxx XXX 0000; and
(I) if to the Buyer:
Address: One Madison Avenue
Cadillac, Michigan, USA
Attention: Mr Xxxxx Xxxxxx/Xx Xxxxx Xxxxxx
Facsimile: 0011 1 616 775 3950,
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an officer or
under the common seal of the sender;
(3) is regarded as being given by the sender and received by the
addressee:
(A) if by delivery in person, when delivered to the addressee;
(B) if by post, 5 Business Days from and including the date of
postage; or
(C) if by facsimile transmission, whether or not legibly
received, when received by the addressee,
but if the delivery or receipt is on a day which is not a
Business Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am on the following Business Day;
and
-38-
(4) can be relied upon by the addressee and the addressee is not
liable to any other person for any consequences of that reliance
if the addressee believes it to be genuine, correct and
authorised by the sender.
(b) A facsimile transmission is regarded as legible unless the addressee
telephones the sender within 2 hours after the transmission is
received or regarded as received under clause 17.1(a)(3) and informs
the sender that it is not legible.
(c) In this clause 17.1, reference to an addressee includes a reference to
an addressee's officers, agents or employees.
(d) Notwithstanding any other paragraph of this clause 17.1, a notice will
be deemed to be given by or to the Sellers if it is given by or to, as
the case may be, Moon at the address for service for Moon specified in
clause 17.1(a)(1)(G).
17.2 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) Each party irrevocably submits to the exclusive jurisdiction of the
courts of New South Wales.
(c) Each party irrevocably waives any objection to the venue of any legal
process in New South Wales on the basis that the process has been
brought in an inconvenient forum.
17.3 PROHIBITION OR ENFORCEABILITY
(a) Any provision of, or the application of any provision of, this
agreement which is prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of this
agreement, which is void, illegal or unenforceable in any jurisdiction
does not affect the validity, legality or enforceability of that
provision in any other jurisdiction or of the remaining provisions of
this agreement in that or any other jurisdiction.
(c) The application of this clause 17.3 is not limited by any other
provision of this agreement in relation to severability, prohibition
or enforceability.
17.4 WAIVERS
(a) A waiver, forbearance, abandonment, election or estoppel of, or
affecting:
-39-
(1) a term of this agreement (including this clause 17.4);
(2) a right, power, authority, discretion or remedy under this
agreement;
(3) a right, power, authority, discretion or remedy created or
arising on a breach of or default under this agreement; or
(4) the exercise of a right, power, authority, discretion or remedy
referred to in either paragraph (2) or (3),
must be in writing, or, in the case of estoppel, must be based on, a
written statement signed by the party against whom the waiver,
abandonment, election, forbearance or estoppel is claimed.
(b) A failure or delay in the exercise, or a partial exercise, of a right,
power, authority, discretion or remedy referred to in clause
17.4(a)(2) or (3) is not regarded as either a waiver, forbearance,
abandonment or election or the basis of an estoppel, of or affecting
any thing referred to in clause 17.4(a)(1), (2), (3) or (4).
17.5 VARIATION
A variation of any term of this agreement must be in writing and signed by
the parties.
17.6 CUMULATIVE RIGHTS
The powers of a party under this agreement do not exclude any other power.
17.7 NON-MERGER AND SURVIVAL OF WARRANTIES
(a) Neither the Warranties nor any other provision of this agreement which
necessarily survives Completion merges on Completion.
(b) The Warranties survive Completion of this agreement.
17.8 CONTINUING INDEMNITIES AND SURVIVAL OF INDEMNITIES
(a) Each indemnity of the Sellers contained in this agreement is a
continuing obligation of the Sellers despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until all money owing,
contingently or otherwise, under any indemnity has been paid in full.
(b) Each indemnity of the Sellers contained in this agreement:
-40-
(1) is an additional, separate and independent obligation of the
Sellers and no one indemnity limits the generality of any other
indemnity; and
(2) survives the termination of this agreement.
17.9 FURTHER ASSURANCES
Each party must do all things necessary to give full effect to this
agreement and the transactions contemplated by this agreement.
17.10 SPECIFIC PERFORMANCE
The Sellers acknowledge that monetary damages alone would not be adequate
compensation to the Buyer for the Sellers' breach of their obligations
under this agreement and that accordingly specific performance of those
obligations is an appropriate remedy.
17.11 ENTIRE AGREEMENT
(a) This agreement embodies the entire agreement between the parties with
respect to the subject matter of this agreement and supersedes any
prior negotiation, arrangement, understanding or agreement with
respect to the subject matter or any term of this agreement.
(b) Any statement, representation, term, warranty, condition, promise or
undertaking made, given or agreed to in any prior negotiation,
arrangement, understanding or agreement, has no effect except to the
extent expressly set out or incorporated by reference in this
agreement.
17.12 THIRD PARTY RIGHTS
No person (including, but not limited to, an Employee) other than the Buyer
and the Sellers has or is intended to have any right, power or remedy or
derives or is intended to derive any benefit under this agreement.
17.13 COUNTERPARTS
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this agreement by signing any counterpart.
-41-
SCHEDULE 1
WARRANTIES
(Clause 1.1)
PART 1 TITLE AND AUTHORITY
1.1 LOBIKE AND THE XXXXXX AVENUE TRUST
(a) Lobike is the sole trustee of the Xxxxxx Avenue Trust and enters into
this agreement as trustee of the Xxxxxx Avenue Trust pursuant to its
powers under the Xxxxxx Avenue Trust Deed.
(b) Lobike has power and authority including, without limitation, under
the Xxxxxx Avenue Trust Deed to enter into this agreement and perform
its obligations under this agreement including, without limitation,
selling and transferring the Lobike Rights.
(c) Lobike has taken all necessary action to authorise the execution,
delivery and performance of this agreement in accordance with its
terms.
(d) The execution, delivery and performance by Lobike of this agreement
complies with:
(1) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency;
(2) the memorandum and articles of association or other constituent
documents of Lobike; and
(3) the Xxxxxx Avenue Trust Deed.
(e) This agreement is entered into as part of the due and proper
administration of the Xxxxxx Avenue Trust and is for the benefit of
the beneficiaries of the Xxxxxx Avenue Trust.
(f) There has been no resolution or direction to terminate the Xxxxxx
Avenue Trust.
(g) There has been no resolution or direction to remove Lobike as trustee
of the Xxxxxx Avenue Trust.
(h) Lobike holds the Lobike Rights on trust for the Xxxxxx Avenue Trust
and the Lobike Rights are free of all Security Interests and other
third party interests or rights.
(i) Lobike is able to sell and transfer the Lobike Rights without the
consent of any other person and free of any pre-emptive rights or
rights of first refusal.
-42-
1.2 LOCANA AND THE LEUMEAH ROAD TRUST
(a) Locana is the sole trustee of the Leumeah Road Trust and enters into
this agreement as trustee of the Leumeah Road Trust pursuant to its
powers under the Leumeah Road Trust Deed.
(b) Locana has power and authority including, without limitation, under
the Leumeah Road Trust Deed to enter into this agreement and perform
its obligations under this agreement including, without limitation,
selling and transferring the Locana Rights.
(c) Locana has taken all necessary action to authorise the execution,
delivery and performance of this agreement in accordance with its
terms.
(d) The execution, delivery and performance by Locana of this agreement
complies with:
(1) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency;
(2) the memorandum and articles of association or other constituent
documents of Locana; and
(3) the Leumeah Road Trust Deed.
(e) This agreement is entered into as part of the due and proper
administration of the Leumeah Road Trust and is for the benefit of the
beneficiaries of the Leumeah Road Trust.
(f) There has been no resolution or direction to terminate the Leumeah
Road Trust.
(g) There has been no resolution or direction to remove Locana as trustee
of the Leumeah Road Trust.
(h) Locana holds the Locana Rights on trust for the Leumeah Road Trust and
the Locana Rights are free of all Security Interests and other third
party interests or rights.
(i) Locana is able to sell and transfer the Locana Rights without the
consent of any other person and free of any pre-emptive rights or
rights of first refusal.
1.3 LOFIVA AND THE SUNSET PLACE TRUST
(a) Lofiva is the sole trustee of the Sunset Place Trust and enters into
this agreement as trustee of the Sunset Place Trust pursuant to its
powers under the Sunset Place Trust Deed.
-43-
(b) Lofiva has power and authority including, without limitation, under
the Sunset Place Trust Deed to enter into this agreement and perform
its obligations under this agreement including, without limitation,
selling and transferring the Lofiva Rights.
(c) Lofiva has taken all necessary action to authorise the execution,
delivery and performance of this agreement in accordance with its
terms.
(d) The execution, delivery and performance by Lofiva of this agreement
complies with:
(1) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency;
(2) the memorandum and articles of association or other constituent
documents of Lofiva; and
(3) the Sunset Place Trust Deed.
(e) This agreement is entered into as part of the due and proper
administration of the Sunset Place Trust and is for the benefit of the
beneficiaries of the Sunset Place Trust.
(f) There has been no resolution or direction to terminate the Sunset
Place Trust.
(g) There has been no resolution or direction to remove Lofiva as trustee
of the Sunset Place Trust.
(h) Lofiva holds the Lofiva Rights on trust for the Sunset Place Trust and
the Lofiva Rights are free of all Security Interests and other third
party interests or rights.
(i) Lofiva is able to sell and transfer the Lofiva Rights without the
consent of any other person and free of any pre-emptive rights or
rights of first refusal.
1.4 LOGELA AND THE XXXXXXX ROAD TRUST
(a) Logela is the sole trustee of the Xxxxxxx Road Trust and enters into
this agreement as trustee of the Xxxxxxx Road Trust pursuant to its
powers under the Xxxxxxx Road Trust Deed.
(b) Logela has power and authority including, without limitation, under
the Xxxxxxx Road Trust Deed to enter into this agreement and perform
its obligations under this agreement including, without limitation,
selling and transferring the Logela Rights.
-44-
(c) Logela has taken all necessary action to authorise the execution,
delivery and performance of this agreement in accordance with its
terms.
(d) The execution, delivery and performance by Logela of this agreement
complies with:
(1) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency;
(2) the memorandum and articles of association or other constituent
documents of Logela; and
(3) the Xxxxxxx Road Trust Deed.
(e) This agreement is entered into as part of the due and proper
administration of the Xxxxxxx Road Trust and is for the benefit of the
beneficiaries of the Xxxxxxx Road Trust.
(f) There has been no resolution or direction to terminate the Xxxxxxx
Road Trust.
(g) There has been no resolution or direction to remove Logela as trustee
of the Xxxxxxx Road Trust.
(h) Logela holds the Logela Rights on trust for the Xxxxxxx Road Trust and
the Logela Rights are free of all Security Interests and other third
party interests or rights.
(i) Logela is able to sell and transfer the Logela Rights without the
consent of any other person and free of any pre-emptive rights or
rights of first refusal.
PART 2 SHARES AND CAPITAL
2.1 AUTHORISED CAPITAL
The authorised capital of the Company is $50,000,000 divided into
50,000,000 ordinary shares of $1.00 each.
2.2 ISSUED CAPITAL
The total number of issued shares in the capital of the Company is 2,504
ordinary shares.
2.3 ISSUE OF OTHER SECURITIES
The Company is not under any obligation to issue or allot, and has not
granted any person the right to call for the issue or allotment, of any
shares or other securities of the Company at any time.
-45-
2.4 RIGHTS
The copies of:
(a) the Notice of Meeting of the Directors of the Company dated 28
November 1995;
(b) the Resolution of the Directors of the Company dated 28 November 1995;
and
(c) the Minute of Agreement under section 255 of the Corporations Law
dated 28 November 1995,
in relation to the issue of the Rights by the Company are accurate,
complete and not misleading.
PART 3 COMPANY GROUP
3.1 CORPORATE EXISTENCE
The Company:
(a) is a proprietary company;
(b) has the power to own its assets and carry on its business as it is now
being conducted;
(c) is not registered and is not required to be registered in any place as
a recognised foreign company; and
(d) does not carry on business in any place other than Australia.
3.2 COMPLIANCE WITH CONSTITUENT DOCUMENTS
The business affairs of the Company Group have been conducted in accordance
with the respective Memoranda and Articles of Association of the members of
the Company Group.
3.3 COMPANY GROUP
The corporate structure of the Company Group is set out in schedule 7.
3.4 COMPANY GROUP SECURITIES
Schedule 7 sets out, in the respect of each member of the Company Group
except the Company:
(a) its authorised capital;
(b) the total number of issued shares in its capital; and
-46-
(c) the registered holders of the issued shares.
3.5 ISSUE OF OTHER SECURITIES
No member of the Company Group is under any unfulfilled obligation to issue
or allot, and has not granted any person a right which remains unexercised
to call for the issue or allotment, of any shares or other securities of
that member of the Company Group at any time.
PART 4 ACCURACY OF INFORMATION
4.1 INFORMATION ACCURATE
The written information given by or on behalf of the Sellers or their
advisers to the Buyer or its advisers in respect of the Company Group and
the sale of the Rights, copies of which is exhibited to this agreement at
the time of execution and signed by the parties for purpose of
identification, is in all material respects accurate and not misleading.
4.2 DISCLOSURE LETTER ACCURATE
The information in the Disclosure Letter and the schedules is in all
material respects accurate and not misleading.
4.3 CONFIDENTIAL INFORMATION MEMORANDUM
(a) With the exception of the projected financial information contained in
Section 10 of Volume 1 of the Confidential Information Memorandum, the
information contained in Volume 1 of the Confidential Information
Memorandum is true and correct in all material respects.
(b) The historical financial information contained in Volume 2 of the
Confidential Information Memorandum is true and correct in all
material respects.
(c) The projected financial information contained in Section 10 of Volume
1 of the Confidential Information Memorandum and the projected
financial information contained in Volume 2 of the Confidential
Information Memorandum represent reasonable forecasts to the Knowledge
of the Sellers.
PART 5 THE ACCOUNTS
5.1 BASIS OF PREPARATION
The Accounts:
(a) have been prepared in accordance with the Accounting Standards;
-47-
(b) show a true and fair view of the financial position and the assets and
liabilities of the Company Group at the Accounts Date and of the
income, expenses and results of the operations of the Company Group
for the financial period ended on the Accounts Date;
(c) are not affected by any unusual or non-recurring item;
(d) take account of all gains and losses, whether realised or unrealised
arising from foreign currency transactions;
(e) include all reserves and provisions for taxation that are necessary to
cover all Tax liabilities of the Company Group in respect of any
period up to the Accounts Date;
(f) include all liabilities of the Company Group at the Accounts Date; and
(g) set out all contingent liabilities of the Company Group at the
Accounts Date.
PART 6 POSITION SINCE ACCOUNTS DATE
6.1 POSITION SINCE ACCOUNTS DATE
Since the Accounts Date:
(a) the Business has been conducted in the ordinary course of ordinary
business and in a proper and efficient manner;
(b) the Company Group has not disposed of any of its assets other than in
the ordinary course of ordinary business;
(c) the Company Group has not acquired any assets other than in the
ordinary course of ordinary business;
(d) the Company Group has not incurred any liabilities other than in the
ordinary course of ordinary business;
(e) there has been no material adverse change affecting the Business, the
assets of each member of the Company Group, or the financial or
trading position or prospects of each member of the Company Group; and
(f) no dividends, bonus issues or other distributions or repayments of
shareholders' loans have been declared, made or paid by any member of
the Company Group and no share buy-backs have been agreed to or
completed by any member of the Company Group.
-48-
PART 7 ASSETS
7.1 TITLE TO ASSETS
All the significant non-current assets used in the Business and all other
significant non-current assets of each member of the Company Group are:
(a) fully paid for;
(b) in the possession of relevant member of the Company Group;
(c) used solely by the Company Group;
(d) the absolute property of the relevant member of the Company Group free
of all Security Interests and other third party rights; and
(e) not the subject of any lease or hire purchase agreement or agreements
for purchase on deferred terms,
except as set out in schedule 2.
7.2 SECURITY INTERESTS
No member of the Company Group has granted or created, or agreed to grant
or create, any Security Interests in respect of the assets of that member
of the Company Group other than the Security Interests listed in schedule
2.
7.3 PLANT AND MACHINERY
To the Knowledge of the Sellers, all items of plant, machinery, equipment
and vehicles of each member of the Company Group or used in the Business
are:
(a) in good repair and condition having regard to their age;
(b) in satisfactory working order;
(c) capable of doing the work for which they are designed;
(d) not surplus to the requirements of the Company Group and the Business;
and
(e) recorded in the books of the relevant member of the Company Group.
7.4 STOCK
(a) Subject to Warranty 7.4(b) and to the Knowledge of the Sellers, all
stock of each member of the Company Group is of good and merchantable
quality.
-49-
(b) Any slow-moving or obsolete stock has been written-down or written-off.
(c) Inventory levels are sufficient to meet the requirements of the
Business and customer stock held in storage has been sold and has been
adequately insured.
PART 8 INTELLECTUAL PROPERTY RIGHTS
8.1 OWNERSHIP
The Company Group beneficially owns or has an enforceable right to use all
the Company Group Intellectual Property Rights listed in Schedule 3.
8.2 LIST COMPLETE
The Company Group does not own, use, or require in its business any
Intellectual Property Rights other than those listed in schedule 3.
8.3 NO THIRD PARTY RIGHTS
No person, other than the Company Group or a licensor to the Company Group
or the Indonesian Joint Venture, has any right to or may benefit from any
Company Group Intellectual Property Right.
8.4 NO INFRINGEMENT
To the Knowledge of the Sellers, the use by the Company Group of the
Company Group Intellectual Property Right does not breach or infringe any
Intellectual Property Right of any other person.
8.5 REGISTRATION
The Company Group Intellectual Property Rights listed in schedule 3 are
registered in the name of members of the Company Group as disclosed in
schedule 3.
8.6 DISCLOSURE
No trade secret or confidential information of the Company Group has been
disclosed or made available to any person except in the ordinary course of
business.
PART 9 PROPERTIES
9.1 COMPANY GROUP'S INTEREST
No member of the Company Group has an interest in land except for its
interest in the Properties.
-50-
9.2 FREEHOLD PROPERTIES
The Company Group has good title to the Freehold Properties free of all
Security Interests and other third party interests or rights
9.3 OCCUPATION
(a) The Company Group has exclusive occupation and quiet enjoyment of the
Properties and holds all easements, rights, interests and privileges
necessary or appropriate for the conduct of the Business.
(b) All properties occupied or used by the Company Group are:
(1) owned by the Company Group; or
(2) leased or licensed by the Company Group under the Property
Leases.
9.4 TITLE DOCUMENTS
All documents constituting or affecting title to the Properties or true
copies of them have been made available to the Buyer.
9.5 NO BREACH
No member of the Company Group is not in breach of or in default under any
agreement or covenant affecting the Properties.
9.6 NO NOTICES
The Company Group has not received notice from any third party in respect
of any of the Properties and, so far as it is aware, no proposal has been
made:
(a) in respect of the compulsory acquisition or resumption of any part of
any of the Properties;
(b) requiring work to be done or expenditure to be made on or in respect
of any of the Properties; or
(c) which may adversely affect any part of any of the Properties or the
Company Group's use of them.
9.7 CONDITION OF BUILDINGS
All buildings or other improvements on the Properties are in a good
condition and state of repair having regard to their age and the use to
which they are put.
-51-
9.8 DEFECTS
To the Knowledge of the Sellers, the Properties are not subject to any
material defect or other thing which will or might materially decrease
their ability to be used in the Business.
9.9 ENVIRONMENTAL LIABILITIES
(a) There are no Environmental Liabilities affecting any of the
Properties.
(b) There are no factors affecting any of the Properties which are likely
to give rise to any Environmental Liability.
PART 10 RECEIVABLES
10.1 COLLECTABILITY
All debts owing to and amounts due to the Company Group are:
(a) collectable for their full amounts in accordance with their terms; or
(b) covered by provisions in the Accounts,
and are not subject to any counter claim or set-off.
PART 11 SECURITY INTERESTS
11.1 LIST COMPLETE
The Company Group has granted or created, or agreed to grant or create, and
is a party to only those loans, guarantees, letters of comfort,
indemnities, finance leases, hire purchase agreements, or Security
Interests disclosed in the Accounts or listed in schedule 2.
PART 12 CONTRACTS
12.1 NATURE OF CONTRACTS
Any agreement for the installation of refrigeration equipment binding on
the Company Group:
(a) is within the ordinary course of ordinary business of the Company
Group;
(b) is at arm's length;
(c) is capable of complete performance or termination without payment of
damages, within 12 months after the date of this agreement; and
-52-
(d) is not with the Sellers, a Related Corporation or associate, as that
term is defined in the Corporations Law, of the Sellers,
except as otherwise disclosed in schedule 4.
12.2 FOREIGN CURRENCY TRANSACTIONS
The Company Group is not party to any foreign currency transaction except
as disclosed in the Disclosure Letter.
12.3 NO RESTRICTIVE COVENANTS
Other than as provided by the agreements referred to in schedule 3 and the
Indonesian Joint Venture, the Company Group is not party to any agreement
which restricts its freedom to engage in any activity or business in any
area.
12.4 CHANGE OF CONTROL
The Company Group is not party to any agreement under which any third party
is entitled or likely, as a result of a change in ownership of the Rights
or the issue of the shares in the Company to be made pursuant to the
Rights:
(a) to terminate the agreement; or
(b) to require the adoption of terms which are substantially less
favourable to the Company Group than the current terms.
12.5 NO DEFAULT
To the Knowledge of the Sellers, no party to any agreement with the Company
Group (including the Company Group) is in default under it or would be in
default, but for the requirements of notice or lapse of time, or both that
could have a material adverse effect on the Business.
12.6 NO NOTICES
The Company Group has not received any notice which might materially affect
any rights of the Company Group in respect of any agreement.
12.7 LICENSING AGREEMENTS
(a) The Company Group is in compliance with all terms of the Licensing
Agreements.
(b) To the Knowledge of the Sellers, there is no reason to believe that,
subject to usual negotiations, the Licensing Agreements will not be
renewed by the parties to those agreements other than the Company
Group upon expiration of those agreements.
-53-
PART 13 DELEGATIONS AND OFFERS
13.1 OFFERS OUTSTANDING
Any offer, tender or quotation made by the Company Group in respect of the
Business which is outstanding and capable of acceptance by a third party,
was made in the ordinary course of ordinary business.
PART 14 OUTSTANDING NOTES
14.1 OUTSTANDING NOTES
No cheque, promissory note or xxxx of exchange drawn, accepted or endorsed
by the Company Group is still outstanding, other than those drawn to pay
for obligations incurred by the Company Group in the ordinary course of its
ordinary business.
PART 15 SHAREHOLDINGS AND MEMBERSHIPS
15.1 SHAREHOLDINGS
The Company Group is the holder and the beneficial owner of the shares and
other capital and securities convertible into shares or other capital
listed in schedule 7.
15.2 MEMBERSHIPS
The Company Group is not a member of any joint venture, partnership or
unincorporated association (other than a recognised trade association) and
the Indonesian Joint Venture.
15.3 PERMANENT ESTABLISHMENT
The Company Group does not have any permanent establishment (as that
expression is defined in any relevant double taxation agreement to which
Australia is a party) outside Australia.
15.4 OFFICERS
The details of the present directors, secretary, auditor and public officer
of the Company Group are as shown in schedule 7.
PART 16 EMPLOYEES
16.1 SUPERANNUATION ALLOWANCES
Other than contributions to superannuation funds or otherwise required by
law, no member of the Company Group is liable to pay any allowance,
-54-
annuity, benefit, lump sum, pension, premium or other payment in respect of
the death, disability, retirement, resignation or dismissal of any Employee
other than arising in the ordinary course of its ordinary business.
16.2 WRITTEN CONTRACTS
No member of the Company Group is a party to any written employment or
service agreement other than those listed in schedule 5.
16.3 TERMINATION
Other than as may be required by law or pursuant to the agreements listed
in schedule 5, the employment of each employee of any member of the Company
Group can be lawfully terminated on 3 months' notice or less without
payment of any damages or compensation, including any severance or
redundancy payments.
16.4 INDUSTRIAL DISPUTES
No member of the Company Group has been involved in any material industrial
dispute with its employees or any trade union at any time within the 5
years preceding the date of this agreement and the Sellers do not know of
any circumstances likely to give rise to any material industrial dispute.
16.5 PROFIT SHARING AND BONUS PLANS
No member of the Company Group has any formal profit sharing, bonus plans
or any other similar agreements with the Employees but has adopted a
practice of ex gratia payments related to profitability and performance.
PART 17 SUPERANNUATION SCHEMES
17.1 LIST COMPLETE
Schedule 9 contains a complete list of all superannuation funds to which
any member of the Company Group is obliged to make contributions in respect
of any employees.
17.2 FUNDING
With respect to superannuation, there are no outstanding and unpaid
contributions on the part of any member of the Company Group or any
employee other than in the ordinary course of ordinary business.
17.3 APPROVALS
Where the superannuation funds listed in Schedule 9 require approval from
any taxation authority, to the Knowledge of the Sellers, the approval has
been obtained and is still current and the Sellers have no reason to
believe that it may be revoked.
-55-
PART 18 UNIONS
18.1 AGREEMENTS
No member of the Company Group is a party to any agreement with a union or
industrial organisation in respect of the employees outside the
determinations of the Industrial Relations Commission.
PART 19 COMPLIANCE WITH LAWS
19.1 RESTRICTIVE TRADE PRACTICES
No member of the Company Group is a party to any agreement, contract,
arrangement or understanding whether legally enforceable or not which is in
breach of any restrictive trade practices legislation and has not engaged
in any conduct or practice in breach of that legislation.
19.2 LAWS
The Company Group has complied with all laws applicable to the Company
Group and the conduct of the Business including, without limitation, any
Environmental Law.
19.3 LICENCES OBTAINED
(a) Each member of the Company Group has all necessary licences, consents,
permissions, authorities and permits required to conduct its business
and has paid all fees due in relation to them and complied with all
conditions under them.
(b) The Sellers do not know of any factor which might prejudice the
continuance or renewal of any licence, consent, permission, authority
or permit required under Warranty 19.3(a).
PART 20 LITIGATION
20.1 COMPANY GROUP NOT A PARTY TO ANY LITIGATION
No member of the Company Group is, or has in the last 2 years been:
(a) a party to any prosecution;
(b) a party to any litigation, arbitration proceedings or any other form
of mediation or dispute resolution involving a claim exceeding
$100,000; or
(c) subject to any investigation by any Government Agency,
in respect of the Business, the assets of the Company Group or the
Properties.
-56-
20.2 NO LITIGATION PENDING OR THREATENED
No investigation, prosecution, litigation, proceeding or any other form of
mediation or dispute resolution referred to in Warranty 20.1 is pending or,
to the Knowledge of the Sellers, threatened.
20.3 NO CIRCUMSTANCES
To the Knowledge of the Sellers, there are no circumstances which might
give rise to any investigation, prosecution, litigation, proceeding or any
other form of mediation referred to in Warranty 20.1.
PART 21 SOLVENCY
21.1 NO LIQUIDATION OR WINDING-UP
Other than the members' voluntary winding up of Austral C-Stores Pty
Limited, no member of the Company Group has gone into liquidation or passed
a winding-up resolution nor received a notice under sections 572 or 573 of
the Corporations Law.
21.2 NO PETITION
No petition or other process for winding-up has been served on or
threatened against any member of the Company Group and, to the Knowledge of
the Sellers, there are no circumstances justifying a petition or other
process.
21.3 NO WRIT OF EXECUTION
No writ of execution has been served on or enforced against any member of
the Company Group or the property of any member of the Company Group and,
to the Knowledge of the Sellers, there are no circumstances justifying a
writ.
21.4 NO RECEIVER
No receiver or receiver and manager of any part of the undertaking or
assets of any member of the Company Group, has been appointed or is
threatened or expected to be appointed and, to the Knowledge of the
Sellers, there are no circumstances justifying an appointment.
PART 22 RECORDS AND CONSTITUENT DOCUMENTS
22.1 RECORDS
All accounts, books, ledgers and financial and other records of each member
of the Company Group:
-57-
(a) are up-to-date;
(b) have been fully and accurately maintained;
(c) comply with all legal requirements; and
(d) are in the possession or under the control of the relevant member of
the Company Group.
22.2 MEMORANDUM AND ARTICLES
The Company has supplied accurate and up-to-date copies of the Memorandum
and Articles of Association of each member of the Company Group to the
Buyer.
22.3 REGISTER OF MEMBERS
The Company Group has not received notice of any application or intended
application for the rectification of its register of members or any other
register which it is required by law to maintain.
PART 23 TAXES AND DUTIES
23.1 TAX PAID
Any Tax due and payable under any Tax Law in respect of any transaction,
income or asset of the Company Group has been paid.
23.2 PROVISION IN ACCOUNTS
Adequate provision has been made in the Accounts for any Tax on the Company
Group which the Sellers are or the Company Group is aware is payable or may
become payable but which is unpaid.
23.3 WITHHOLDING TAX
Any obligation under any Tax Law to withhold amounts at source for
withholding tax, PAYE tax, Prescribed Payments System tax and royalties has
been complied with.
23.4 NO CAPITAL GAINS TAX RELIEF
No member of the Company Group has sought capital gains tax relief under
section 16OZZO of the Tax Act with respect to any asset acquired by that
member and which is still owned by that member of the Company Group at
Completion.
-58-
23.5 DOCUMENTS STAMPED
Any Duty payable in respect of any Tax Law in relation to any transaction
or agreement to which any member of the Company Group is or has been a
party or by which any member of the Company Group derives, or has derived a
substantial benefit has been paid.
23.6 RECORDS
Each member of the Company Group has maintained proper and adequate records
to enable it to comply with its obligations to:
(a) prepare and submit any information, notices, computations, returns and
payments required in respect of any Tax Law;
(b) prepare any accounts necessary for the compliance of any Tax Law; and
(c) retain necessary records as required by any Tax Law.
23.7 RETURNS SUBMITTED
Each member of the Company Group has submitted any necessary information,
notices, computations and returns to the relevant Government Agency in
respect of any Tax or any Duty relating to that member of the Company
Group.
23.8 RETURNS ACCURATE
Any information, notice, computation and return which has been submitted by
any member of the Company Group to a Government Agency in respect of any
Tax or Duty:
(a) discloses all material facts that should be disclosed under any Tax
Law;
(b) is not misleading; and
(c) has been submitted on time.
23.9 COPIES ACCURATE
All copies of any information, notice, computation or return submitted by
any member of the Company Group in respect of any Tax or Duty which have
been supplied by the Sellers or their advisers are true and complete copies
of the originals.
23.10 PUBLIC OFFICER
The office of public officer of each member of the Company Group as
required under any Tax Law has always been occupied.
-59-
23.11 NO TAX AUDIT
No member of the Company Group is aware of any pending or threatened Tax or
Duty audit.
23.12 NO DISPUTES
There are no disputes between any member of the Company Group and any
Government Agency in respect of any Tax or Duty.
23.13 AVAILABILITY OF FUTURE INCOME TAX BENEFITS
To the Knowledge of the Sellers, no event has occurred which may prevent
any member of the Company Group obtaining the benefit of any future income
tax benefit provided for in the Accounts.
23.14 ANTI-AVOIDANCE
The Company Group has not entered into or been a party to any transaction
which contravenes the anti-avoidance provisions of any Tax Law.
23.15 NO PREJUDICIAL ACTION
To the Knowledge of the Sellers, no member of the Company Group has taken
any action which has or might alter or prejudice any arrangement, agreement
or tax ruling which has previously been negotiated with or obtained from
the relevant Government Agency under any Tax Law.
23.16 NO THIRD PARTY LIABILITY
No member of the Company Group is and will become liable to pay, reimburse
or indemnify any person in respect of any Tax or Duty relating to any act
or omission occurring before Completion because of the failure of any other
person to discharge that Tax or Duty.
23.17 EVENTS SINCE ACCOUNTS DATE
(a) Since the Accounts Date, no member of the Company Group has:
(1) made or incurred or committed to make or incur any payment or
expenditure other than in the ordinary course of its ordinary
business;
(2) disposed of any asset or supplied any service or business
facility (including a loan of money or the letting, hiring or
licensing of any property) other than in the ordinary course of
its ordinary business; and
(3) acquired any asset or received any service or business facility
other than in the ordinary course of its ordinary business.
-60-
23.18 DISCLOSURE
To the Knowledge of the Sellers, all information necessary for the
calculation of any Tax liabilities of any member of the Company Group:
(a) up to the Accounts Date, has been disclosed to the Buyer before
the date of this agreement; and
(b) between the date of this agreement and the Completion Date, has
been or will be made available to the Buyer at its request before
the Completion Date.
PART 24 INSURANCE
24.1 CURRENT INSURANCES
Schedule 10 contains complete and accurate particulars of all current
insurances and cover notes taken out in respect of the Company Group.
24.2 POLICIES
All insurances listed in schedule 10 are currently in full force and
effect, all premiums due under them have been paid and, to the Knowledge of
the Sellers, nothing has been done or omitted to be done which would make
any of them void, voidable or unenforceable.
24.3 CLAIMS
To the Knowledge of the Sellers, there are no claims outstanding, pending
or threatened against any member of the Company Group in respect of any
accident or injury which are not fully covered by insurance but such claims
may be subject to customary excess provisions.
24.4 ADEQUACY OF COVER
To the Knowledge of the Sellers, each member of the Company Group has, and
at all material times has had, valid and adequate insurance cover in
respect of the Business, its employees and assets:
(a) against all risks normally insured against by companies carrying on
the same type of business as the Company Group or having similar
assets;
(b) for the full amount required by legislation;
(c) for the full replacement value of its assets; and
(d) from a well-established and reputable insurer.
-61-
EXECUTED by the parties as an agreement:
THE COMMON SEAL of
LOBIKE PTY LTD
was affixed to this document
in the presence of:
/S/ I.A. MCLENNAN /S/ X.X. XXXXXXXX
Director
I.A. MCLENNAN X.X. XXXXXXXX
Name (please print) Name (please print)
THE COMMON SEAL of
LOCANA PTY LTD
was affixed to this document
in the presence of:
/S/ I.A. MCLENNAN /S/ X.X. XXXX
I.A. MCLENNAN PERSON AUTHORIZED X.X. XXXX PERSON AUTHORIZED
Name (please print) Name (please print)
THE COMMON SEAL of
LOFIVA PTY LTD
was affixed to this document
in the presence of:
/S/ XXXXX X. XXXXXXXX /S/ X.X. XXXX
Person Authorized Director
XXXXX X. XXXXXXXX X.X. XXXX
Name (please print) Name (please print)
-00-
XXX XXXXXX SEAL of
LOGELA PTY LTD
was affixed to this document
in the presence of:
/S/ I.A. MCLENNAN /S/ L.O. XXXXXX
Director
I.A. MCLENNAN PERSON AUTHORIZED L.O. XXXXXX
Name (please print) Name (please print)
SIGNED by XXXXX XXXXX
XXXXXXXX in the presence of:
/S/ I.A. MCLENNAN /S/ XXXXX XXXXX XXXXXXXX
Witness Xxxxx Xxxxx XxXxxxxx
I.A. MCLENNAN
Name (please print)
SIGNED by XXXX XXXXX
XXXXX by his Joint Attorneys in
the presence of:
/S/ I.A. MCLENNAN /S/ XXXXXX XXXX XXXXXX
Witness Xxxx Xxxxx Xxxxx
/s/ X.X. XxXxxxxx
Xxxxx X. XxXxxxxx
I.A. MCLENNAN
Name (please print)
SIGNED by XXXXXXX XXXX
XXXX in the presence of:
/S/ I.A. MCLENNAN /S/ X.X. XXXX
Witness Xxxxxxx Xxxx Xxxx
I.A. MCLENNAN
Name (please print)
-63-
SIGNED by XXXXXX XXXX
XXXXXX in the presence of:
/S/ I.A. MCLENNAN /S/ XXXXXX XXXX XXXXXX
Witness Xxxxxx Xxxx Xxxxxx
I.A. MCLENNAN
Name (please print)
SIGNED for XXXXX INDUSTRIAL
CORPORATION by its attorney in the
presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ XXXX X'XXXXXXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX XXXX X'XXXXXXXX
Name (please print) Name (please print)
-64-
