EXHIBIT 4.15
XXXXX WORLDWIDE, FITCH WORLDWIDE, 141 WORLDWIDE AND
HEALTHWORLD NETWORK AGREEMENT
DATE: May 28, 2003
PARTIES: (1) XXXXX WORLDWIDE, INC. a corporation organized and existing
under the laws of the State of Delaware and having an office
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("BWI");
Cordiant Communications Group plc, a corporation
incorporated and existing under the laws of England and
Wales, with an address at 000-000 Xxxxxxxxxx Xxxxxxx, Xxxxxx
X0 0XX ("Cordiant"); Healthworld Corporation, a corporation
organized and existing under the laws of the state of
Delaware, having its principal place of business at 000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX
("Healthworld") (individually, a "Licensor" and collectively
hereafter referred to as the "Licensors").
(2) Xxxxxx Xxxxxxxxx Pty Limited a corporation organised and
existing under the laws of New South Wales, The
Communications Group Limited a corporation organised and
existing under the laws of New Zealand (Xxxxxx Xxxxxxxxx Pty
Ltd and The Communications Group Limited each a Xxxxx Agency
and hereinafter together referred to as the Xxxxx Agency),
X/M Pty Limited, Big Island International Pty Limited and
Patts 141 Pty Ltd each such company being a corporation
organised and existing under the laws of New South Wales
(X/M Pty Ltd, Big Island International Pty Ltd and Patts 141
Pty Ltd each a 141 Agency and hereinafter together referred
to as the 141 Agency), Healthworld Communications Group Pty
Limited (hereinafter referred to as the Healthworld Agency)
a corporation organised and existing under the laws of New
South Wales and Underline:Fitch Pty Limited (hereinafter
referred to as the Fitch Agency) a corporation organised and
existing under the laws of New South Wales, each such agency
with an address at c/- 00 Xxxxxxxx Xxxxxx, Xxxxxx, XXX, 0000
(collectively the Xxxxx
Agency, the 141 Agency, the Healthworld Agency and the Fitch
Agency hereafter referred to as the "Agency" or the
"Agencies")
RECITALS:
(A) BWI is the owner of, and has registered and applied to register (as
appropriate) the Xxxxx Name and the 141 Name and together with its Related
Companies has developed a worldwide goodwill in the Xxxxx Name and the 141
Name. Cordiant is the owner of, and has registered and applied to register
(as appropriate) the Fitch Name and together with its Related Companies has
developed a worldwide goodwill in the Fitch Name. Healthworld is empowered
by the owner of the Healthworld name, Healthworld B.V. to license, and has
registered and applied to register (as appropriate) the Healthworld Name
and together with its Related Companies has developed a worldwide goodwill
in the Healthworld Name (the Xxxxx Name, 141 Name, Fitch Name and
Healthworld Name hereafter collectively referred to as the "Name(s)").
(B) The Xxxxx Agency wishes to include the name Xxxxx as part of its trading
name and has agreed that the use of the name Xxxxx, as well as any other
use of the Xxxxx Name shall be subject to the Xxxxx Agency's strict
compliance with the terms of this Agreement. The 141 Agency wishes to
include the name 141 as part of its trading name and has agreed that the
use of the name 141, as well as any other use of the 141 Name shall be
subject to the 141 Agency's strict compliance with the terms of this
Agreement. The Fitch Agency wishes to include the name Fitch as part of its
trading name and has agreed that the use of the name Fitch, as well as any
other use of the Fitch Name shall be subject to the Fitch Agency's strict
compliance with the terms of this Agreement. The Healthworld Agency wishes
to include the name Healthworld as part of its trading name and has agreed
that the use of the name Healthworld, as well as any other use of the
Healthworld Name shall be subject to the Healthworld Agency's strict
compliance with the terms of this Agreement.
AGREEMENT:
1. In this Agreement the following terms and expressions shall bear the
meanings respectively ascribed thereto as follows:
"Related Companies" shall mean in relation to each of the parties
hereto all or
any of:
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(i) a subsidiary of that party, in which the
party owns or controls, whether by contract or
otherwise, a majority of the shares or votes
necessary to elect a majority of the board of
directors or other managing body of that
subsidiary;
(ii) a holding company of that party, which owns
the party or controls, whether by contract or
otherwise, a majority of the shares or votes
necessary to elect a majority of the board of
directors or other managing body of that party;
(iii) a subsidiary (as defined in (i) above) of
a holding company (as defined in (ii) above) of
that party;
(iv) a body corporate or business, with respect
to which that party (or any person connected to
such party) controls, whether by contract or
otherwise, a majority of the board of directors
or other managing body of that body corporate or
business;
"Healthworld Advertising
Services" means advertising, marketing, promotional,
medical education and media services provided by
advertising agencies to clients and such other
additional related services as may be agreed by
Healthworld in writing to constitute Healthworld
Advertising Services from time to time.
"BWI Advertising
Services" means advertising, marketing and media services
(other than promotional and "below-the-line"
services) provided by advertising agencies to
clients and such other additional related
services as may be agreed by BWI in writing to
constitute BWI Advertising Services from time to
time.
"Promotional Services" means promotional and other "below the line"
services (excluding advertising and media
services) provided by advertising agencies to
clients and such other additional
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related services as may be agreed by BWI in
writing to constitute Promotional Services from
time to time.
"Design Services" means graphic design, interiors, internet,
packaging, branding, product naming, trend
analysis, architecture, live design event
planning and corporate reporting services
provided by companies to clients and such other
additional related services as may be agreed by
Cordiant in writing to constitute Design
Services from time to time.
the "Territory" means:
(a) in respect of the Fitch Name, Australia,
New Zealand, Malaysia, Singapore and
Hong Kong; and
(b) in respect of all other Names, Australia
and New Zealand.
the "Xxxxx Name" means the name Xxxxx and all the other
associated trademarks, service marks, trade
names and logos set out on Schedule I, in the
forms and lettering styles initially as set out
in Schedule II and as the same may be varied or
amended from time to time by notice in writing
by BWI.
the "141 Name" means the name 141 and all the other associated
trademarks, service marks, trade names and logos
set out on Schedule III, in the forms and
lettering styles initially as set out in
Schedule IV and as the same may be varied or
amended from time to time by notice in writing
by BWI.
the "Fitch Name" means the name Fitch and all the other
associated trademarks, service marks, trade
names and logos set out on Schedule V, in the
forms and lettering styles initially as set out
in Schedule VI and as the same may be varied or
amended from time to time by notice in writing
by Cordiant.
the "Healthworld
Name" means the names Healthworld and all the other
associated trademarks, service marks, trade
names and logos set out on Schedule VII, in the
forms and lettering styles initially as set out
in Schedule VIII and as the same may be varied
or amended from time to time by notice in
writing by Healthworld.
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the "Network" shall mean any of the networks of agencies
referred to individually as the Xxxxx Worldwide
Network, the 141 Worldwide Network, the Fitch
Worldwide Network or the Healthworld Network (as
applicable), and a "Network Member" shall mean
an agency which is a member of the applicable
Network, and references to "the Network" shall
include each and every member of a Network from
time to time.
"d/b/a" a trade name used by a company, as distinct from
an official corporate name.
2. LICENSE GRANTED
2.1 (a) BWI hereby grants to the Xxxxx Agency for the term of this
Agreement in the Territory an exclusive non-assignable license to
use the Xxxxx Name, in connection with BWI Advertising Services
provided by the Xxxxx Agency, and to use the name Xxxxx as part
of its trading name and to use the name Xxxxx, without any other
word, letter, number or symbol, as its official corporate name,
but always in conjunction with the Xxxxx Agency's name, and to
indicate that the Xxxxx Agency is a member of the Xxxxx Worldwide
Network; and the Xxxxx Agency undertakes to use the Xxxxx Name
only in such manner and in accordance with the Xxxxx Network's
corporate and style guidelines.
Xxxxx Agency understands that this licence confers no ownership
rights, and it agrees not to contest at any time the validity or
ownership of, and rights to, the Xxxxx Name by BWI. Xxxxx Agency
understands and agrees that every use of the Xxxxx Name shall
inure only to the benefit of BWI. The Xxxxx Agency agrees that it
will not trade under a name other than the Xxxxx Name, without
the prior written consent of BWI, such consent not to be
unreasonably withheld. The Xxxxx Agency agrees to act in good
faith and to co-operate with BWI to maintain and strengthen the
reputation of the Xxxxx Name and logo in the Territory and agrees
that the Agency will support and use the Xxxxx Name and logo in
the Territory in compliance with the terms of this agreement.
(b) Subject to clause 2.8, BWI hereby grants to the 141 Agency for
the term of this Agreement in the Territory an exclusive
non-assignable license to use the 141 Name, in connection with
Promotional Services provided by the 141 Agency, and to use the
name 141 as part of its trading name and to use the name 141,
without any other word, letter, number or symbol, as its official
corporate name, but always in conjunction with the 141 Agency's
name, and to indicate that the 141 Agency is a member of the 141
Worldwide Network; and the 141 Agency
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undertakes to use the 141 Name only in such manner, and in
accordance with 141 Network's corporate and style guidelines.
141 Agency understands that this licence confers no ownership
rights, and it agrees not to contest at any time the validity or
ownership of, and rights to, the 141 Name by BWI. 141 Agency
understands and agrees that every use of the 141 Name shall inure
only to the benefit of BWI. The 141 Agency agrees that it will
not trade under a name other than the 141 Name, without the prior
written consent of BWI, such consent not to be unreasonably
withheld.
(c) Subject to clause 2.9, Cordiant hereby grants to the Fitch Agency
for the term of this Agreement in the Territory a non-assignable
license to use the Fitch Name, in connection with Design Services
provided by the Fitch Agency, and to use the name Fitch as part
of its trading name and to use the name Fitch, without any other
word, letter, number or symbol, as its official corporate name,
but always in conjunction with the Fitch Agency's name, and to
indicate that the Fitch Agency is a member of the Fitch Worldwide
Network; and the Fitch Agency undertakes to use the Fitch Name
only in such manner and in accordance with the Fitch Network's
corporate and style guidelines.
Fitch Agency understands that this licence confers no ownership
rights, and it agrees not to contest at any time the validity or
ownership of, and rights to, the Fitch Name by Cordiant. Fitch
Agency understands and agrees that every use of the Fitch Name
shall inure only to the benefit of Cordiant. The Fitch Agency
agrees that it will not trade under a name other than the Fitch
Name, without the prior written consent of Cordiant, such consent
not to be unreasonably withheld.
(d) Healthworld hereby grants to the Healthworld Agency for the term
of this Agreement in the Territory an exclusive non-assignable
license to use the Name, in connection with Healthworld
Advertising Services provided by the Healthworld Agency, and to
use the name Healthworld as part of its trading name and to use
the name Healthworld, without any other word, letter, number or
symbol, as its official corporate name, but always in conjunction
with the Healthworld Agency's name, and to indicate that the
Healthworld Agency is a member of the Healthworld Network; and
the Healthworld Agency undertakes to use the Healthworld Name
only in such manner and in accordance with the Healthworld
Network's corporate and style guidelines .
Healthworld Agency understands that this licence confers no
ownership rights, and it agrees not to contest at any time the
validity or ownership of, and rights to, the Healthworld Name by
Healthworld. Healthworld Agency understands and agrees that every
use of the Healthworld Name shall inure only to the benefit of
Healthworld. The Healthworld Agency agrees that it will not trade
under a name other than the Healthworld Name, without the prior
written consent of Healthworld, such consent not to be
unreasonably withheld.
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2.2 In addition to the rights granted under Clause 2.1, each of the Agencies
shall during the term of this Agreement be entitled to and must in all
stationery (including but not limited to all notepaper, business cards,
letterhead, memorandum forms and other types of stationery used by the
Agency) state that the Agency is a member of the Xxxxx Worldwide Network,
the 141 Worldwide Network, the Fitch Worldwide Network or the Healthworld
Network (as applicable) such statement to be in accordance with any
applicable Network's corporate and style guidelines. An Agency will not be
required to comply with the obligation in the first sentence of this clause
2.2 in respect of the stationery held by the Agency at the date of this
Agreement, if such stationery does not comply with the requirements of the
first sentence of this clause at that date. However, when such Agency
orders any new stationery it must ensure that such new stationery complies
with the requirements of this clause 2.2. Each of the Agencies will also be
responsible for determining whether any other company identifications may
be legally necessary on such stationery in the Territory where it does
business.
2.3 If so requested by the Licensors, each of the Agencies will enter into a
registered user or other license agreement in relation to the use of the
Name licensed to such Agency, in such form as may be requested by the
corresponding Licensor (including appropriate quality control provisions)
and shall do all such things as may be reasonably requested to arrange for
such agreement to be registered at the appropriate Trade Xxxx Registry and
shall upon the termination of this Agreement do all such things as may be
necessary to arrange for cancellation of any such registrations. Each
Agency shall be responsible for the payment of all costs associated with
the foregoing
2.4 Each of the Agencies shall be entitled to use the Name licensed to it
hereunder (subject to the provisions of this Agreement) in its own
advertising and promotional materials only in accordance with the
applicable Network's corporate and style guidelines (as in place from time
to time), but subject always to the prior written approval of the
corresponding Licensor or such person as may be nominated by such Licensor
for such purposes from time to time. A copy of the style guidelines, for
each Licensor, in place as at the date of this agreement is attached as
Annexure A. Moreover, as part of the grant of this licence to use the Name
licensed to it hereunder, each Agency agrees to conduct its services in a
manner to comply with the high standards of quality rendered by like
companies in the Territory, and in particular, to follow the basic
practices of its respective Network as outlined in such Network's Working
Practices Manual (as in place from time to time). Each Agency shall
undertake all reasonable steps to ensure that such particulars are followed
and kept confidential by its employees.
2.5 The Licensors warrant that they own their respective Names in the Territory
free from encumbrances and have all rights required to licence the Names to
the Agencies in accordance with this Agreement. The Licensors further
warrant that the licensing of the Names under this Agreement does not
infringe the rights of any third party.
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2.6 The Agencies acknowledge the Licensors' exclusive ownership of the Names in
the Territory.
2.7 Each Agency will, at all times during this agreement, permit any duly
authorised representative of the Licensor to enter the Agency's premises,
upon reasonable notice, for the purpose of assessing the services provided
by the Agency in connection with the Names.
2.8 The Agencies acknowledge and agree that Campaign Palace may use the name
Cordiant in the Territory.
2.9 (a) The licence granted to the Fitch Agency to use the Fitch Name in
Australia and New Zealand is an exclusive licence. The licence granted
to the Fitch Agency to use the Fitch Name in Malaysia, Singapore and
Hong Kong is a non-exclusive licence.
(b) The Fitch Agency acknowledges and agrees that Cordiant may licence
other parties to use the Fitch Name in Malaysia, Singapore or Hong
Kong, or any where else in Asia.
(c) The parties agree that the Fitch Agency will only trade in Malaysia,
Singapore and Hong Kong through the provision of services to the
Relevant Entity under the relevant Service Agreement. Fitch Agency may
not trade or carry on business in any way in such countries other than
through the provision of services to the Relevant Entity under the
Service Agreement.
For the purpose of this Agreement, Relevant Entity means in respect of
Singapore, Malaysia and Hong Kong, the entity nominated by Cordiant.
The parties agree that on the date of this agreement, they will enter
into service agreements, on the terms of the draft agreement attached
as annexure B, provided that annexure B is the draft agreement to be
entered into in respect of Hong Kong and that agreements on terms
substantially similar to that agreement will be entered into in
respect of Malaysia and Singapore. In addition, the parties will , in
good faith, endeavour to agree a base rate card for Services to be
provided following the execution of each of the Service Agreements.
(d) The Fitch Agency acknowledges and agrees that, following the date of
this agreement, the Relevant Entities will only service the Existing
Clients of such entity and such other clients as are referred to the
entity by BWI.
2.10 An Agency may not use a Name or hold itself out as being connected in any
way with the Licensor of a Name, other than as expressly permitted in this
agreement.
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3. LICENSE FEES AND ROYALTIES
3.1 In consideration of the rights and benefits granted to the each of the
Agencies hereunder, each Agency shall pay to its corresponding Licensor: an
annual fee equal to $10 dollars per year, which shall be paid to such
Licensor annually, no later than forty-five days after each anniversary
date of this Agreement.
3.2 Payments on account of the fees set forth in Clause 3.1 above (plus GST if
applicable) shall be made as set forth above.
4. CLIENT RELATIONS
4.1.1 Subject to clause 4.9,: if an Existing Client of:
(i) BWI is, at the date of this agreement, serviced in the Territory
by an Agency, BWI will, during the term of this agreement, to the
extent reasonably within its power refer all of such clients work
in respect of BWI Advertising Services under the Xxxxx Name or
Promotional Services under the 141 Name in the Territory to such
Agency. This obligation will not apply to BWI if the Existing
Client directs BWI not to engage such Agency in respect of the
client's work in the Territory, in which circumstance BWI may
refer such clients work to any other party in the Territory.
(ii) Cordiant is serviced in the Territory by an Agency, Cordiant
will, during the term of this agreement, to the extent reasonably
within its power refer all of such clients work in the Territory
to such Agency. This obligation will not apply to Cordiant if the
Existing Client directs Cordiant not to engage such Agency in
respect of the clients work in the Territory, in which
circumstance Cordiant may refer such clients work to any other
party in the Territory.
(iii)Healthworld is serviced in the Territory by an Agency,
Healthworld will, during the term of the agreement, to the extent
reasonably within its power refer all of such clients work in
Territory to such Agency. This obligation will not apply to
Healthworld if the Existing Client directs Healthworld not to
engage such Agency in respect of the client's work in the
Territory, in which circumstance Healthworld may refer such
clients work to any other party in the Territory.
For the purpose of this agreement "Existing Client" means, in respect
of a party, a client who is retained and serviced by that party at the
date of this agreement.
4.1.2 Notwithstanding the foregoing,
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(a) Xxxxx Worldwide Network Members may from time to time refer
clients to the Xxxxx Agency in respect of their clients'
requirements for BWI Advertising Services in the Territory;
provided that they first obtain the consent of such clients and
the Xxxxx Agency, and the Xxxxx Agency may from time to time
refer clients to the Xxxxx Worldwide Network in respect of its
clients' requirement for BWI Advertising Services in territories
(other than the Territory); provided that the Xxxxx Agency first
obtains the consent of such clients and the Network Member to
whom the referral is being made;
(b) 141 Worldwide Network Members may from time to time refer clients
to the 141 Agency in respect of their clients' requirements for
Promotional Services in the Territory; provided that they first
obtain the consent of such clients and the 141 Agency, and the
141 Agency may from time to time refer such clients to the 141
Worldwide Network in respect of its clients' requirement for
Promotional Services in territories (other than the Territory);
provided that the 141 Agency first obtains the consent of such
clients and the Network Member to whom the referral is being
made;
(c) Fitch Worldwide Network Members may from time to time refer
clients to the Fitch Agency in respect of their clients'
requirements for Design Services in the Territory; provided that
they first obtain the consent of such clients and the Fitch
Agency, and the Fitch Agency may from time to time refer such
clients to the Fitch Worldwide Network in respect of its clients'
requirement for Design Services in territories (other than the
Territory); provided that the Fitch Agency first obtains the
consent of such clients and the Network Member to whom the
referral is being made. For the purpose of this clause 4.1(c),
Territory means Australia and New Zealand.; and
(d) Healthworld Network Members may from time to time refer clients
to the Healthworld Agency in respect of their clients'
requirements for Healthworld Advertising Services in the
Territory; provided that they first obtain the consent of such
clients and the Healthworld Agency, and the Healthworld Agency
may from time to time refer such clients to the Healthworld
Network in respect of its clients' requirement for Healthworld
Advertising Services in territories (other than the Territory);
provided that the Healthworld Agency first obtains the consent of
such clients and the Network Member to whom the referral is being
made.
4.2 Each party will cooperate and, as far as is reasonably possible, comply
with directions from the party for whose clients it is performing services,
including but not limited to campaign themes, advertising, promotional or
design materials and quality of service.
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4.3 The Agencies will not enter into (and will cause any Related Company of
each Agency not to enter into) during the term of this Agreement any
similar arrangements to those contemplated by this Agreement with any other
network or competing organization.
4.4 If a Licensor is instructed by a client that there is a conflict or a
Licensor reasonably forms the view that a conflict exists between a client
of an Agency and any account of the Licensor or its Related Companies
(other than Campaign Palace), the managing director of the Licensor will
meet with the managing director of the Agency (and the managing director of
The Communications Group Holdings Pty Ltd and such parties will use best
endeavours to agree a course of action which will remove such conflict. The
parties will act in good faith to ensure such conflict is removed.
4.5 Each Agency (or its holding company) shall take out (and each of the
Licensors shall be entitled to satisfy itself that its licensee Agency has
taken out) adequate and appropriate professional indemnity insurance cover.
Such corresponding Licensor shall, unless Licensor declines, be named as an
additional insured on such professional liability insurance with respect to
matters arising in connection with the licences granted under this
Agreement and the Licensor shall bear any additional cost associated with
it being named as an additional insured.
4.6 Subject to clause 4.9, if a client of BWI requires Advertising Services or
Promotional Services in the Territory, BWI will, during the term of this
Agreement, to the extent reasonably within its power refer all such clients
work in the Territory to the Agency. This obligation will not apply to BWI
if the client directs BWI not to engage the Agency in respect of the
clients work in the Territory, in which circumstances BWI may refer such
clients work to any other party in the Territory. BWI agrees to act in good
faith in its discussions with clients regarding their requirements in the
Territory.
4.7 Subject to clause 4.9 if a client of Cordiant requires Design Services in
the Territory, Cordiant will, during the term of this Agreement, to the
extent reasonably within its power refer all such clients work in the
Territory to the Agency. This obligation will not apply to Cordiant if the
client directs Cordiant not to engage the Agency in respect of the clients
work in the Territory, in which circumstances Cordiant may refer such
clients work to any other party in the Territory. Cordiant agrees to act in
good faith in its discussions with clients regarding their requirements in
the Territory. For the purpose of this clause 4.7, Territory means
Australia and New Zealand.
4.8 If a client of Healthworld requires Healthworld Advertising Services in the
Territory, Healthworld will, during the term of this Agreement, to the
extent reasonably within its power refer all such clients work in the
Territory to the Agency. This obligation will not apply to Healthworld if
the client directs Healthworld not to engage the Agency in respect of the
clients work in the Territory, in which circumstances Healthworld may refer
such clients work to any other party in the Territory. Healthworld agrees
to act in good faith in its discussions with clients regarding their
requirements in the Territory.
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4.9 The obligations on the Licensors under this clause 4 to refer client work
to an Agency do not apply if Cordiant Communications (Australia) Pty Ltd
(or a Related Party of Cordiant Communications (Australia) Pty Ltd) ceases
to hold at least 15% of the shares in The Communications Group Holdings Pty
Ltd. In addition, the obligations on the Licensors under this clause 4 to
refer client work to an Agency do not apply, in respect of a particular
Network, if the licence of the Name that relates to that Network is
terminated.
5. MUTUAL PROVISION OF ASSISTANCE
5.1 It is acknowledged by BWI, Cordiant and Healthworld, as applicable, and
each of the Agencies that one of the purposes of this Agreement is that the
applicable Network will, subject to availability and subject to the Agency
paying all costs and expenses incurred by the applicable Network and BWI,
Cordiant or Healthworld, as applicable, provide the Agency with the
assistance detailed in Clause 5.2 if and to the extent so requested by the
Agency and insofar as the applicable Network is free so to do. Each of the
Agencies will, if and to the extent so requested by the applicable Network
or BWI, Cordiant or Healthworld, as applicable, provide equivalent
assistance on equivalent terms.
5.2 With respect to the Agency joining its Network, and to whom it is licensing
a Name hereunder, each of BWI, Cordiant, and Healthworld undertakes to use
its reasonable endeavors to procure that (subject as set out in Clause
5.1):
(a) Its Network supplies the Agency with such marketing, media and
research information relating to the Network as is appropriate and
relevant to the Agency and provides such other specific information
and assistance as may reasonably be requested by the Agency from time
to time.
(b) Its Network on a reasonable basis provides or arranges for training
for such personnel of the Agency as may be designated by the Agency.
The Agency will be responsible for all necessary immigration
procedures including visas, and will provide for the traveling,
lodging, board and out-of-pocket expenses for such personnel for such
training sessions. Responsibility for salary will be dependent on the
nature and duration of the training period and will be agreed in
advance.
(c) Its Network (subject to availability including prior commitments of
its pertinent personnel) provides appropriate personnel as and when
reasonably requested by the Agency for working visits to the Agency on
specific projects, including financial planning, management subjects,
and new business presentations. In connection with such working
visits, the Agency will be responsible for meeting the traveling,
lodging, board and appropriate out-of-pocket expenses incurred by or
for the visitor. Responsibility for salary will be dependent on the
nature and
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duration of the project and will be agreed in advance. Visits by
principals of the Network's executive management for general purposes
other than specific projects shall be at the Network's own expense.
5.3 The cost of fulfilling any request for assistance or information shall be
mutually agreed and established in advance with the relevant Network
Member, but shall in all cases exclude a profit xxxx-up.
5.4 (a) Each of the Agencies agrees that appropriate representatives of the
Agency will attend and actively participate in management meetings
held by the applicable Network which the Agency is joining hereunder,
where the global head of the relevant Agency or a worldwide client
director for the relevant Agency requests the attendance of
representatives of the Agency at such meetings. The Agency will bear
the expenses of such representatives attending management meetings.
(b) With respect to the Fitch Worldwide Network, such meetings shall
include but not be limited to Fitch's bi-annual CEO conference,
creative workshops and training courses on sales and presentation
skills, as may be provided by Cordiant or the Network from time to
time. The Fitch Agency further agrees that at the request of Cordiant
or another Network Member, it will (i) participate in new business
efforts or pitches and (ii) generate content for the Fitch website,
and that the Agency will bear the expenses of the foregoing.
6. LIMITATIONS ON THE AGENCY AND INDEMNITY
6.1 Notwithstanding anything contained in this Agreement, none of the Agencies
are authorized to act as, and to hold themselves out in any way as being
the agent of the Licensors or any Related Companies of the Licensors, or
any other Network Member and shall not purport to bind the Licensors or any
of the same to any obligation of whatsoever nature.
6.2 Each of the Licensors and the Agencies shall at all times be independent
contractors for the purposes of this Agreement, and not agents, employees,
co-venturers or partners with respect to the transactions contemplated
hereunder. Each party assumes full responsibility for the actions of its
personnel while performing services pursuant to this Agreement, and shall
be solely responsible for their supervision, daily direction, control and
for the payment of all their compensation and other employment related
payments (including without limitation withholding of any income or other
taxes, workers' compensation insurance premiums and claims, disability
benefit premiums and claims, and pension, superannuation, retirement and
health and welfare plan payments, liabilities and claims if applicable).
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6.3 Each of the Agencies shall at all times conduct its business in accordance
with all applicable laws. Each of the Agencies agrees to maintain as high a
standard of excellence and of quality of the Name licensed to it hereunder
as such Name currently enjoys, and shall not do or omit to do anything
tending to bring the Name or reputation of BWI, Cordiant or Healthworld, as
applicable, or their Related Companies or the applicable Network into
disrepute.
6.4 (a) The Xxxxx Agency will indemnify BWI and its Related Companies and
other Xxxxx Worldwide Network Members against any and all losses and
damages suffered as a result of;
(1) any breach by the Agency of the terms of this Agreement (and in
particular Clauses 6.1 through 6.3 above); and
(2) any claim of whatsoever nature brought against BWI or any of its
Related Companies by any third party as a result of or connected
with (i) the use by the Xxxxx Agency of the Xxxxx Name or
anything confusingly similar to it or (ii) any BWI Advertising
Services provided by Xxxxx Agency to any party including but not
limited to BWI or its Related Companies or other Xxxxx Worldwide
Network Members or any client of BWI or its Related Companies or
other Xxxxx Worldwide Network Members pursuant to this Agreement.
(b) The 141 Agency will indemnify BWI and its Related Companies and other
141 Network Members against any and all losses and damages suffered as
a result of:
(1) any breach by the Agency of the terms of this Agreement (and in
particular Clauses 6.1 through 6.3 above); and
(2) any claim of whatsoever nature brought against BWI or any of its
Related Companies by any third party as a result of or connected
with (i) the use by the 141 Agency of the 141 Name or anything
confusingly similar to it or (ii) any Promotional Services
provided by 141 Agency to any party including but not limited to
BWI or its Related Companies or other 141 Worldwide Network
Members or any client of BWI or its Related Companies or other
141 Worldwide Network Members pursuant to this Agreement.
(c) The Fitch Agency will indemnify Cordiant and its Related Companies and
other Fitch Worldwide Network Members against any and all losses and
damages suffered as a result of:
(1) any breach by the Agency of the terms of this Agreement (and in
particular Clauses 6.1 through 6.3 above); and
(2) any claim of whatsoever nature brought against Cordiant or any of
its Related Companies by any third party as a result of or
connected with (i) the use by the Fitch Agency of the Fitch Name
or anything confusingly
14
similar to it or (ii) any Design Services provided by Fitch
Agency to any party including but not limited to Cordiant or its
Related Companies or other Fitch Worldwide Network Members or any
client of Cordiant or its Related Companies or other Fitch
Worldwide Network Members pursuant to this Agreement.
(d) The Healthworld Agency will indemnify Healthworld and its Related
Companies and other Healthworld Network Members against any and all
losses and damages suffered as a result of:
(1) any breach by the Agency of the terms of this Agreement (and in
particular Clauses 6.1 through 6.3 above); and
(2) any claim of whatsoever nature brought against Healthworld or any
of its Related Companies by any third party as a result of or
connected with (i) the use by the Healthworld Agency of the
Healthworld Name or anything confusingly similar to it or (ii)
any Healthworld Advertising Services provided by Healthworld
Agency to any party including but not limited to Healthworld or
its Related Companies or other Healthworld Network Members or any
client of Healthworld or its Related Companies or other
Healthworld Network Members pursuant to this Agreement.
6.5 (a) In the event that any third party brings suit against the Xxxxx Agency
or BWI alleging that use of the Xxxxx Name by either party constitutes
infringement of any xxxx or name belonging to the third party, or
otherwise seeks to prevent use or registration of the Xxxxx Name, BWI
shall have the right, at its own cost to control any resulting
litigation, select counsel and determine the terms of any settlement.
The Xxxxx Agency agrees to notify BWI of any such claim of which it is
aware, as soon as reasonably possible after it becomes aware of such
claim and in any event not more than 3 business days after becoming
aware of such claim and to cooperate fully with BWI and its counsel in
the conduct of such litigation.
(b) In the event that any third party brings suit against the 141 Agency
or BWI alleging that use of the 141 Name by either party constitutes
infringement of any xxxx or name belonging to the third party, or
otherwise seeks to prevent use or registration of the 141 Name, BWI
shall have the right, at its own cost to control any resulting
litigation, select counsel and determine the terms of any settlement.
The 141 Agency agrees to notify BWI of any such claim of which it is
aware, as soon as reasonably possible after it becomes aware of such
claim and in any event not more than 3 business days after becoming
aware of such claim, and to cooperate fully with BWI and its counsel
in the conduct of such litigation.
(c) In the event that any third party brings suit against the Fitch Agency
or Cordiant alleging that use of the Fitch Name by either party
constitutes infringement of any xxxx or name belonging to the third
party, or otherwise seeks to prevent use or
15
registration of the Fitch Name, Cordiant shall have the right, at its
own cost to control any resulting litigation, select counsel and
determine the terms of any settlement. The Fitch Agency agrees to
notify Cordiant of any such claim of which it is aware, as soon as
reasonably possible after it becomes aware of such claim and in any
event not more than 3 business days after becoming aware of such
claim, and to cooperate fully with Cordiant and its counsel in the
conduct of such litigation.
(d) In the event that any third party brings suit against the Healthworld
Agency or Healthworld alleging that use of the Healthworld Name by
either party constitutes infringement of any xxxx or name belonging to
the third party, or otherwise seeks to prevent use or registration of
the Healthworld Name, Healthworld shall have the right, at its own
cost to control any resulting litigation, select counsel and determine
the terms of any settlement. The Healthworld Agency agrees to notify
Healthworld of any such claim of which it is aware, as soon as
reasonably possible after it becomes aware of such claim and in any
event not more than 3 business days after becoming aware of such claim
and to cooperate fully with Healthworld and its counsel in the conduct
of such litigation.
7. TERM, TERMINATION AND NON-SOLICITATION
7.1 Subject to the remaining provisions of this clause 7, this Agreement shall
commence on the date hereof and shall continue in force for an initial term
of 5 years (Initial Term). The Agencies may, by notice in writing to BWI,
elect to renew their licences for a further term of 5 years by serving
12 months' notice on BWI prior to the expiry of the Initial Term. If an
Agency serves such notice then the licence will, subject to the remaining
provisions of this clause 7, continue for a further period of 5 years from
the expiry of the Initial Term. A notice served to extend the licence of a
Name will be ineffective if the licence in respect of that name has been
terminated in accordance with the terms of this deed or if either before or
after the notice to extend the licence has been served, the Licensor in
respect of that Name is entitled to terminate the licence for that Name and
such party elects to do so.
7.2 The Licensors may terminate this agreement in the event of a Trade Sale or
a sale of 50% or more of the Share Capital in The Communications Group
Holdings Pty Ltd to an International Agency or to an entity controlled by
an International Agency. If the Licensors terminate this agreement pursuant
to this clause 7.5(b), the Agencies will take all such action as is
reasonably required to cease using the intellectual property rights
licensed under this agreement as soon as practicable after the date such
termination notice is served and in any event the Agencies must have
complied fully with the obligations in clause 7.6 by the date which is six
months after the date of service of such termination notice. The term Trade
Sale and the term Share Capital have the meaning given to such terms in the
Shareholders Agreement between Cordiant Communications Group plc, PEP
Investment Pty Ltd and others dated the same date as this agreement. The
term
16
International Agency means a marketing and communications agency that has a
presence in, at least, Europe and North America.
7.3 Cordiant may terminate the rights and obligation in this Agreement so far
as they relate to the licence of the Fitch Name and referral of clients
under clause 4.1.2 granted in respect of:
(1) Malaysia, if the Malaysian Service Agreement is terminated
(2) Singapore, if the Singapore Service Agreement is terminated; and
(3) Hong Kong, if the Hong Kong Service Agreement is terminated.
The Malaysian Service Agreement, Singapore Service Agreement and Hong Kong
Service Agreement are attached to this agreement as annexure B. If Cordiant
terminates rights and obligation relating to the licence of the Fitch Name
in respect of a particular country, in accordance with this clause 7.3, the
Territory in respect of the Fitch Name will not include that country.
7.4 Subject to clause 7.5, this Agreement may be terminated at any time by any
of the Agencies or the Licensors (the Agencies and the Licensors, each
group hereafter collectively referred to as a "party") forthwith upon
written notice to the other parties if any of the other parties:
(a) commits a series of breaches which taken together would constitute a
material breach of its obligations hereunder or commits any material
breach of any of its obligations hereunder and fails to remedy such
breach within thirty (30) days from receipt of notice from the
notifying party requiring it to do so;
(b) commits an act of bankruptcy which is not remedied within thirty (30)
days or is the subject of a voluntary or involuntary petition in
bankruptcy which is not dismissed within thirty (30) days;
(c) has a resolution for winding-up passed in relation to it other than in
the course of an amalgamation or reconstruction, the terms of which
shall have been approved by the other party (such approval not to be
unreasonably withheld);
(c) has a petition for winding-up presented in relation to it which
petition is not dismissed within ten (10) days of its presentation;
(d) has a receiver or an administrative receiver appointed over the whole
or any part of its undertaking or assets;
17
(e) applies to the court, or if any other person so entitled applies to
the court, for the appointment of an administrator in relation to it,
which application (in the case of an application made by another
person) is not dismissed within ten (10) days of its making;
(f) ceases to or threatens to cease to carry on its business or a
substantial part thereof except in the event of an intra-group
transfer of its business and its obligations under this Agreement to
which BWI has previously given its written consent;
(g) has any execution or distress levied against it or has an encumbrancer
take possession of the whole or any substantial part of its property,
assets or business;
(h) is the subject of any equivalent procedures referred to in sub-Clauses
(b) through (h) above in any jurisdiction whether in the Territory or
elsewhere.
7.5 If the defaulting party under clause 7.4 is an Agency, such Agency
will immediately cease to have any rights granted to it under this
Agreement and the relevant Licensor will no longer have to comply with
its obligations under this Agreement in respect of such Agency. For
the avoidance of doubt this does not affect the rights of any other
Agency of this Agreement however, if one of the Xxxxx Agencies (ie
either Xxxxxx Xxxxxxxxx Pty Ltd or The Communications Group Limited)
is a defaulting party under clause 7.4 then both Xxxxx Agencies will
be deemed to be defaulting parties for the purpose of this clause 7.4.
If one of the 141 Agencies is a defaulting party under this clause 7.4
then all 141 Agencies will be deemed to be defaulting parties for the
purpose of this clause 7.4.
7.5(a) This Agreement may be terminated at any time by the Licensors if (i)
The Communications Group Holdings Pty Ltd commits a series of breaches
(whether remedied or not) which taken together would constitute a
material breach of its obligations under the Shareholders' Agreement
entered into on the date hereof between The Communications Group
Holdings Pty Ltd, Cordiant Communications Group plc, those persons
listed in Schedule 7 thereof, Xxxx Pacific Associates, LLC, BCIP
Associates II, BCIP Associates II-B, Pacific Equity Partners Fund I
Pty Limited, Pacific Equity Partners (NZ) Limited, PEP Co-Investment
Pty Limited and PEP Investment Pty Limited, or commits any material
breach of any of its obligations thereunder and (if such breach is
capable of remedy) fails to remedy such breach within thirty (30) days
from receipt of notice from the notifying party requiring it to do so,
or (ii) the Shareholders' Agreement is terminated for any reason
(other than termination of such agreement on the occurrence of a sale
of all of the Share Capital, a Trade Sale or a Listing, the terms
"Share Capital", "Trade Sale" and "Listing" having the meaning given
to such terms in the Shareholders Agreement).
7.6 Upon termination of this Agreement for whatever reason (including, for
the avoidance of doubt, default on the part of any of the Licensors),
the Agencies or in the case of termination pursuant to clause 7.4, the
relevant Agency shall forthwith cease to use and shall not thereafter
use the Name in any form whatsoever or any name confusingly similar
18
thereto and accordingly (but without limitation) each of the Agencies
will forthwith ensure that no portion of the Name is used as part of
its trading or corporate name (if appropriate) or in any other manner
and shall amend any signage at any of its premises and shall destroy
all notepaper and other business stationery and materials which
includes the Name or any portion thereof and shall inform all its
clients and regular suppliers of the change of its name. Following
termination no Agency will represent that it has any relationship or
association with a Licensor or the Network.
7.7 If so requested by its corresponding Licensor, each Agency will hand
over to such Licensor, or such person as it may nominate, or inform
such Licensor, as applicable, or its nominee of the whereabouts of all
advertising, promotional or design materials, as applicable, belonging
to clients of Network Members introduced by the Network to the Agency.
7.8 Each of the Agencies acknowledges that it shall acquire no ownership
interest and no interest in any goodwill attaching to any Name
licensed hereunder, and shall not be entitled to compensation for any
loss it may suffer as a result of ceasing to use such Name on
termination of this Agreement howsoever arising (except, in relation
to compensation for any loss it may suffer as a result of ceasing to
use such Name on termination, arising from breach on the part of the
Licensors).
7.9 Termination of this Agreement (howsoever arising including, for the
avoidance of doubt, arising from breach on the part of the Licensors)
shall not affect the validity or enforceability of any of the terms
(including but not limited to Clause 8.4) of this Agreement intended
to have continuing effect.
7.10 Subject to clause 7.11, Cordiant UK will not, and it will procure that
no Related Company of Cordiant UK does, for a period of two years
after the expiry of the term of a licence for a Name (such period the
Restraint Period) (other than where the licence in respect of that
Name terminates pursuant to clause 7.4):
(a) attempt in any manner to persuade any client of a Group Company
to cease to do business or to reduce the amount of business which
any such client has customarily done or contemplates doing with
the Agency that licensed that Name provided that clause 7.10
shall not prevent Cordiant UK (or a Related Company of Cordiant
UK) from pitching for work from any party (including a client of
a Group Company) where such party has invited pitches to be made
for its work and any such pitch by Cordiant UK or a Related
Company of Cordiant UK will not be considered to breach this
clause 7.10 and provided further that the restriction in this
clause 7.10 will not apply in relation to international clients
referred by a Licensor to the Agency prior to the expiry of the
licence; or
(b) induce or attempt to induce any employee of a Group Company to
terminate his employment with such company.
19
7.11 Nothing in clause 7.10(a) prevents Cordiant UK from taking any action in
relation to The Campaign Palace or prevents The Campaign Palace from
competing with an Agency provided that the restrictions in clause 7.10(a)
will however apply to The Campaign Palace if, in the Restraint Period The
Campaign Palace wishes to trade under the Xxxxx Name or the 141 Name. For
the avoidance of doubt, the restraint in clause 7.10(b) applies to The
Campaign Palace. The term The Campaign Palace has the meaning given to that
term in the Shareholders Agreement.
8. MISCELLANEOUS
8.1 This Agreement contains the entire agreement and understanding between the
parties with respect to its subject matter, and supersedes all prior
agreements and understandings between the parties regarding the subject
matter hereof.
8.2 No announcement or circular in connection with the subject matter of this
Agreement shall be made or issued by or on behalf of any party without the
prior written approval of the other parties save where such announcement or
circular is required by law, any stock exchange or regulatory body, in
which case the parties will consult with each other prior to such
announcement being made.
8.3 The rights, benefits and obligations of any of the Agencies under this
Agreement shall not be assigned, transferred, mortgaged, pledged,
encumbered, sublicensed, subcontracted, made subject to option or otherwise
disposed of without the prior written consent of the Licensors.
8.4 All data or information relating:
8.4.1 (a) to the contents of this Agreement or negotiations relating
to matters envisaged by this Agreement; or
(b) to the business, affairs or clients of each party to this
Agreement or of any Network Member,
and coming to the attention of a party to this Agreement (the
"Receiving Party") other than the party in whose possession or
control the information first was (the "Supplying Party") through
implementation of this Agreement or any contract entered into or
Promotional Services, Design Services, Healthworld Advertising
Services or BWI Advertising Services provided pursuant hereto,
shall be treated by the other parties as confidential and
(subject to Clause 8.6) shall not be
20
disclosed during the term of this Agreement or after its
termination for whatsoever reason (including, for the avoidance
of doubt, as a result of a breach on the part of BWI, Cordiant or
Healthworld) to persons or entities not a party to this Agreement
without the prior written consent of the Supplying Party.
8.4.2 On the termination of this Agreement for whatsoever reason
(including, for the avoidance of doubt, as a result of a breach
on the part of BWI, Cordiant or Healthworld) the Receiving Party
shall forthwith return to the Supplying Party all such data and
information referred to in Clause 8.4.1 in whatever form and all
copies thereof.
8.5 The parties hereto shall take all reasonable steps to ensure that their
Related Companies, employees and representatives shall maintain the
confidentiality of the matters referred to in Clause 8.4.1.
8.6 Nothing in this Clause 8 shall preclude:
(a) disclosure of any information requested by any governmental or
regulatory authority entitled to disclosure of the same (provided that
the party called upon to so disclose such information shall, if
reasonably possible, notify the Supplying Party of the required
disclosure as long as possible prior to the time of such required
disclosure);
(b) disclosure of any information to a Related Company (provided that such
Related Company is a member of the Network) of the Receiving Party or
any of its employees or representatives; or
(c) disclosure to a third party of information which has been published or
is otherwise lawfully in the public domain.
8.7 Any notice to be given concerning this Agreement shall be given in writing
and either: (i) sent by reputable overnight courier service; (ii) sent by
facsimile; or (iii) hand delivered to the recipient personally. In the case
of notice being sent by overnight courier service, the date of the giving
of the notice shall be deemed to be the day after the date said notice was
given to the courier service as indicated by the records of such courier
service. In the case of notice being sent by facsimile, the date of the
giving of the notice shall be deemed to be the date of actual receipt. In
the case of notice being hand delivered, a written dated receipt shall be
given therefor. Notice by mail, courier service or facsimile shall be sent
as follows:
If to Xxxxx Agency: Xxxxxx Xxxxxxxxx Pty Limited
21
Address: As set out at the front of this
document
Attention Xxx Xxxxx
Facsimile: (00) 0000 0000
If to 141 Agency: X/M Pty Limited
Address: As set out at the front of this
document
Attention Xxx Xxxxx
Facsimile: (00) 0000 0000
If to Healthworld
Agency: Healthworld Communications Group Pty Ltd
Address: As set out at the front of this
document
Attention Xxx Xxxxx
Facsimile: (00) 0000 0000
If to Fitch Agency: Underline:Fitch Pty Limited
Address: As set out at the front of this
document
Attention Xxx Xxxxx
Facsimile: (00) 0000 0000
If to BWI: Xxxxx Worldwide, Inc,
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: 212-297-8888
with a copy to: General Counsel
Facsimile: 000-000-0000
If to Cordiant: Cordiant Communications Group plc
Address: 000-000 Xxxxxxxxxx Xxxxxxx
Xxxxxx X0 0XX
Attention: Xxxx Xxxxx
with a copy to: General Counsel
Facsimile: 000-000-0000
If to Healthworld: Healthworld Corporation
22
Address 100 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
with a copy to: General Counsel
Facsimile: 000-000-0000
By giving notice to the other parties any party may, from time to time,
designate (i) a different address to which notice by mail. courier service
or facsimile to such party shall be sent and/or (ii) a different person to
receive notices.
8.8 No failure or delay by any party in exercising any right, power or
privilege under this agreement shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any further exercise
thereof or the exercise of any right, power or privilege hereunder or
otherwise.
8.9 Should any provision of this Agreement be held to be invalid or
unenforceable, then such provision shall, so far as it is invalid or
unenforceable, be given no effect and shall be deemed not to be included in
this Agreement but without invalidating any of the remaining provisions of
this Agreement. The parties shall then use all reasonable endeavors to
replace the invalid or unenforceable provision by a valid provision the
effect of which is the closest possible to the intended effect of the
invalid or unenforceable provision.
9. MODIFICATION
9.1 No modification of this Agreement shall be effective unless and until it is
in writing and signed by (or by some person duly authorised by) each of the
Agencies and each of the Licensors.
10. GOVERNING LAW AND JURISDICTION
10.1 This Agreement shall be governed by and construed in accordance with the
substantive law of New South Wales, excluding only its conflict of laws
provisions.
10.2 Each of the parties hereby irrevocably submits to the non-exclusive
jurisdiction of the courts located within New South Wales, Australia, with
respect to any dispute that may arise in connection with this Agreement.
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
24
XXXXX WORLDWIDE, INC. Xxxxxx Xxxxxxxxx Pty Limited
By: /s/ [Authorized Signature] By: /s/ [Authorized Signature]
--------------------------- ---------------------------
Name: Name:
Title: Title
HEALTHWORLD COMMUNICATIONS, INC. The Communications Group Limited
By: /s/ [Authorized Signature] By: /s/ [Authorized Signature]
--------------------------- ---------------------------
Name: Name:
Title: Title:
25
Cordiant Communications Group plc X/M Pty Limited
By: /s/ [Authorized Signature] By: /s/ [Authorized Signature]
--------------------------- ---------------------------
Name: Name:
Title: Title:
Big Island International Pty Limited
By: /s/ [Authorized Signature]
---------------------------
Name:
Title:
Healthworld Communications Group
Pty Limited
By: /s/ [Authorized Signature]
---------------------------
Name:
Title:
Patts 141 Pty Limited
By: /s/ [Authorized Signature]
---------------------------
Name:
Title:
26
Underline:Fitch Pty Limited
By: /s/ [Authorized Signature]
---------------------------
Name:
Title:
27
