EXHIBIT 2.2
SHAREHOLDERS 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)
Refrigeration Investment (MBO) Limited
Xxxxx Industrial Corporation
Hill Young & Associates Limited
(A.C.N. 003 977 106)
T & M Xxxxxxxx Nominees Pty Ltd
(A.C.N. 071 527 010)
Xxxxx Xxxxx XxXxxxxx
Xxxx Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxx Xxxxxxxx
and
Austral Refrigeration Pty Ltd
(A.C.N. 001 702 594)
THIS SHAREHOLDERS AGREEMENT is made on 14 FEBRUARY 1996 between the
following parties:
1. LOBIKE PTY LTD (A.C.N. 001 874 380) of 00 Xxxx Xxxxxx, Xxxxxxx Xxx
Xxxxx Xxxxx it 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 being jointly referred to as "the
Founding Shareholders";
5. REFRIGERATION INVESTMENT (MBO) LIMITED, a company incorporated under
the laws of the British Virgin Islands, of Trident Xxxxxxxx, P.O. Box
146, Road Town, Tortola, British Virgin Islands ("MBO");
6. XXXXX INDUSTRIAL CORPORATION, a company incorporated under the laws of
Michigan, of Xxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of
America ("Xxxxx");
7. HILL YOUNG & ASSOCIATES LIMITED (A.C.N. 003 977 106) of Xxxxx 00,
Xxxxxxxx Xxxxxxx Tower, 0 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx ("Hill
Young");
8. T & M XXXXXXXX NOMINEES PTY LTD (A.C.N. 071 527 010) of 00 Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx in its own capacity and as trustee for the
Xxxxxxxx Family Trust ("Xxxxxxxx Nominees");
9. XXXXX XXXXX XXXXXXXX of 00 Xxx Xxxxx Xxxxxx, Xxxxxxxx-Xx-Xxxxx, Xxx
Xxxxx Xxxxx ("XxXxxxxx");
10. XXXX XXXXX XXXXX of 00 Xxxxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxx
Xxxxx ("Xxxxx");
11. XXXXXXX XXXX XXXX of 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxx Xxxxx
("Moon");
12. 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";
13. XXXXX XXXX XXXXXXXX of 00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
("Xxxxxxxx"); and
14. AUSTRAL REFRIGERATION PTY LTD (A.C.N. 001 702 594) of 00 Xxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxx Xxxxx ("the Company").
RECITALS:
A. The Company Group carries on the Business.
B. The Founding Shareholders have sold certain shares in the Company to
MBO and Xxxxx.
X. Xxxx Xxxxx and Xxxxxxxx Nominees also hold shares in the Company.
D. The parties have agreed to conduct their relationship as shareholders
in the Company and to operate the Company and the Business in
accordance with this agreement.
E. The Guarantors agree to guarantee the obligations of the Founding
Shareholders under this agreement.
X. Xxxxxxxx agrees to guarantee the obligations of Xxxxxxxx Nominees
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:
"APPLICABLE PERCENTAGE" means, in respect of a Shareholder, the percentage
of the total number of Shares represented by the number of Shares owned by
that Shareholder as at the date of this agreement and thereafter as varied
in accordance with this agreement;
"ASX" means the Australian Stock Exchange Limited or any of its
Subsidiaries;
"AUDITOR" means the Company's auditor determined under clause 6.5(13);
"BOARD" means the board of directors of the Company;
"BUDGET" means the budget adopted under clause 8.1;
"BUSINESS" means the business of the Company described in clause 2.1;
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"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;
"COMMENCEMENT DATE" means the day which is the "Completion Date" as defined
in the Share Purchase Agreements;
"COMPANY GROUP" means the Company and any Subsidiary of the Company and any
one or more of them;
"COMPETITOR" means a person who carries on whether:
(a) alone; or
(b) through a partnership, corporation, trust, joint venture or any other
entity that directly or indirectly controls, or is controlled by, or
is under common control with, the person; or
(c) through any other associated or affiliated person,
a business which is principally the manufacture of refrigerated cases for
similar applications to those made by the Company Group;
"CONFIDENTIAL INFORMATION" means any information regarding:
(a) the Business;
(b) the assets or affairs of the Company Group;
(c) this agreement and the transaction contemplated by it; and
(d) the Shareholders;
"CORPORATIONS LAW" means the Corporations Law of New South Wales;
"DISPOSE" includes, without limitation, in respect of a Share, either
directly or indirectly or through any other entities:
(a) to sell, assign or transfer;
(b) to grant an option or rights of pre-emption over;
(c) to create trusts in respect of;
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(d) to create or grant any relevant interest, as defined in section 34 of
the Corporations Law, in;
(e) to otherwise alienate; or
(f) to grant the power (defined to include the matters set out in section
30 of the Corporations Law) to do any of the matters set out in
paragraphs (a) to (e) in respect of,
the Share, an interest in the Share or the right to exercise the vote
attached to the Share or to enter into any transaction having the same
result as the matters set out in paragraphs (a) to (e) above;
"DISPOSING SHAREHOLDER" means a Shareholder which proposes to Dispose of
Shares to the Majority Purchaser;
"EBIT" means earnings before interest and tax;
"ENCUMBRANCE" means an interest or power:
(a) reserved in or over any 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, 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;
"EXERCISING SHAREHOLDER" means a Shareholder which exercises the option
specified in clause 16.1;
"GOVERNMENTAL AGENCY" means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity;
"HOLDING COMPANY" has the same meaning as in the Corporations Law;
"XXXXX AGREEMENT" means the Share Purchase Agreement dated 16 December 1995
between the Founding Shareholders, the Guarantors and Xxxxx;
"XXXXXXXX FAMILY TRUST" means the trust constituted by the Xxxxxxxx Family
Trust Deed;
"XXXXXXXX FAMILY TRUST DEED" means the Deed of Settlement dated 20 October
1995 between Xxxxxxx Xxxxxxx Xxxx and T & M Xxxxxxxx Nominees Pty Ltd;
"LEUMEAH ROAD TRUST" means the trust constituted by the Leumeah Road Trust
Deed;
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"LEUMEAH ROAD TRUST DEED" means the Deed of Trust dated 25 April 1979
between Robcharta Nominees (NSW) Pty Limited and Xxxxx Xxxxxxx;
"LISTING" means the listing of the Shares for official quotation on the
main board of the ASX or any other agreed recognised stock exchange under
part 20;
"MAJORITY PURCHASER" means a person who would acquire or move to a majority
interest in the Company under clause 16.5;
"MBO AGREEMENT" means the Share Purchase Agreement dated 16 December 1995
between the Founding Shareholders, the Guarantors and MBO Partners;
"MBO PARTNERS" means MBO Partners Limited, a company incorporated under the
laws of the British Virgin Islands, of Trident Xxxxxxxx, X.X. Xxx 000, Xxxx
Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx, 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;
"MINORITY SHAREHOLDER" means a Shareholder holding a minority interest in
the Company referred to in clause 16.5(a);
"NOTICE OF ACCEPTANCE" means a notice of acceptance of the issue of
Securities in the Company under clause 4.2;
"NOTICE OF EXERCISE" means a notice of exercise under clause 16.1;
"NOTICE OF ISSUE" means a notice of issue of Securities in the Company
under clause 4.1;
"NOTICE OF NON-EXERCISE" means a notice under clause 15.4;
"NOTICE OF SALE" means a notice of sale of Shares given under clause 14.1;
"OFFERED SECURITIES" means the total number of Securities to be issued by
the Company as specified in a Notice of Issue;
"OFFEREE SHAREHOLDER" means a Shareholder which exercises the option
granted by a Notice of Sale;
"POWER" means any right, power, authority, discretion or remedy conferred
by this agreement or any applicable law;
"QUARTER" means each period of 3 months commencing on each of:
(a) 1 July;
(b) 1 October;
(c) 1 January; and
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(d) 1 April;
"RELATED CORPORATION" means a "related body corporate" as that expression
is defined in the Corporations Law 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;
"RESTRICTED PERIOD" means the period commencing on the Commencement 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;
"SALE PERCENTAGE" means, in respect of a Seller Shareholder, the percentage
of the total number of Shares of the Seller Shareholder represented by the
number of the Sale Shares;
"SALE SHARES" means the Shares a Seller Shareholder wishes to sell as
specified in the Notice of Sale;
"SALE SHARE PRICE" means the price for each Share specified in a Notice of
Sale;
"SECURITIES" means shares, debentures, convertible notes, options or other
equity or debt securities;
"SELLER SHAREHOLDER" means a Shareholder which serves a Notice of Sale;
"SHARES" means the issued ordinary shares of $1.00 each in the capital of
the Company;
"SHAREHOLDERS" means each Founding Shareholder, MBO, Xxxxx, Xxxx Xxxxx and
Xxxxxxxx Nominees;
"SHARE PURCHASE AGREEMENTS" means:
(a) the MBO Agreement; and
(b) the Xxxxx Agreement;
"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;
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(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;
"THIRD PARTY" means a person who wants to buy the Shares of the Seller
Shareholder as specified in a Notice of Sale;
"XXXXXX AVENUE TRUST" means the trust constituted by the Xxxxxx Avenue
Trust Deed; and
"XXXXXX AVENUE TRUST DEED" means the Deed of Trust dated 11 April 1979
between Robcharta Nominees (NSW) Pty Limited and Xxxxx Xxxxx Xxxxxxx.
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) where a word or phrase is defined in this agreement, other parts of
speech and grammatical forms of that word or phrase 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 Governmental 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;
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(g) a reference to any statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or
by-laws varying, consolidating or replacing them, 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 an amendment or supplement to, or
replacement or novation 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;
(l) a reference to an 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 a month is a reference to a calendar month;
(p) a reference to a body (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 Founding Shareholders" is a reference to Lobike,
Locana, Lofiva and Logela jointly and severally; and
(r) a reference to "the Guarantors" is a reference to McIntosh, Rogan,
Moon and Xxxxxx jointly and severally.
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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 INCONSISTENCY WITH ARTICLES
(a) If there is any inconsistency between this agreement and the articles
of association of the Company, this agreement prevails.
(b) If at any time there is an inconsistency between this agreement and
the articles of association of the Company, the Shareholders must
amend the articles of association to conform the articles of
association to this agreement.
PART 2
COMPANY'S BUSINESS AND ARTICLES
2.1 DESCRIPTION OF BUSINESS
The business of the Company Group is:
(a) the manufacture, sale, installation and servicing of refrigeration
equipment; and
(b) any other business determined by the directors under clause 6.4 or by
the Shareholders.
2.2 ARTICLES
On the Commencement Date, the parties must ensure that the form of articles
of association of the Company agreed by the Founding Shareholders, MBO
Partners and Xxxxx under clause 2.1(f) of the MBO Agreement and clause
2.1(f) of the Xxxxx Agreement is adopted as the Company's articles of
association.
PART 3
SHARES
3.1 OWNERSHIP OF SHARES
The Shareholders acknowledge that on and from the Commencement Date the
Shares are legally and beneficially owned in accordance with the details
contained in schedule 1.
3.2 FURTHER ISSUE OF SECURITIES
No further issue of Securities in the Company may take place other than in
accordance with part 4.
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3.3 RIGHTS OF SHARES
Subject to this agreement, each Share confers the same rights.
3.4 DISPOSAL OF SHARES
(a) Subject to clause 3.4(b), a Shareholder must not Dispose of any Share
other than in accordance with parts 14, 15 or 16.
(b) Despite clause 3.4(a), a Shareholder may Dispose of Shares:
(1) to a wholly-owned Subsidiary of the Shareholder or to a
partnership, corporation, trust or other entity that directly or
indirectly controls, or is controlled by, or is under common
control with, the Shareholder;
(2) subject to clause 3.4(e), if the Shareholder is a Founding
Shareholder, to:
(A) any other Founding Shareholder or Xxxxxxxx Nominees;
(B) Xxxxxxxx, McIntosh, Miller, Moon or Xxxxx;
(C) any members of the families of the persons listed in clause
3.4(b)(2)(B); or
(D) any trusts established for the benefit of the persons listed
in clauses 3.4(b)(2)(B) or 3.4(b)(2)(C); or
(3) if Shareholders holding no less than 80% of the Shares give prior
written consent.
(c) The consent of a Shareholder referred to in clause 3.4(b)(3) may be
withheld in the absolute discretion of the Shareholder.
(d) Despite any other provision of this agreement, a Shareholder may not
Dispose of any Share to a Competitor.
(e) Despite any other provision of this agreement, a Founding Shareholder
may not Dispose of any Share to any person during the Restricted
Period.
3.5 ENCUMBRANCE OVER SHARES
(a) No Shareholder may create an Encumbrance over a Share unless:
(1) Shareholders holding no less than 80% of the Shares give prior
written consent; and
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(2) the person to whom the Encumbrance is granted enters into an
agreement with all Shareholders not to Dispose of the Share
unless that person complies with parts 14, 15 and 16.
(b) The consent of a Shareholder referred to in clause 3.5(a) may be
withheld in the absolute discretion of the Shareholder.
3.6 REFUSAL TO REGISTER
(a) The Company may refuse to register the issue or transfer of any Shares
if clauses 3.4 or 3.5 has not been complied with.
(b) The Company must register any transfer of Shares arising from a
Disposal of Shares pursuant to clause 3.4(b).
PART 4
FURTHER ISSUES OF SECURITIES
4.1 NOTICE OF ISSUE
If:
(a) the Company proposes to issue any Securities other than in connection
with the Listing; and
(b) approval has been given under clause 6.5(b)(12),
the Company must give notice in writing to each Shareholder of the proposed
issue specifying:
(c) the Offered Securities;
(d) the total number of Securities the Shareholder is entitled to
purchase, being the Applicable Percentage of the Offered Securities;
and
(e) the issue price of each Security.
4.2 NOTICE OF ACCEPTANCE
Within 10 Business Days of receipt of a Notice of Issue, a Shareholder
which wants to purchase all or part of its entitlement to the Securities
specified in the Notice of Issue must give notice in writing to the Company
specifying:
(a) the percentage of the Shareholder's entitlement to the Offered
Securities specified in the Notice of Issue that the Shareholder wants
to purchase; and
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(b) the number of Offered Securities in excess of those specified in
paragraph (a) that the Shareholder wants to purchase.
4.3 FAILURE TO GIVE A NOTICE OF ACCEPTANCE
Failure by a Shareholder to give a Notice of Acceptance within the period
specified in clause 4.2 will constitute a waiver of the Shareholder's right
to participate in the purchase of the Offered Securities.
4.4 ALLOCATION OF OFFERED SECURITIES
(a) If a Shareholder declines to purchase all of its Applicable Percentage
of the Offered Securities, the Company must allocate those Securities
not purchased to the Shareholders which specified a desire in their
Notices of Acceptance to purchase in excess of their Applicable
Percentage of the Offered Securities.
(b) If the total number of excess Securities is less than the number that
Shareholders want to purchase, the excess Securities must be allocated
to the Shareholders pro rata based upon their Applicable Percentages.
4.5 ISSUE OF EXCESS TO THIRD PARTIES
If the Shareholders do not purchase all the Offered Securities under clause
4.4, the Company may offer the remaining Offered Securities to such third
parties and on such terms as the directors may determine.
PART 5
APPOINTMENT AND REMOVAL OF DIRECTORS
5.1 NUMBER OF DIRECTORS
The Company must have 6 directors.
5.2 APPOINTMENT OF DIRECTORS
(a) The Founding Shareholders and Xxxxxxxx Nominees are entitled to
appoint and must at all times appoint a total of 3 directors, being 2
executive directors and 1 non-executive director.
(b) MBO is entitled to appoint and must at all times appoint 1 director,
being a non-executive director.
(c) Xxxxx is entitled to appoint and must at all times appoint 1 director,
being a non-executive director.
(d) One non-executive director must be appointed by majority agreement
between the Founding Shareholders, MBO and Xxxxx.
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(e) For the purposes of clause 5.2(d), there will be a total of 3 votes
and the Founding Shareholders, MBO and Xxxxx will each have 1 vote.
(f) The Founding Shareholders, MBO and Xxxxx must ensure that at all times
a director is appointed under clause 5.2(d).
(g) Hill Young is not entitled to appoint any directors.
5.3 INITIAL NOMINEES OF THE FOUNDING SHAREHOLDERS
The Shareholders acknowledge that the 3 nominees of the Founding
Shareholders and Xxxxxxxx Nominees as initial directors under clause 5.2(a)
are:
(a) Xxxxx Xxxxxx XxXxxxxx as an executive director;
(b) Xxxxxxxx as an executive director; and
(c) Moon as a non-executive director.
5.4 NOMINATION OF DIRECTORS
Before the Commencement Date:
(a) MBO must nominate 1 nominee as an initial director under clause
5.2(b);
(b) Xxxxx must nominate 1 nominee as an initial directors under clause
5.2(c); and
(c) the Shareholders must agree the nominee as initial director under
clause 5.2(d) in accordance with clauses 5.2(d) and 5.2(e).
5.5 REMOVAL AND REPLACEMENT OF DIRECTORS
(a) A Shareholder may remove and replace its nominees as directors.
(b) A director appointed by the Founding Shareholders and Xxxxxxxx
Nominees under clause 5.2(a) may only be removed by a majority of the
Founding Shareholders and Xxxxxxxx Nominees.
(c) A director appointed by MBO under clause 5.2(b) may only be removed by
MBO.
(d) A director appointed by Xxxxx under clause 5.2(c) may only be removed
by Xxxxx.
(e) A director appointed by the Founding Shareholders, MBO and Xxxxx under
clause 5.2(d) may only be removed by majority agreement between the
Founding Shareholders, MBO and Xxxxx.
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(f) For the purposes of clause 5.5(e), there will be a total of 3 votes
and the Founding Shareholders, MBO and Xxxxx will each have 1 vote.
5.6 DIRECTOR AN EMPLOYEE
If the Company terminates the employment of an employee of the Company who
is also a director:
(a) the person's appointment as a director also terminates; and
(b) the Shareholder which nominated that person may not re-appoint that
person as a director.
5.7 CHAIRPERSON
(a) The chairperson of directors must be the director appointed under
clause 5.2(d).
(b) The chairperson may be removed by majority agreement between the
Founding Shareholders, MBO and Xxxxx.
(c) For the purposes of clause 5.7(b), there will be a total of 3 votes
and the Founding Shareholders, MBO and Xxxxx will each have 1 vote.
(d) If the chairperson is absent from a meeting of directors, or is
unwilling to act, the directors present at the meeting may elect one
of their number to act as chairperson of the meeting.
5.8 MANAGING DIRECTOR
(a) Any managing director must be approved by the directors in accordance
with clause 6.5(b)(7).
(b) The initial managing director will be Xxxxx XxXxxxxx.
5.9 WRITTEN APPOINTMENTS AND REMOVALS
(a) A party making an appointment or removal under this part 5 must do so
by giving written notice of the appointment or removal to the Company.
(b) On delivery of the notice the appointment or removal takes effect
immediately.
5.10 ALTERNATE DIRECTORS
(a) Subject to clauses 5.10(b) to (e), a director may appoint a person to
be the director's alternate director with all the powers and rights of
the director and for such period as the director thinks fit.
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(b) An alternate director may only be appointed by any director appointed
under clause 5.2(a) with the prior consent of a majority of the
Founding Shareholders and Xxxxxxxx Nominees.
(c) An alternate director may only be appointed by a director appointed
under clause 5.2(b) with the prior consent of MBO.
(d) An alternate director may only be appointed by a director appointed
under clause 5.2(c) with the prior consent of Xxxxx.
(e) An alternate director may only be appointed by a director appointed
under clause 5.2(d) with the prior consent of a majority of the
Founding Shareholders, MBO and Xxxxx.
(f) For the purposes of clause 5.10(e), there will be a total of 3 votes
and the Founding Shareholders, MBO and Xxxxx will each have 1 vote.
5.11 INSURANCE
The Company must, to the extent permitted by law:
(a) purchase and maintain insurance; or
(b) pay or agree to pay a premium for insurance,
for each director of the Company against any liability incurred by the
director as an officer of either the Company or any member of the Company
Group including, but not limited to, a liability for negligence or for
reasonable costs and expenses incurred in defending proceedings, whether
civil or criminal and whatever their outcome.
PART 6
MEETINGS AND RESOLUTIONS OF DIRECTORS
6.1 FREQUENCY OF MEETINGS
(a) The directors must meet at least once every 3 months.
(b) The directors must agree the dates for meetings of directors for each
calendar year before the beginning of that calendar year.
6.2 QUORUM
(a) The quorum for a meeting of directors is 3 directors of whom:
(1) 1 director is the director nominated by MBO under clause 5.2(b);
and
(2) 1 director is the director nominated by Xxxxx under clause
5.2(c).
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(b) If a quorum is not present at a meeting of directors within 30 minutes
from the time of the meeting specified in the relevant notice of
meeting, the meeting is adjourned to the same time and place on the
next Business Day.
(c) If a quorum is not present at the adjourned meeting under clause
6.2(b), the quorum at the adjourned meeting will be 2 directors
regardless of which directors are present.
(d) Subject to the other sub-clauses of this clause 6.2, the
contemporaneous linking together by telephone or other method of audio
or audio visual communication of a number of the directors is
sufficient to constitute a quorum.
(e) A director participating in a meeting by telephone or audio or audio
visual communication is to be taken to be present in person at the
meeting.
6.3 VOTING ENTITLEMENTS
The voting entitlements of the directors are as follows:
(a) each director, including the chairperson, has one vote; and
(b) in the case of an equality of votes, the chairperson has a casting
vote.
6.4 BOARD RESOLUTIONS
All resolutions at meetings of the directors must be decided by a simple
majority, except those decisions listed in clause 6.5(b).
6.5 MAJORITY DECISIONS
(a) The resolutions of the directors listed in clause 6.5(b) only require
the affirmative vote of:
(1) the non-executive director nominated by the Founding Shareholders
and Xxxxxxxx Nominees under clause 5.2(a); and
(2) the director nominated by MBO under clause 5.2(b); and
(3) the director nominated by Xxxxx under clause 5.2(c),
to be passed as resolutions of the directors and clauses 6.3 and 6.4
do not apply.
(b) The following resolutions of the directors require the affirmative
vote set out in clause 6.5(a).
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(1) THIS AGREEMENT: any variation, amendment or modification to this
agreement;
(2) MEMORANDUM AND ARTICLES OF THE COMPANY: any alteration to the
memorandum of association or the articles of association of any
of the members of the Company Group;
(3) CAPITAL EXPENDITURES: capital expenditures in any year exceeding
$4,000,000 in aggregate;
(4) FINANCIAL ACCOMMODATION AND GUARANTEES: the Company Group or any
member of the Company Group in any year:
(A) raising any financial accommodation resulting in the total
indebtedness of the Company Group exceeding the total
indebtedness of the Company Group at the end of the previous
financial year by more than $3,000,000;
(B) entering into or becoming liable under any guarantee or
indemnity, or similar arrangement under which the Company
Group or any member of the Company Group may incur liability
in respect of the financial obligation of any other person
such that the total amount guaranteed by the Company Group
exceeds the total amount guaranteed by the Company Group at
the end of the previous financial year by more than
$3,000,000;
(5) ACQUISITION: any acquisition or other business combination by the
Company Group or any member of the Company Group by:
(A) the purchase of assets in excess of $2,000,000 in the
aggregate;
(B) the purchase of equity or security convertible into equity
in excess of $2,000,000 in the aggregate;
(C) any merger or consolidation;
(6) CHANGE IN BUSINESS: any substantial alteration in the strategic
direction of the Business or the entry into any new business;
(7) MANAGERS: the appointment or removal of the persons who fill the
following positions:
(A) the Managing Director - Austral Group;
(B) the Managing Director - Xxxxxxxx Refrigeration;
(C) General Manager (Manufacturing);
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(D) Group Marketing Manager;
(E) Group Financial Controller; and
(F) General Manager, Austral Refrigeration;
(8) REMUNERATION OF INDEPENDENT DIRECTOR AND MANAGERS: the
remuneration of:
(A) the director appointed under clause 5.2(d); and
(B) the persons who fill the positions referred to in clause
6.5(b)(7);
(9) LIQUIDATOR AND WINDING UP: the appointment of a liquidator to any
member of the Company Group or any proposal to wind up any member
of the Company Group;
(10) ASSETS: any sale, lease, exchange or other disposition of all or
a substantial part of the assets of the Company Group or any
member of the Company Group;
(11) AUTHORISED CAPITAL: any alteration to the authorised share
capital of any member of the Company Group;
(12) ISSUES OF SECURITIES: the issue and terms of issue of any
Securities in any member of the Company Group;
(13) AUDITOR: the appointment or removal of the Auditor;
(14) DIVIDEND POLICY: any alteration or change to the dividend policy
of the Company specified in clause 9.1; and
(15) DISPOSAL OF BUSINESS: the disposal of the Business or any
substantial part of it.
6.6 ACTION BY COMPANY AGAINST A SHAREHOLDER
If certain Shareholders determine that an action should be brought by the
Company against any other Shareholder for breach of any agreement between
the Company and that other Shareholder:
(a) the directors other than the directors nominated by the other
Shareholder have the power to cause the Company to bring that action;
and
(b) the directors nominated by the other Shareholder must abstain from
voting on all questions concerning that action.
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6.7 OBSERVERS AT BOARD MEETINGS
If any Shareholder has not exercised its right to appoint under clause 5.2
at least 1 director who is in office the Shareholder may, by notice in
writing to the Company, appoint an observer to attend and speak, but not
vote, at meetings of the directors.
6.8 NOTICE OF MEETINGS
(a) Unless all the directors agree otherwise, they must receive at least 5
Business Days notice of a meeting.
(b) Unless all the directors agree otherwise, they cannot pass a
resolution unless notice of the subject of that resolution was
included in the notice of meeting.
6.9 EXPENSES
(a) All directors are entitled to be paid all travel, accommodation and
other expenses properly incurred by them in connection with the
affairs of the Company including, without limitation, attending and
returning from meetings of the directors or of committees of
directors.
(b) Any representatives of MBO or Xxxxx who, with the prior approval of
the Board, provide assistance or services to the Company Group are
entitled to be paid all travel, accommodation and other expenses
properly incurred by them in connection with the affairs of the
Company Group.
(c) Any reference to travel expenses in this clause 6.9 includes, without
limitation, any international travelling expenses.
6.10 WRITTEN RESOLUTIONS
(a) Subject to the satisfaction of any requirements of clause 6.5, if:
(1) any of the directors assent to a document containing a statement
to the effect that an act, matter or thing has been done or
resolution has been passed; and
(2) the directors who assent to the document would have constituted a
quorum under clause 6.2 at a meeting of directors held to
consider that act, matter, thing or resolution,
then that act, matter, thing or resolution is to be taken as having
been done at or passed by a meeting of the directors.
(b) For the purposes of article 6.10(a):
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(1) the meeting is to be taken as having been held:
(A) if the directors assented to the document on the same day,
on the day on which the document was assented to and at the
time at which the document was last assented to by a
director; or
(B) if the directors assented to the document on different days,
on the day on which, and at the time at which, the document
was last assented to by a director;
(2) 2 or more separate documents in identical terms each of which is
assented to by one or more directors are to be taken as
constituting one document; and
(3) a director may signify assent to a document by signing the
document or by notifying the company of the director's assent in
person or by post, telex, facsimile transmission, telephone or
other method of written, audio or audio visual communication.
(c) Where a director signifies assent to a document otherwise than by
signing the document, the director must by way of confirmation sign
the document at the next meeting of the directors attended by that
director, but failure to do so does not invalidate the act, matter,
thing or resolution to which the document relates.
(d) Where a document is assented to in accordance with clause 6.10(a), the
document is to be taken as a minute of a meeting of directors.
6.11 DEADLOCK
If the directors fail to agree under clause 6.5(b)(8) on any annual changes
to the remuneration of the director appointed under clause 5.2(d) and the
persons who fill the positions referred to in clause 6.5(b)(7), the
remuneration for those persons must be increased by a percentage equal to
the percentage increase during the 12 month period ending on the date of
the review in the All Groups Consumer Price Index for Sydney published by
the Australian Bureau of Statistics.
PART 7
IMPLEMENTATION OF BOARD DECISIONS
7.1 IMPLEMENTATION OF BOARD DECISIONS
Despite any contrary provision in this agreement or the Company's articles
of association, the Shareholders must adopt and implement decisions of the
Board and must not act otherwise than in accordance with a decision of the
Board.
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PART 8
BUDGET AND BUSINESS PLAN
8.1 ANNUAL BUDGET
The Company and each Shareholder must use all reasonable endeavours to
ensure that, before the end of each financial year, the directors adopt an
annual budget for the following financial year.
8.2 BUSINESS PLAN
The Company and each Shareholder must use all reasonable endeavours to
ensure that, before the end of each financial year, the directors adopt a
business plan for the Company Group which must include, but is not limited
to, information relating to the following:
(a) business strategy;
(b) product and service strategy;
(c) pricing policy;
(d) personnel policy and hiring plans;
(e) financing requirements for working capital, investment and expansion;
(f) profit objectives; and
(g) a marketing plan.
PART 9
DIVIDEND POLICY
9.1 DIVIDEND POLICY
Subject to a decision of the directors under clause 6.5(b)(14) to the
contrary, the Company must distribute 50% of the consolidated net income
after tax and minority interests of the Company as a dividend to the
Shareholders.
PART 10
MANAGEMENT OF THE COMPANY GROUP
10.1 MANAGING DIRECTOR'S RESPONSIBILITIES
The managing director of the Company is responsible for the day to day
management of the Company, subject to clause 6.5 and to the instructions of
the Board.
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10.2 GENERAL MANAGEMENT - BOARD
(a) Subject to clause 6.5, decisions which are not part of the day to day
management of the Company must be made at meetings of the directors.
(b) Any director may make a submission to the Board specifying matters
which are not within the day to day management of the Company.
10.3 CONDUCT OF BUSINESS
The Company must ensure that, and each Shareholder must use its reasonable
endeavours to ensure that, the Company Group:
(a) MAINTAINS PROPERTY: keeps its property in good working order and
condition (reasonable fair wear and tear excepted) and makes any
necessary repairs and replacements;
(b) COMPLY WITH AGREEMENTS: complies with all agreements to which it is a
party;
(c) INSURANCE:
(1) insures and keeps insured the assets of the Company Group which
are of an insurable nature against damage, destruction and any
other risk the Shareholders may require, to their full
replacement value and on a re-instatement basis;
(2) takes out and keeps in force workers' compensation, public risk,
business interruption and any other risk insurance to the extent
and for the amounts the Shareholders may reasonably require; and
(3) if the Shareholders do not make any requirement of the Company
Group under clauses 10.3(c)(1) or (2), takes out and keeps in
force insurance in amounts and against risks that a company
holding assets and carrying on a business similar to that of the
Company Group would prudently insure for and against;
(d) GOVERNMENT REQUIREMENTS: complies with the requirements of any
Governmental Agency relating to the conduct of the Business and its
assets;
(e) CORPORATE EXISTENCE: maintains its corporate existence; and
(f) BUDGET AND BUSINESS PLAN: conducts the Business in accordance with the
Budget and the current business plan adopted under clause 8.2.
10.4 MAINTENANCE OF RECORDS
The Company must ensure that, and each Shareholder must use its reasonable
endeavours to ensure that, the Company Group:
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(a) BOOKS AND RECORDS: maintains books and records in accordance with
applicable law including, but not limited to, the Corporations Law and
the Income Tax Assessment Xxx 0000 (Cth);
(b) CONSOLIDATION OF ACCOUNTS: maintains books and records which enable a
Shareholder to incorporate the Company Group's financial results in
its accounts so as to comply with any applicable law and generally
accepted accounting practices and principles; and
(c) PROVIDE FOR TAXES: makes, to the extent it is lawfully able to do so,
provision in its accounts for all taxes payable under the Income Tax
Assessment Xxx 0000 (Cth) as they are incurred after deducting any
taxation credits arising from losses and adjustments in previous
years, so that no provision is required in the accounts of the Company
Group for losses to be carried forward or set-off against profits in
future years.
10.5 UNITED STATES FOREIGN CORRUPT PRACTICES ACT
(a) The Company must ensure that, and each Shareholder must use its
reasonable endeavours to ensure that, neither:
(1) the Company;
(2) any member of the Company Group;
(3) any officer, director, employee or agent of the Company; nor
(4) any officer, director, employee or agent of any member of the
Company Group,
either:
(5) offers a gift, promises to pay or authorises the payment of money
or anything of value to:
(A) any officer, employee or agent of any Government Agency;
(B) any political party;
(C) any officer, official or member of a political party;
(D) any candidate for elected office; or
(E) any person knowing that all or a portion of such gift, money
or thing of value would be given directly or indirectly to
any person referred to in paragraphs (A) to (D),
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for the purposes of influencing any act or decision of that
officer, employee, agent, political party, official, member,
candidate or person in his or her official position.
(b) The Shareholders must not offer a gift, promise to pay or authorise
the payment of money or anything of value to:
(1) any officer, employee or agent of any Government Agency;
(2) any political party;
(3) any officer, official or member of a political party;
(4) any candidate for elected office; or
(5) any person knowing that all or a portion of such gift, money or
thing of value would be given directly or indirectly to any
person referred to in paragraphs (1) to (4).
for the purposes of influencing any act or decision of that officer,
employee, agent, political party, official, member, candidate or
person in his or her official position.
(c) Clauses 10.5(a) and 10.5(b) do not apply:
(1) if anything of value is given to any of the persons listed in
clauses 10.5(a)(5)(A) to (E) or clauses 10.5(b)(1) to (5) to
facilitate, expedite or secure the performance of a routine
action by a Governmental Agency including, without limitation,
the granting of permits or licences or processing of papers but
does not include the awarding of any new business;
(2) if anything of value is given to any of the persons listed in
clauses 10.5(a)(5)(A) to (E) or clauses 10.5(b)(1) to (5), if it
is lawful in the jurisdiction in which it occurs; or
(3) to the payment of any bona fide travel and other expense for
promotional services.
(d) If there are any amendments to the United States Foreign Corrupt
Practices Act, the Shareholders must negotiate in good faith to agree
an amendment to this clause 10.5 to conform this clause 10.5 with the
amendments to the United States Foreign Corrupt Practices Act.
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PART 11
PERSONNEL AND EQUIPMENT
11.1 COMPANY DECISIONS
Subject to clause 6.5 and to any decision of the Board to the contrary, the
Company may arrange for the Company Group as it considers necessary for:
(a) the acquisition of goods and services (whether by lease or purchase or
from a Shareholder); and
(b) the hiring of personnel.
11.2 EQUITY INCENTIVE PLAN
The Company must adopt and implement an equity incentive plan for senior
managers employed by the Company Group on the terms agreed by the Founding
Shareholders, MBO Partners and Xxxxx under clause 2.1(d) of the MBO
Agreement and clause 2.1(d) of the Xxxxx Agreement prior to the
Commencement Date.
PART 12
PROVISION OF INFORMATION
12.1 PERIODIC REPORTS
The Company must ensure that, and each Shareholder must use its reasonable
endeavours to ensure that, the Company Group makes available for inspection
by the directors and any Shareholder that has not appointed a director who
is in office, all information concerning the Business and the operations of
the Company Group including, but not limited to, the following reports in
reasonable detail:
(a) as soon as practicable but in any event no later than 75 days after
the end of each financial year, a profit and loss statement and
balance sheet for the Company for that financial year audited by the
Auditors;
(b) as soon as practicable but in any event no later than 75 days after
the end of each financial year, a consolidated profit and loss
statement and balance sheet for the Company Group for that financial
year audited by the Auditors;
(c) within 21 days after the end of each month which is the last month in
a Quarter and within 30 days after the end of each other month during
the period from the Commencement Date to 30 June 1996:
(1) for the Company and each of its wholly owned Subsidiaries other
than Xxxxxxxx Refrigeration Pty Limited and QAL National
Refrigeration Pty Limited:
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(A) an unaudited consolidated income statement for that month;
(B) an unaudited consolidated income statement for the current
financial year to date;
(C) an unaudited consolidated balance sheet as at the end of
that month; and
(D) a brief narrative explanation of the results for that month;
and
(2) for the Company's partially owned Subsidiaries and Xxxxxxxx
Refrigeration Pty Limited and QAL National Refrigeration Pty
Limited:
(A) summary financial information including sales, estimated
EBIT and estimated net income for that month; and
(B) summary financial information including sales, estimated
EBIT and estimated net income for the current financial year
to date,
each prepared in accordance with generally accepted accounting
principles consistently applied;
(d) within 21 days after the end of each month which is the last month in
a Quarter and within 30 days after the end of each other month during
the period from 1 July 1996 to 30 June 1997, monthly consolidated
management accounts for the Company and its wholly owned and partially
owned Subsidiaries including the following:
(1) an unaudited income statement for that month with a comparison to
the Budget for that month;
(2) an unaudited income statement for the current financial year to
date with a comparison to the Budget for that period;
(3) an unaudited balance sheet as at the end of that month;
(4) if the month is the last month of a Quarter, an unaudited cash
flow statement; and
(5) a brief narrative explanation of the results for that month,
each prepared in accordance with generally accepted accounting
principles consistently applied;
(e) within 21 days after the end of each month which is the last month in
a Quarter and within 30 days after the end of each other month
commencing with the month of July 1997, monthly consolidated
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management accounts for the Company and its wholly owned and partially
owned Subsidiaries including the following:
(1) an unaudited income statement for that month with a comparison
to:
(A) the same month in the prior financial year; and
(B) the Budget for that month;
(2) an unaudited income statement for the current financial year to
date with a comparison to:
(A) the same year to date period in the prior financial year;
and
(B) the Budget for that period;
(3) an unaudited balance sheet as at the end of that month;
(4) if the month is the last month of a Quarter, an unaudited cash
flow statement; and
(5) a brief narrative explanation of the results for that month,
each prepared in accordance with generally accepted accounting
principles consistently applied; and
(f) any information requested by a director to enable the Company or any
Shareholder (at its cost) to satisfy any local or overseas reporting
requirement to any Governmental Agency or regulatory body which has
jurisdiction over the Company or Shareholder.
12.2 AUDIT
The Company must ensure that the accounts of each member of the Company
Group are audited annually by the Auditor as soon as practicable but in any
event no later than 75 days after the end of the financial year of the
relevant member.
12.3 ACCESS TO INFORMATION
At all reasonable times and as often as is reasonable, the Company must
procure the Company Group upon reasonable notice to permit any director,
Shareholder or Shareholder's representative to:
(a) inspect any property of the Company Group;
(b) inspect and take copies of any document relating to the Business,
including its accounts; and
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(c) discuss the Company Group's affairs, finances and accounts with the
Company Group's officers and Auditor.
PART 13
CONFIDENTIALITY AND PUBLICITY
13.1 CONFIDENTIALITY
Subject to clause 13.2, no party may:
(a) disclose any Confidential Information;
(b) use any Confidential Information in any manner which may cause or be
calculated to cause loss to the Company or the other Shareholders; or
(c) make any public announcement or issue any press release regarding this
agreement or the transactions contemplated by it,
and each party must use its best endeavours to ensure that none of its
auditors, officers, employees or agents:
(d) disclose any Confidential Information;
(e) use any Confidential Information in any manner which may cause or be
calculated to cause loss to the Company or the other Shareholders; or
(f) make any public announcement or issue any press release regarding this
agreement or the transaction contemplated by it.
13.2 PERMITTED DISCLOSURE
A party may disclose, and may permit its auditor, officers, employees and
agents to disclose, any Confidential Information:
(a) with the prior written consent of all the other parties;
(b) if it is required to do so by law or any agreement binding on the
party or by any recognised stock exchange on which its or its Holding
Company's shares are listed;
(c) if the Confidential Information has come within the public domain,
other than by a breach of this part 13 by any party;
(d) subject to clause 13.3, to the party's banker or professional
advisers;
(e) subject to clause 13.3, to a prospective purchaser of any Shares; and
(f) if it is required to do so by a Governmental Agency,
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but in the case of public announcements and press releases only, 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.
13.3 DISCLOSURE TO PROSPECTIVE PURCHASER
Any party that makes or permits a disclosure of Confidential Information
under clauses 13.2(e) must ensure that the prospective purchaser first
enters into a deed or an agreement with the parties whereby it agrees to
comply with provisions similar to those contained in this part 13, amended
as required.
13.4 DISCLOSURE BY DIRECTOR
A director may disclose Confidential Information to the Shareholder or
Shareholders that appointed the director.
PART 14
NOTICE OF SALE
14.1 NOTICE OF SALE
A Shareholder which wants to Dispose of any Shares other than under clause
3.4 must serve a Notice of Sale on each Shareholder specifying:
(a) the number of Sale Shares and the sale price per share in Australian
dollars;
(b) if an offer has been made to the Seller Shareholder by a Third Party,
the name of the Third Party;
(c) any other terms of the proposed Disposal; and
(d) a statement to the effect that each Shareholder has an option either:
(1) to purchase the Sale Shares on the terms set out in the Notice of
Sale if the Shareholder complies with clause 15.1; or
(2) if an offer has been made to the Seller Shareholder by a Third
Party and no Shareholder exercises the option set out in clause
14.1(d)(1), to require the Seller Shareholder to procure the
Third Party to purchase the Sale Percentage of the Shareholder's
Shares if the Shareholder complies with part 16.
14.2 THIRD PARTY
A Third Party must not be a Competitor.
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PART 15
RIGHT OF FIRST REFUSAL
15.1 EXERCISE OF SHAREHOLDER'S OPTION TO PURCHASE SALE SHARES
(a) Each Shareholder may exercise its option referred to in clause
14.1(d)(1) to purchase the Sale Shares by giving notice to the Company
and the Seller Shareholder of the number of Sale Shares it wishes to
buy within 10 Business Days after the date of service of the Notice of
Sale.
(b) If a Shareholder exercises its option to purchase Sale Shares then the
Seller Shareholder must sell to that Shareholder the number of Sale
Shares allocated to that Shareholder under clause 15.2 and the
Shareholder must purchase them on the terms set out in the Notice of
Sale.
15.2 ALLOCATION OF SALE SHARES
(a) If the Seller Shareholder receives offers for equal to or less than
the number of Sale Shares the Seller Shareholder must sell to each
Offeree Shareholder the number of Sale Shares that Offeree Shareholder
has offered to buy.
(b) If the Seller Shareholder receives offers to acquire more Shares than
the number of Sale Shares, then subject to clause 15.2(d) the number
of Sale Shares each Offeree Shareholder is entitled to acquire is:
ONS x SS = N
TNS
where:
"ONS" means the number of Shares held by the Offeree Shareholder
immediately before the service of the Notice of Sale;
"TNS" means the number of Shares held by all Offeree Shareholders
immediately before the service of the Notice of Sale;
"SS" means the number of Sale Shares; and
"N" means the number of Shares that each Offeree Shareholder is
entitled to acquire.
(c) Any remaining Sale Shares that have not been allocated after the
application of clause 15.2(b) because an individual Offeree
Shareholder does not wish to buy the full number of Shares allocated
to that Offeree Shareholder under clause 15.2(b), are allocated,
subject to clause 15.2(d) as follows:
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ONS x RSS = N
TNS
where:
"ONS" means the number of Shares held by the Offeree Shareholder
immediately before the service of the Notice of Sale;
"TNS" means the number of Shares held immediately before the service
of the Notice of Sale by all Offeree Shareholders which have been
allocated less than the number of Sale Shares indicated in the Offeree
Shareholder's notice;
"RSS" means the remaining number of Sale Shares which have not been
already allocated to Offeree Shareholders after the application of the
formula set out in clause 15.2(b); and
"N" means the number of Shares that each Offeree Shareholder is
entitled to acquire.
(d) If the number of Sale Shares to be acquired by an Offeree Shareholder
calculated by applying the formula is more than the number of Sale
Shares that Offeree Shareholder has offered to buy then that Offeree
Shareholder will acquire only the number of Sale Shares that it has
offered to buy.
(e) The Company must apply the formulae in clauses 15.2(b) and 15.2(c) to
determine the entitlement of each Offeree Shareholder.
(f) The Company must repeat the application of the formula in clause
15.2(c) until all Sale Shares are allocated.
(g) If a fraction results from the application of the formulae in clauses
15.2(b) or 15.2(c) the fraction will be rounded up or down as
determined by the Company.
(h) The Company must notify in writing the Seller Shareholder and each
Offeree of the number of Sale Shares to which each Offeree is
entitled.
(i) Within 20 Business Days after the date of service of the Notice of
Sale:
(1) the Seller Shareholder must give:
(A) each Offeree Shareholder a transfer of the relevant number
of Sale Shares executed by the Seller Shareholder; and
(B) the Company the share certificates for the Sale Shares; and
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(2) in exchange for the transfer referred to in clause 15.2(i)(1)(A),
the Offeree Shareholder must pay to the Seller Shareholder the
purchase price for the relevant Sale Shares.
15.3 SALE SHARES NOT PURCHASED BY SHAREHOLDERS
(a) The Seller Shareholder may sell any Sale Shares not purchased by the
other Shareholders to the Third Party or any other third party.
(b) The Seller Shareholder must not sell the Sale Shares:
(1) for a purchase price less than the price specified in the Notice
of Sale; or
(2) on terms more beneficial to the buyer than those set out in the
Notice of Sale.
(c) The Seller Shareholder must give a copy of any agreement with the
buyer named in the Notice of Sale relating to the Sale Shares to each
Shareholder within 3 days after execution of the agreement.
15.4 NOTICE OF NON-EXERCISE
If all the Shareholders fail to exercise the option referred to in clause
14.1(d)(1) within the period specified in clause 15.1, the Company must
give notice to the Shareholders of that failure to exercise.
PART 16
TAG ALONG RIGHTS
16.1 EXERCISE OF SHAREHOLDER'S OPTION TO PURCHASE SALE SHARES
(a) Subject to clause 16.1(b), each Shareholder may exercise its option
referred to in clause 14.1(d)(2) to require the Seller Shareholder to
procure the Third Party to purchase the Sale Percentage of the
Shareholder's Shares by giving notice to the Company and the Seller
Shareholder of exercise within 10 Business Days after the date of
service of the Notice of Non-Exercise.
(b) The option referred to in clause 14.1(d)(2) is only exercisable by a
Shareholder upon receipt of a Notice of Non-Exercise.
16.2 OBLIGATION OF THE SELLER SHAREHOLDER
(a) If an Exercising Shareholder gives a Notice of Exercise, the Seller
Shareholder must use its best endeavours to procure the Third Party to
purchase the Sale Percentage of the Exercising Shareholder's Shares at
the Sale Share Price for each Share.
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(b) If the Third Party refuses to purchase the Shares of the Exercising
Shareholder, then the Seller Shareholder must not sell the Sale Shares
to the Third Party.
16.3 FAILURE TO TRANSFER SHARES
If for any reason the Exercising Shareholder does not transfer its Shares
to the Third Party, then:
(a) the Notice of Exercise is deemed to be withdrawn by the Exercising
Shareholder; and
(b) each party is in the position it would have been in if the Notice of
Exercise was never issued.
16.4 COMPLETION OF SALE TO THIRD PARTY
(a) The Exercising Shareholder must complete any sale to the Third Party
at the time and in the manner agreed with the Third Party.
(b) The Seller Shareholder must ensure that the Third Party gives to the
Exercising Shareholder the full details of the settlement requirements
in writing.
(c) If there is more than one Exercising Shareholder, completion of the
sale of the Shares by each Exercising Shareholder to the Third Party
must occur at the same time as each other and at the same time as that
of the Seller Shareholder.
16.5 MAJORITY PURCHASER
(a) Despite any other provision of this agreement, if as a result of a
proposed Disposal of any Shares to a person:
(1) that person;
(2) a Related Corporation of that person; or
(3) a person associated with that person,
would acquire or take that person to a majority interest in the
Company, each Shareholder grants an irrevocable option to each other
Shareholder to permit each Shareholder which holds a minority interest
in the Company to require the Shareholder which proposes to Dispose of
any Shares to the Majority Purchaser to procure the Majority Purchaser
to purchase all the Shares of the Minority Shareholder.
(b) The Disposing Shareholder must give notice to each Shareholder of any
proposed Disposal of Shares to the Majority Purchaser.
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(c) The Minority Shareholder may exercise the option referred to in clause
16.5(a) by giving a notice of exercise to the Company and the
Disposing Shareholder within 10 Business Days of receipt of the notice
under clause 16.5(b).
(d) If a Minority Shareholder gives a notice of exercise under clause
16.5(c), the Disposing Shareholder must use its best endeavours to
procure the Majority Purchaser to purchase all the Shares of the
Minority Shareholder at a price per share equal to the highest price
per share paid at any time by the Majority Purchaser, any Related
Corporation of the Majority Purchaser or any person associated with
the Majority Purchaser for any Shares.
(e) If the Majority Purchaser refuses to purchase all the Shares of the
Minority Shareholder, then the Disposing Shareholder must not Dispose
of any Shares to the Majority Purchaser.
(f) If for any reason the Minority Shareholder does not transfer its
Shares to the Majority Purchaser, then:
(1) the notice of exercise referred to in clause 16.5(c) is deemed to
be withdrawn by the Minority Shareholder; and
(2) each party is in the position it would have been in if the notice
of exercise was never issued.
(g) The Minority Shareholder must complete any sale to the Majority
Purchaser at the time and in the manner agreed with the Majority
Purchaser.
(h) The Disposing Shareholder must ensure that the Majority Purchaser
gives to the Minority Shareholder the full details of the settlement
requirements in writing.
(i) If there is more than one Minority Shareholder which exercises the
option under clause 16.5(a), completion of the sale of the Shares by
each Minority Shareholder to the Majority Purchaser must occur at the
same time as each other and at the same time as that of the Disposing
Shareholder.
PART 17
NEW SHAREHOLDERS
17.1 DISPOSAL OF SHARES
A Shareholder which Disposes of Shares to anyone other than another
Shareholder must ensure that the transferee, before registration of the
transfer of the Shares, enters into an agreement with the other parties
agreeing to be bound by this agreement as if named as a party and a
Shareholder, amended as reasonably required by the other Shareholders.
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17.2 ISSUE OF SECURITIES
If the Company issues any Securities to anyone other than another
Shareholder it must, before issue, ensure that the person to whom the
Securities are issued enters into an agreement with the other parties
agreeing to be bound by this agreement as if named as a party and a
Shareholder, amended as reasonably required by the Shareholders.
17.3 EQUITY INCENTIVE PLAN
Clauses 17.1 and 17.2 apply to any Disposals of Shares or issues of
Securities under the equity incentive plan referred to in clause 11.2.
17.4 FOUNDING SHAREHOLDERS
A Shareholder which Disposes of Shares under clause 3.4(b) to anyone other
than a Shareholder must ensure that the transferee, before registration of
the transfer of the Shares, enters into an agreement with the other parties
agreeing to be bound by this agreement as if named as a party and a
Shareholder, amended as reasonably required by the other Shareholders.
PART 18
POWER OF ATTORNEY
18.1 PURPOSE OF POWER OF ATTORNEY
The appointments of attorneys in clause 18.2 are for the purposes only of
any of the transactions contemplated by parts 15 and 16 and take effect
from the Commencement Date.
18.2 POWER OF ATTORNEY
In consideration of, among other things, the mutual promises contained in
parts 15 and 16:
(a) each Shareholder irrevocably appoints the other Shareholders severally
as its attorney to complete and execute (under hand or under seal)
such instruments for and on its behalf as the attorney thinks
necessary or desirable to give effect to any of the transactions
contemplated by parts 15 and 16;
(b) each appointor agrees to ratify and confirm whatever the attorney
lawfully does, or causes to be done, under the appointment;
(c) each appointor agrees to indemnify the attorney against all claims,
demands, costs, charges, expenses, outgoings, losses and liabilities
arising in any way in connection with the lawful exercise of all or
any of the attorney's powers and authorities under that appointment;
and
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(d) each appointor agrees to deliver to the Company on demand any power of
attorney, instrument of transfer or other instruments as the Company
may require for the purposes of any of the transactions contemplated
by parts 15 and 16.
PART 19
COMPETITION
19.1 UNDERTAKINGS
(a) For the purposes of clause 19.1(b) the expression "competitive with
the Business" includes (but is not limited to) competition in a small
part of the Business or mere competition in peripheral products or
lines of business.
(b) A Shareholder must not do, and must ensure that none of its Related
Corporations does, any of the following without first obtaining the
written consent of each other Shareholder:
(1) directly or indirectly carry on (whether alone or in partnership
or joint venture with anyone else) or otherwise be concerned with
or interested in (whether as trustee, principal, agent,
shareholder, unit holder or in any other capacity) any business
similar to or competitive with the Business in Australia for 3
years after the later of the Commencement Date or the party
ceasing to be a Shareholder;
(2) solicit or persuade any person or corporation which is a customer
or client of the Company Group, to cease doing business with the
Company Group or reduce the amount of business which the customer
or client would normally do with the Company Group for 3 years
after the later of the Commencement Date or the party ceasing to
be a Shareholder;
(3) accept from a customer or client referred to in clause 19.1(b)(2)
any business of the kind ordinarily forming part of the Business
for 3 years after the later of the Commencement Date or the party
ceasing to be a Shareholder; or
(4) at any time induce or attempt to induce any person who is at the
time of Completion or who later becomes an employee of the
Company Group to terminate his or her employment with the Company
Group.
19.2 SEPARATE UNDERTAKINGS
If any part of an undertaking in clause 19.1 is unenforceable, it may be
severed without affecting the remaining enforceability of that or the other
undertakings.
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19.3 VALUE OF THE SHARES AND THE BUSINESS
Each Shareholder agrees that:
(a) any failure to comply with clause 19.1 would diminish the value of the
Shares and the Business; and
(b) the restrictive undertakings in clause 19.1(b) are reasonable and
necessary for the protection of the Shares and the Business and must
be given full effect.
19.4 LEGAL ADVICE
Each Shareholder acknowledges that in relation to this agreement and in
particular this part 19 it has received legal advice or has had the
opportunity of obtaining legal advice.
19.5 INJUNCTION
Each Shareholder acknowledges that monetary damages alone would not be
adequate compensation to the Company and each other Shareholder for a
breach of clause 19.1 and that the Company is entitled to seek an
injunction from a court of competent jurisdiction if:
(a) a Shareholder fails to comply or threatens to fail to comply with
clause 19.1; or
(b) the Company has reason to believe a Shareholder will not comply with
clause 19.1.
PART 20
PUBLIC LISTING
20.1 ASX APPROVAL FOR LISTING
The Shareholders must use their best endeavours to procure by no later than
5 years or such longer period as the Shareholders may agree from the
Commencement Date:
(a) a formal statement from the ASX of the terms and conditions upon and
subject to the satisfaction of which the ASX will approve:
(1) the admission of the Company to the official list of the ASX; and
(2) the listing of the Shares for official quotation on the main
board of the ASX; or
(b) an equivalent statement from any other recognised stock exchange
agreed by the Shareholders.
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20.2 APPLICATION FOR ASX LISTING
If the Company receives a formal statement from the ASX under clause
20.1(a) or an equivalent statement from any other agreed recognised stock
exchange under clause 20.1(b), the Shareholders must do all acts, matters
and things within their power that may be necessary to satisfy the
reasonable terms and conditions for admission and listing prescribed by the
formal statement.
20.3 FAILURE TO LIST
If the Shareholders fail to obtain a formal statement from the ASX under
clause 20.1(a) or an equivalent statement from any other agreed recognised
stock exchange under clause 20.1(b) within 5 years from the Commencement
Date, the Shareholders must negotiate in good faith to determine, agree and
implement alternative mechanisms for the realisation of their investment in
the Company including, without limitation, a trade sale or a leveraged
recapitalisation.
20.4 TERMINATION OF THIS AGREEMENT
This agreement will automatically terminate upon the Company being notified
by the ASX or the agreed recognised stock exchange of the Listing.
PART 21
LOBIKE GUARANTEE AND INDEMNITY
21.1 GUARANTEE
XxXxxxxx unconditionally and irrevocably guarantees to MBO and Xxxxx the
performance of the obligations under this agreement of Lobike and any of
its permitted assigns under clause 3.4(b).
21.2 PERFORMANCE
If Lobike fails to perform its obligations under this agreement when they
are due, XxXxxxxx must immediately on demand from MBO or Xxxxx cause Lobike
to perform its obligations under this agreement.
21.3 INDEMNITY
(a) XxXxxxxx indemnifies MBO against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by MBO 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.
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(b) XxXxxxxx indemnifies Xxxxx against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by Xxxxx 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.
21.4 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 21 applies:
(1) to the present and future obligations of Lobike under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the approval of XxXxxxxx.
(b) The obligations of XxXxxxxx under this part 21 extend to any change in
the obligations of Lobike as a result of any amendment, supplement,
renewal or replacement of any agreement to which XxXxxxxx has agreed.
(c) This part 21 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.
(d) This clause 21.4 applies:
(1) regardless of whether XxXxxxxx is aware of or has consented to or
are given notice of any amendment, supplement, renewal or
replacement of any agreement or the occurrence of any other
thing; and
(2) irrespective of any rule of law or equity to the contrary.
21.5 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting any obligation of Lobike 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 XxXxxxxx under this part 21 and any Power is the same
as if:
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(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 21.5(a)(3),
had not been made and XxXxxxxx must immediately take all action and
sign all documents necessary or required by MBO or Xxxxx to restore to
MBO and Xxxxx this part 21 immediately before the payment, conveyance,
transfer or transaction.
(b) Clause 21.5(a) applies whether or not Lobike knew, or ought to have
known of, anything referred to in that clause.
21.6 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 21 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation.
(b) This part 21 is enforceable against XxXxxxxx:
(1) without first having recourse to any collateral securities; and
(2) whether or not MBO or Xxxxx 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.
21.7 NO COMPETITION
(a) Subject to clause 21.7(b), until the obligations of Lobike under this
agreement have been fully performed and until this part 21 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.
(b) If required by MBO or Xxxxx, XxXxxxxx must prove in any liquidation of
Lobike for all amounts owed to XxXxxxxx.
(c) All amounts recovered by XxXxxxxx from any liquidation from Lobike
must be received and held in trust by XxXxxxxx for MBO and Xxxxx to
the extent of the unsatisfied liability of XxXxxxxx under this part
21.
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21.8 CONTINUING GUARANTEE AND INDEMNITY
This part 21 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) the obligations of Lobike under this agreement have been performed;
and
(d) this part 21 has been finally discharged by MBO and Xxxxx.
PART 22
LOCANA GUARANTEE AND INDEMNITY
22.1 GUARANTEE
Xxxxx unconditionally and irrevocably guarantees to MBO and Xxxxx the
performance of the obligations under this agreement of Locana and any of
its permitted assigns under clause 3.4(b).
22.2 PERFORMANCE
If Locana fails to perform its obligations under this agreement when they
are due, Xxxxx must immediately on demand from MBO or Xxxxx cause Locana to
perform its obligations under this agreement.
22.3 INDEMNITY
(a) Xxxxx indemnifies MBO against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by MBO 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.
(b) Xxxxx indemnifies Xxxxx against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by Xxxxx in relation to:
(1) the failure of Locana to perform its obligations under this
agreement; or
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(2) the failure of Xxxxx to cause Locana to perform its obligations
under this agreement.
22.4 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 22 applies:
(1) to the present and future obligations of Locana under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the approval of Xxxxx.
(b) The obligations of Xxxxx under this part 22 extend to any change in
the obligations of Locana as a result of any amendment, supplement,
renewal or replacement of any agreement to which Xxxxx has agreed.
(c) This part 22 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.
(d) This clause 22.4 applies:
(1) regardless of whether Xxxxx is aware of or has consented to or
are given notice of any amendment, supplement, renewal or
replacement of any agreement or the occurrence of any other
thing; and
(2) irrespective of any rule of law or equity to the contrary.
22.5 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting 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 22 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 22.5(a)(3),
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had not been made and Xxxxx must immediately take all action and sign
all documents necessary or required by MBO or Xxxxx to restore to MBO
and Xxxxx this part 22 immediately before the payment, conveyance,
transfer or transaction.
(b) Clause 22.5(a) applies whether or not Locana knew, or ought to have
known of, anything referred to in that clause.
22.6 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 22 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation.
(b) This part 22 is enforceable against Xxxxx:
(1) without first having recourse to any collateral securities; and
(2) whether or not MBO or Xxxxx 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.
22.7 NO COMPETITION
(a) Subject to clause 22.7(b), until the obligations of Locana under this
agreement have been fully performed and until this part 22 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 MBO or Xxxxx, Xxxxx must prove in any liquidation of
Locana for all amounts owed to Xxxxx.
(c) All amounts recovered by Xxxxx from any liquidation from Locana must
be received and held in trust by Xxxxx for MBO and Xxxxx to the extent
of the unsatisfied liability of Xxxxx under this part 22.
22.8 CONTINUING GUARANTEE AND INDEMNITY
This part 22 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:
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(c) the obligations of Locana under this agreement have been performed;
and
(d) this part 22 has been finally discharged by MBO and Xxxxx.
PART 23
LOFIVA GUARANTEE AND INDEMNITY
23.1 GUARANTEE
Moon unconditionally and irrevocably guarantees to MBO and Xxxxx the
performance of the obligations under this agreement of Lofiva and any of
its permitted assigns under clause 3.4(b).
23.2 PERFORMANCE
If Lofiva fails to perform its obligations under this agreement when they
are due, Moon must immediately on demand from MBO or Xxxxx cause Lofiva to
perform its obligations under this agreement.
23.3 INDEMNITY
(a) Moon indemnifies MBO against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by MBO 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.
(b) Moon indemnifies Xxxxx against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by Xxxxx 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.
23.4 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 23 applies:
(1) to the present and future obligations of Lofiva under this
agreement; and
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(2) to this agreement, as amended, supplemented, renewed or replaced
with the approval of Moon.
(b) The obligations of Moon under this part 23 extend to any change in the
obligations of Lofiva as a result of any amendment, supplement,
renewal or replacement of any agreement to which Moon has agreed.
(c) This part 23 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.
(d) This clause 23.4 applies:
(1) regardless of whether Moon is aware of or has consented to or are
given notice of any amendment, supplement, renewal or replacement
of any agreement or the occurrence of any other thing; and
(2) irrespective of any rule of law or equity to the contrary.
23.5 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting 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 23 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 23.5(a)(3),
had not been made and Moon must immediately take all action and sign
all documents necessary or required by MBO or Xxxxx to restore to MBO
and Xxxxx this part 23 immediately before the payment, conveyance,
transfer or transaction.
(b) Clause 23.5(a) applies whether or not Lofiva knew, or ought to have
known of, anything referred to in that clause.
23.6 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 23 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation.
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(b) This part 23 is enforceable against Moon:
(1) without first having recourse to any collateral securities; and
(2) whether or not MBO or Xxxxx 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.
23.7 NO COMPETITION
(a) Subject to clause 23.7(b), until the obligations of Lofiva under this
agreement have been fully performed and until this part 23 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 MBO or Xxxxx, Moon must prove in any liquidation of
Lofiva for all amounts owed to Moon.
(c) All amounts recovered by Moon from any liquidation from Lofiva must be
received and held in trust by Moon for MBO and Xxxxx to the extent of
the unsatisfied liability of Moon under this part 23.
23.8 CONTINUING GUARANTEE AND INDEMNITY
This part 23 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) the obligations of Lofiva under this agreement have been performed;
and
(d) this part 23 has been finally discharged by MBO and Xxxxx.
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PART 24
LOGELA GUARANTEE AND INDEMNITY
24.1 GUARANTEE
Xxxxxx unconditionally and irrevocably guarantees to MBO and Xxxxx the
performance of the obligations under this agreement of Logela and any of
its permitted assigns under clause 3.4(b).
24.2 PERFORMANCE
If Logela fails to perform its obligations under this agreement when they
are due, Xxxxxx must immediately on demand from MBO or Xxxxx cause Logela
to perform its obligations under this agreement.
24.3 INDEMNITY
(a) Xxxxxx indemnifies MBO against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by MBO in relation to:
(1) the failure of Logela to perform its obligations under this
agreement; or
(2) the failure of Xxxxxx to cause Logela to perform its obligations
under this agreement.
(b) Xxxxxx indemnifies Xxxxx against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by Xxxxx in relation to:
(1) the failure of Logela to perform its obligations under this
agreement; or
(2) the failure of Xxxxxx to cause Logela to perform its obligations
under this agreement.
24.4 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 24 applies:
(1) to the present and future obligations of Logela under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the approval of Xxxxxx.
(b) The obligations of Xxxxxx under this part 24 extend to any change in
the obligations of Logela as a result of any amendment, supplement,
renewal or replacement of any agreement to which Xxxxxx has agreed.
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(c) This part 24 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.
(d) This clause 24.4 applies:
(1) regardless of whether Xxxxxx is aware of or has consented to or
are given notice of any amendment, supplement, renewal or
replacement of any agreement or the occurrence of any other
thing; and
(2) irrespective of any rule of law or equity to the contrary.
24.5 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting 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 24 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 24.5(a)(3),
had not been made and Xxxxxx must immediately take all action and sign
all documents necessary or required by MBO or Xxxxx to restore to MBO
and Xxxxx this part 24 immediately before the payment, conveyance,
transfer or transaction.
(b) Clause 24.5(a) applies whether or not Logela knew, or ought to have
known of, anything referred to in that clause.
24.6 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 24 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation.
(b) This part 24 is enforceable against Xxxxxx:
(1) without first having recourse to any collateral securities; and
(2) whether or not MBO or Xxxxx has:
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(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.
24.7 NO COMPETITION
(a) Subject to clause 24.7(b), until the obligations of Logela under this
agreement have been fully performed and until this part 24 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 MBO or Xxxxx, Xxxxxx must prove in any liquidation of
Logela for all amounts owed to Xxxxxx.
(c) All amounts recovered by Xxxxxx from any liquidation from Logela must
be received and held in trust by Xxxxxx for MBO and Xxxxx to the
extent of the unsatisfied liability of Xxxxxx under this part 24.
24.8 CONTINUING GUARANTEE AND INDEMNITY
This part 24 is a continuing obligation of Xxxxxx, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) the obligations of Logela under this agreement have been performed;
and
(d) this part 24 has been finally discharged by MBO and Xxxxx.
PART 25
XXXXXXXX NOMINEES GUARANTEE AND INDEMNITY
25.1 GUARANTEE
Xxxxxxxx unconditionally and irrevocably guarantees to MBO and Xxxxx the
performance of the obligations under this agreement of Xxxxxxxx Nominees
and any of its permitted assigns under clause 3.4(b).
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25.2 PERFORMANCE
If Xxxxxxxx Nominees fails to perform its obligations under this agreement
when they are due, Xxxxxxxx must immediately on demand from MBO or Xxxxx
cause Xxxxxxxx Nominees to perform its obligations under this agreement.
25.3 INDEMNITY
(a) Xxxxxxxx indemnifies MBO against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by MBO in relation to:
(1) the failure of Xxxxxxxx Nominees to perform its obligations under
this agreement; or
(2) the failure of Xxxxxxxx to cause Xxxxxxxx Nominees to perform its
obligations under this agreement.
(b) Xxxxxxxx indemnifies Xxxxx against any claim, action, damage, loss,
liability, cost, charge, expense, outgoing or payment suffered, paid
or incurred by Xxxxx in relation to:
(1) the failure of Xxxxxxxx Nominees to perform its obligations under
this agreement; or
(2) the failure of Xxxxxxxx to cause Xxxxxxxx Nominees to perform its
obligations under this agreement.
25.4 EXTENT OF GUARANTEE AND INDEMNITY
(a) This part 25 applies:
(1) to the present and future obligations of Xxxxxxxx Nominees under
this agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced
with the approval of Xxxxxxxx.
(b) The obligations of Xxxxxxxx under this part 25 extend to any change in
the obligations of Xxxxxxxx Nominees as a result of any amendment,
supplement, renewal or replacement of any agreement to which Xxxxxxxx
has agreed.
(c) This part 25 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.
(d) This clause 25.4 applies:
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(1) regardless of whether Xxxxxxxx is aware of or has consented to or
are given notice of any amendment, supplement, renewal or
replacement of any agreement or the occurrence of any other
thing; and
(2) irrespective of any rule of law or equity to the contrary.
25.5 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to
or affecting any obligation of Xxxxxxxx Nominees 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 Xxxxxxxx under this part 25 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 25.5(a)(3),
had not been made and Xxxxxxxx must immediately take all action and
sign all documents necessary or required by MBO or Xxxxx to restore to
MBO and Xxxxx this part 25 immediately before the payment, conveyance,
transfer or transaction.
(b) Clause 25.5(a) applies whether or not Xxxxxxxx Nominees knew, or ought
to have known of, anything referred to in that clause.
25.6 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This part 25 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation.
(b) This part 25 is enforceable against Xxxxxxxx:
(1) without first having recourse to any collateral securities; and
(2) whether or not MBO or Xxxxx has:
(A) made demand upon Xxxxxxxx Nominees; or
(B) given notice to Xxxxxxxx Nominees or any other person in
respect of any thing; or
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(C) taken any other steps against Xxxxxxxx Nominees or any other
person.
25.7 NO COMPETITION
(a) Subject to clause 25.7(b), until the obligations of Xxxxxxxx Nominees
under this agreement have been fully performed and until this part 25
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
Xxxxxxxx Nominees.
(b) If required by MBO or Xxxxx, Xxxxxxxx must prove in any liquidation of
Xxxxxxxx Nominees for all amounts owed to Xxxxxxxx.
(c) All amounts recovered by Xxxxxxxx from any liquidation from Xxxxxxxx
Nominees must be received and held in trust by Xxxxxxxx for MBO and
Xxxxx to the extent of the unsatisfied liability of Xxxxxxxx under
this part 25.
25.8 CONTINUING GUARANTEE AND INDEMNITY
This part 25 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) the obligations of Xxxxxxxx Nominees under this agreement have been
performed; and
(d) this part 25 has been finally discharged by MBO and Xxxxx.
PART 26
GENERAL
26.1 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:
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(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;
(E) if to MBO:
Address: Xxxxx 0000
Xxxxx Xxxxx
Xxxxx Xxxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Attention: Xx Xxxxxxxxx Xxxxxxx
Facsimile: 0011 852 2523 7729;
(F) if to Xxxxx:
Address: One Madison Avenue
Cadillac Michigan USA
Attention: Mr Xxxxx Xxxxxx/Xx Xxxxx Xxxxxx
Facsimile: 0011 1 616 775 3950;
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(G) if to Hill Young:
Address: Xxxxx 00
Xxxxxxxx Xxxxxxx Tower
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Attention: Xx Xxxxxxxx Xxxxxx
Facsimile: 252 2299;
(H) if to Xxxxxxxx Nominees:
Address: 00 Xxxxxxxxx Xxxx
Xxxxxxxx XXX 0000;
Attention: Mr Xxxxx Xxxxxxxx;
(I) if to XxXxxxxx:
Address: 00 Xxx Xxxxx Xxxxxx
Xxxxxxxx-Xx-Xxxxx XXX 0000;
(J) if to Xxxxx:
Address: 00 Xxxxxxxxxxx Xxxxx
Xxxxxx Xxxxx XXX 0000;
(K) if to Moon:
Address: X.X. Xxx 00
Xxxxxxxxxx XXX 0000;
(L) if to Xxxxxx:
Address: Xxxx 0000
Xxx Xxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxx XXX 0000;
(M) if to Xxxxxxxx:
Address: 00 Xxxxxxxxx Xxxx
Xxxxxxxx XXX 0000; and
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(N) if to the Company:
Address: 0 Xxxxxx Xxxxxx
Xxxxxxxxxxx XXX 0000
Attention: The Managing Director
Facsimile: To be advised,
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
(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 transmission is received or
regarded as received under clause 26.1(a)(3) and informs the sender
that it is not legible.
(c) In this clause 26.1, a reference to an addressee includes a reference
to an addressee's officers, agents or employees.
(d) Notwithstanding any other paragraph of this clause 26.1, a notice will
be deemed to be given by or to the Founding Shareholders if it is
given by or to, as the case may be, the Managing Director of the
Company at the address for service for the Company specified in clause
26.1(a)(1)(M).
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26.2 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) Each of the parties irrevocably submits to the exclusive jurisdiction
of the courts of New South Wales.
(c) Each of 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.
26.3 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of, this
agreement or any Power 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 in
that or any other jurisdiction.
(c) The application of this clause 26.3 is not limited by any other
provision of this agreement in relation to severability, prohibition
or enforceability.
26.4 WAIVERS
(a) A waiver, forbearance, abandonment, election or estoppel of, or
affecting:
(1) a term of this agreement (including this clause 26.4);
(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
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26.4(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 26.4(a)(1), (2), (3) or (4).
26.5 VARIATION
A variation of any term of this agreement must be in writing and signed by
the parties.
26.6 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the parties.
26.7 ASSIGNMENT
(a) Rights arising out of or under this agreement are not assignable by
one party without the prior written consent of every other party.
(b) A party must not withhold its consent in respect of an assignment of
rights arising out of or under this agreement related to a transfer of
Shares under clause 3.4.
26.8 FURTHER ASSURANCES
Each party must do all things and execute all further documents necessary
to give full effect to this agreement.
26.9 ENTIRE AGREEMENT
This agreement supersedes all previous agreements in respect of its subject
matter and embodies the entire agreement between the parties.
26.10 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.
26.11 STAMP DUTY
(a) A party must pay any stamp duty (including any fine or penalty) in
respect of:
(1) this agreement; and
(2) any document executed under it,
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in proportion to its holding of the Shares set out in schedule 1.
(b) Each party indemnifies the other in respect of any stamp duty payable
under clause 26.11(a).
26.12 COSTS AND EXPENSES
Subject to clause 26.11, each party must pay its own costs and expenses in
respect of the negotiation, preparation, execution, delivery and
registration of this agreement, including, but not limited to, any legal
costs and expenses and any professional consultant's fees.
26.13 RELATIONSHIP OF PARTIES
No party is the partner, agent, employee or representative of any other
party and no party has the power to incur any obligations on behalf of, or
pledge the credit of, any other party.
26.14 SURVIVAL OF PARTS
Parts 13 and 19 survive termination of this agreement.
26.15 SHADOW DIRECTORS
(a) Subject to clause 26.15(b), if the directors of the Company make any
decisions in respect of the Company Group or any member of the Company
Group other than the Company, the Company must, to the extent
permitted by law, cause the directors of the relevant other members of
the Company Group to implement those decisions.
(b) Nothing in clause 26.15(a) requires the Company to do any act, matter
or thing that may render the Company or any directors of the Company
to be a director of any other members of the Company Group either at
law or under section 60 of the Corporations Law.
(c) Notwithstanding any other provision to the contrary, if the Company is
required under this agreement to procure any other member of the
Company Group to do any act, matter or thing, the Company must not do
any act, matter or thing that may render the Company or any directors
of the Company to be a director of any other members of the Company
Group either at law or under section 60 of the Corporations Law.
(d) Notwithstanding any other provision to the contrary, if any
Shareholder is required under this agreement to procure any member of
the Company Group to do any act, matter or thing, the Shareholder must
not do any act, matter or thing that may render the Shareholder or any
directors of the Shareholder to be a director of any member of the
Company Group either at law or under section 60 of the Corporations
Law.
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SCHEDULE 1
SHARES
(Clauses 3.1 and 26.11)
SHAREHOLDER NUMBER OF SHARES PERCENTAGE OF TOTAL SHARES
Lobike Pty Ltd 5,750 11.50%
(A.C.N. 001 874 380)
as trustee for The
Xxxxxx Avenue Trust
Locana Pty Ltd 5,750 11.50%
(A.C.N. 001 874 317)
as trustee for The
Leumeah Road Trust
Lofiva Pty Ltd 5,750 11.50%
(A.C.N. 001 876 982)
as trustee for The
Sunset Place Trust
Logela Pty Ltd 5,750 11.50%
(A.C.N. 001 876 820)
as trustee for The
Xxxxxxx Road Trust
T & M Xxxxxxxx Pty 2,500 5.00%
Ltd (A.C.N. 071 527
010) as trustee for
the X X Xxxxxxxx
Family Trust
FOUNDING SHAREHOLDERS 25,500 51.00%
AND XXXXXXXX SUB-TOTAL
Refrigeration 12,127 24.254%
Investment (MBO)
Limited
Xxxxx Industrial 12,127 24.254%
Corporation
Hill Young & 246 0.492%
Associates
Limited (A.C.N.
003 977 106)
TOTAL 50,000 100.0%
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EXECUTED by the parties as an agreement:
THE COMMON SEAL of
LOBIKE PTY LTD
was affixed to this document
in the presence of:
/S/ X. XXXXXXXX /S/ X.X. XXXXXXXX
Director/Secretary Director
X. XXXXXXXX X.X. XXXXXXXX
Name (please print) Name (please print)
SIGNED for
LOCANA PTY LTD
by its attorneys
in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ J.R. XXXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX X.X. XXXXX
Name (please print) Name (please print)
SIGNED for
LOFIVA PTY LTD
by its attorneys
in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ X.X. XXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX XXXXXXX XXXX XXXX
Name (please print) Name (please print)
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SIGNED for
LOGELA PTY LTD
by its attorneys
in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ XXXXXX XXXX XXXXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX XXXXXX XXXX XXXXXX
Name (please print) Name (please print)
SIGNED for REFRIGERATION INVESTMENT
(MBO) LIMITED
by its attorney in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ XXXXXXXXX XXXXXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX XXXXXXXXX XXXXXXX
Name (please print) Name (please print)
SIGNED for XXXXX INDUSTRIAL
CORPORATION by its attorney in the
presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ XXXXX X. XXXXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX XXXXX X. XXXXXX
Name (please print) Name (please print)
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XXX XXXXXX XXXX xx
XXXX XXXXX & ASSOCIATES LIMITED
was affixed to this document
in the presence of
/S/ XXXXXXX XXXX /S/ XXX XXXXXXX XXXXXX
Director/Secretary Director
XXXXXXX XXXX XXX XXXXXXX XXXXXX
Name (please print) Name (please print)
SIGNED for
T & M XXXXXXXX NOMINEES PTY LTD
by its attorney
in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ X.X. XXXXXXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX
Name (please print) Name (please print)
SIGNED by XXXXX XXXXX
XXXXXXXX in the presence of:
/S/ X. XXXXXXXX /S/ X.X. XXXXXXXX
Witness Xxxxx Xxxxx XxXxxxxx
X. XXXXXXXX
Name (please print)
SIGNED by XXXX XXXXX
XXXXX in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ J.R. XXXXX
Witness Xxxx Xxxxx Xxxxx
XXXXXXX XXXXXX XXXXXXX
Name (please print)
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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)
SIGNED by XXXXXX XXXX
XXXXXX in the presence of:
/S/ XXXXXXX XXXXXX XXXXXXX /S/ XXXXXX XXXX XXXXXX
Witness Xxxxxx Xxxx Xxxxxx
XXXXXXX XXXXXX XXXXXXX
Name (please print)
SIGNED for XXXXX XXXX
XXXXXXXX by its attorney
in the presence of:
/S/ X.X. XxXxxxxx
/S/ XXXXXXX XXXXXX XXXXXXX /S/ X.X. XXXX
Witness Attorney
XXXXXXX XXXXXX XXXXXXX
Name (please print)
THE COMMON SEAL of
AUSTRAL REFRIGERATION PTY LTD
was affixed to this document
in the presence of:
/S/ X.X. XXXX /S/ J.R. XXXXX
Director/Secretary Director
XXXXXXX XXXX XXXX J.R. XXXXX
Name (please print) Name (please print)
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