Exhibit 10.1
FAI INSURANCES LIMITED
(ACN 004 304 545)
FAI HOME SECURITY PTY LIMITED
(ACN 000 000 000)
SHARE SALE AGREEMENT
relating to shares in
FAI Finance Corporation Pty Limited
(ACN 053 262 561)
XXXXXX XXXXXXX
Lawyers
Xxxxxx Xxxxxxx Building
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
DX 000 XXXXXX
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
MAP: 10664498
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 4
2. CONDITIONS 5
2.1 Conditions 5
2.2 Waiver of Conditions 5
2.3 Conduct of the parties 6
2.4 Failure of Condition 6
3. SALE AND PURCHASE 6
3.1 Agreement to sell and purchase 6
3.2 Sale of Shares free from Encumbrance 6
3.3 Effective Date 6
4. PURCHASE PRICE 7
4.1 Purchase Price 7
4.2 Payment of the Purchase Price 7
5. VENDOR'S OBLIGATIONS PENDING COMPLETION 7
5.1 Vendor's obligations 7
5.2 Purchaser's obligations 9
6. COMPLETION 9
6.1 Time and place 9
6.2 Simultaneous actions at Completion 9
6.3 Obligations of the Vendor 9
6.4 Obligations of the Purchaser 10
6.5 Purchaser's rights 10
6.6 Vendor's rights 10
6.7 Conduct until the Shares are registered 10
7. WARRANTIES BY THE VENDOR 11
7.1 Warranties 11
7.2 Application of the Warranties 11
7.3 Qualification 11
7.4 Exclusions 11
7.5 Indemnity limitations 12
7.6 Indemnity 12
7.7 Financial limits on claims 12
7.8 Maximum aggregate liability for claims 12
7.9 Notice of potential claim 12
7.10 Notice of claim 13
7.11 Rights of the Vendor 13
7.12 Notification of credit by the Purchaser 13
7.13 Effect of payment 13
7.14 Survival 13
8. WARRANTIES BY THE PURCHASER 14
8.1 Warranties 14
8.2 Application of Representations by the Purchaser 14
9. CONFIDENTIALITY AND PUBLICITY 14
9.1 Confidentiality 14
9.2 Confidential Information 15
9.3 Announcements 15
10. TERMINATION 16
10.1 Default 16
10.2 After termination 16
10.3 Survival 16
10.4 Accrued rights 16
11. ASSIGNMENT 16
12. WAIVER 17
12.1 Waiver 17
12.2 Rights exercisable 17
13. NOTICES 17
13.1 Service of notices 17
13.2 Deemed receipt 18
13.3 Execution 18
13.4 Other modes of service permitted 18
13.5 Interpretation 18
14. GOVERNING LAW AND JURISDICTION 18
15. GENERAL 19
15.1 Duration of provisions 19
15.2 Costs 19
16. ADJUSTMENT TO PURCHASE PRICE 19
SCHEDULE 1 PART 1 - DETAILS OF THE COMPANY 21
PART 2 - DETAILS OF SUBSIDIARY 22
SCHEDULE 2 - CONDITIONS 23
SCHEDULE 3 - DIRECTORS AND SECRETARIES TO BE APPOINTED 24
SCHEDULE 4 - WARRANTIES 25
SCHEDULE 5 - INTELLECTUAL PROPERTY RIGHTS 34
SCHEDULE 6 - PROPERTY 35
SHARE SALE AGREEMENT
AGREEMENT dated 1997
BETWEEN FAI INSURANCES LIMITED (ACN 004 304 545) of 000 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx 0000 ('Vendor'),
AND FAI HOME SECURITY PTY LIMITED (ACN 000 000 000) of 0/00 Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxx Xxxxx 0000 ('Purchaser')
RECITALS
A. The Company has an issued share capital of $50 002 divided into 50 002
fully paid shares of $1.00 each.
B. All of the issued share capital is legally and beneficially owned by the
Vendor.
C. Subject to and on the terms and conditions contained in this agreement:
(i)the Vendor has agreed to sell 50% of its shares ('Shares') to the
Purchaser; and
(ii) the Purchaser has agreed to purchase the Shares from the Vendor.
AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement, unless the contrary intention appears:
'Accounting Standards' means the Australian Accounting Standards from time
to time, but if and to the extent that any matter is not covered by
Australian Accounting Standards means generally accepted accounting
principles applied from time to time in Australia for a company similar to
the Company;
'Accounts' means the audited consolidated balance sheet of the Company and
the Subsidiary as at the Accounts Date and the audited consolidated profit
and loss statement of the Company and the Subsidiary for the financial
year ended on the Accounts Date together with the notes to, and the
reports of the directors in respect of, those accounts;
'Accounts Date' means 30 June 1997;
'Articles' means the articles of association of the Company;
'Associate' has the meaning given to that term by sections 10 to 17 of the
Corporations Law;
'ASX' means Australian Stock Exchange Limited;
'Business' means the businesses carried on by the Group, including the
business of the provision of consumer finance products;
'Business Day' means the day on which Banks (as defined in the Banking Xxx
0000 (Cth)) are open for general banking business in New South Wales,
excluding Saturdays and Sundays;
'Claim' includes a claim, notice, demand, action, proceeding, litigation,
investigation, judgment, damage, loss, cost, expense or liability however
arising, whether present, unascertained, immediate, future or contingent,
whether based in contract, tort or statute and whether involving a third
party or a party to this agreement;
'Company' means FAI Finance Corporation Pty Limited ACN 053 262 561 and in
Schedule 4 (Warranties) has the meaning given in paragraph 7.2(c);
'Completion' means completion of the sale and purchase of the Shares in
accordance with clause 6 (Completion);
'Completion Date' means the date on which Completion takes place;
'Conditions' means the conditions precedent set out in Schedule 2
(Conditions);
'Confidential Information' means the following, regardless of its form or
medium and whether or not it comes into existence before, on or after the
date of this agreement:
(a) all information of or used by any Group Company or the Business,
relating to their transactions, operations and affairs including,
without limitation, all past, current and prospective financial,
accounting, marketing, trading, technical and business information,
trade secrets, know-how, technology and operating procedures,
customer and supplier lists, data bases, source codes,
methodologies, manuals, artwork and advertising manuals;
(b) all other information treated by any Group Company as
confidential;
(c) all notes, reports and other records based on, incorporating or
derived from information referred to in paragraphs (a) or (b); and
(d) all copies of the information, notes, reports and records
referred to in paragraphs (a), (b) or (c),
that is not public knowledge (otherwise than as a result of a breach of a
confidentiality obligation of a party);
'Deferred Payment Rate' means 7.75% per annum.
'deliver' includes cause the delivery of;
'Effective Date' means 31 December 1997;
'Encumbrance' includes mortgage, charge, lien, restriction against
transfer, encumbrance and other third party interest;
'Floating Charge' means the fixed and floating charge created by
instrument dated 28 June 1996 granted by the Company to Westpac over the
assets and undertaking of the Company;
'Group' means the Company and the Subsidiary;
'Group Company' means any one of the Company and the Subsidiary;
'Intellectual Property Rights' means all intellectual property and
proprietary rights (whether registered or unregistered) including, without
limitation:
(a) business names;
(b) trade or service marks;
(c) any right to have information (including, without limitation,
Confidential Information) kept confidential; and
(d) patents, patent applications, drawings, discoveries, inventions,
improvements, trade secrets, technical data, formulae, computer
programs, data bases, know-how, logos, designs, design rights,
copyright and similar industrial or intellectual property rights;
'Leasehold Property' means the real property (if any) listed in part 2 of
Schedule 6 (Property);
'Liabilities' includes all liabilities (whether actual, contingent or
prospective), losses, damages, costs and expenses of whatever description;
'Material Adverse Effect' means a material adverse effect on:
(a)the Business; or
(b)the assets, profitability or financial condition of the Group;
'Money Owing' means the amount determined for any day by the Vendor to be
the aggregate of the Purchase Price Balance and any other amounts owing by
the Purchaser under this agreement on that day.
'pay' includes cause the payment of;
'Property' means the real property (whether leasehold or freehold) listed
in Schedule 6;
'Property Lease' means the lease of the Leasehold Property described in
part 2 of Schedule 6 (Property);
'Purchase Price' means the sum specified in clause 4 (Purchase Price);
'Purchase Price Balance' means the Purchase Price less the aggregate of
all payments of principal made by the Purchaser under clause 4 in
reduction of the Purchase Price.
'Records' means all original and copy records, documents, books, files,
reports, accounts, plans, correspondence, letters and papers of every
description and other material regardless of their form or medium and
whether coming into existence before, on or after the date of this
agreement, belonging or relating to or used by any Group Company including
(without limitation) certificates of incorporation, minute books,
statutory books and registers, books of account, taxation returns, title
deeds and other documents of title, customer lists, price lists, computer
programs and software, and trading and financial records;
'Related Body Corporate' has the meaning given to that term by sections 9
and 50 of the Corporations Law;
'sell' includes cause the sale of;
'Shareholders Agreement' means an agreement between the Vendor and the
Purchaser substantially in the form of Annexure A;
'Shares' means 25 001 of the shares in the issued capital of the Company;
'Subsidiary' means the subsidiary of the Company listed in part 2 (Details
of Subsidiary) of Schedule 1;
'Target Date' means 21 January 1998 or a later date agreed by the Vendor
and the Purchaser in writing;
'Trade Xxxx Licence Agreement' means a non-exclusive licence to be entered
into between FAI Insurances Limited and the Company substantially in the
form set out in Annexure B to this agreement.
'transfer' includes cause the transfer of;
'Warranties' means each of the representations and warranties given under
clause 7.1 (Warranties) and set out in Schedule 4 (Warranties); and
'Westpac' means Westpac Banking Corporation ARBN 007 457 141.
1.2 Interpretation
In this agreement, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect the
meaning of this agreement;
(b) the singular includes the plural and vice versa;
(c) other grammatical forms of defined words or expressions have
corresponding meanings;
(d) a reference to a clause, paragraph, schedule, annexure or
attachment is a reference to a clause or paragraph of or schedule,
annexure or attachment to this agreement and a reference to this
agreement includes its schedules, annexures and attachments;
(e) a reference to a document or agreement, including this agreement,
includes a reference to that document or agreement as novated,
altered or replaced from time to time;
(f) a reference to 'A$', '$A', 'dollar' or '$' is a reference to
Australian currency;
(g) a reference to a specific time for the performance of an
obligation is a reference to that time in Sydney, New South Wales,
Australia even if the obligation is to be performed elsewhere;
(h) a reference to a party includes a reference to the party's
executors, administrators, successors, substitutes and assigns;
(i) words and expressions importing natural persons include
partnerships, bodies corporate, associations, governments and
governmental and local authorities and agencies, and vice versa;
(j) a reference to any legislation or statutory instrument or regulation
is construed in accordance with the Acts Interpretation Xxx 0000
(Cth) or the equivalent State legislation, as applicable;
(k) a reference to writing includes typewriting, printing, lithography,
photography and any other method of representing or reproducing
words, figures or symbols in a permanent and visible form; and
(l) if a day for the payment under this agreement falls on a day which
is not a Business Day, payment is due on the immediately preceding
Business Day.
2. CONDITIONS
2.1 Conditions
The provisions of clauses 3 (Sale and purchase), 4 (Purchase Price) and 6
(Completion) have no effect and the sale of the Shares by the Vendor to
the Purchaser as contemplated by this agreement shall not occur unless and
until all of the Conditions are fulfilled.
2.2 Waiver of Conditions
A Condition may not be waived except by a waiver in writing signed by each
party entitled to the benefit of that Condition (as set out in Schedule 2
(Conditions)) and will be effective only to the extent specifically set
out in that waiver.
2.3 Conduct of the parties
Each party must use all reasonable efforts within its own capacity to
ensure that each Condition is fulfilled before the Target Date.
2.4 Failure of Condition
Either the Vendor or the Purchaser may terminate this agreement by giving
notice in writing to the other parties at any time before Completion if:
(a) a Condition is incapable of fulfilment;
(b) events or circumstances make it improbable (in the reasonable
opinion of the Vendor) that a Condition can be fulfilled;
(c) each Condition is not satisfied, or waived by each party entitled to
the benefit of that Condition, before 5pm on the Business Day
immediately preceding the Target Date; or
(d) a Condition having been fulfilled, that Condition does not remain
fulfilled in all respects at all times before Completion.
3. SALE AND PURCHASE
3.1 Agreement to sell and purchase
On and subject to the terms and conditions of this agreement:
(a) the Vendor as beneficial owner agrees to sell the Shares to the
Purchaser; and
(b) the Purchaser agrees to purchase the Shares from the Vendor.
3.2 Sale of Shares free from Encumbrance
The Vendor must transfer the Shares at Completion:
(a) free from Encumbrance; and
(b) together with all rights, including dividend and voting rights,
attached or accrued to them on or after the date of this agreement.
3.3 Effective Date
Notwithstanding whether Completion occurs before or after the Effective
Date, Completion will be taken to have occurred on the Effective Date.
4. PURCHASE PRICE
4.1 Purchase Price
The purchase price payable by the Purchaser to the Vendor for the Shares
is $10,750,000.
4.2 Payment of the Purchase Price
The Purchaser must pay (or cause to be paid) the Purchase Price as
follows:
(a) by payment of the amount of $2,500,000 on Completion; and
(b) by payment of the balance of the Purchase Price of $8,250,000 in the
amounts set out in column 2 on the dates set out in column 1 of the
table below:
Column 1 - Column 2 -
Payment Dates Payment Amounts
---------------------------------------------------------------
The first anniversary of the date of this $1,000,000
agreement
On each of the second, third and fourth $2,000,000
anniversary of the date of this agreement
---------------------------------------------------------------
On each date that the Purchaser or a Up to 40% of the
Related Body Corporate receives funds from proceeds received
any issue of debt or equity instruments from the issue or
(of whatever type or nature) to the public raising
or effects any capital raising
---------------------------------------------------------------
On the Business Day after the Vendor has The Money Owing
notified the Purchaser that an 'Event of at that day
Default' under the Receivables Purchase
Agreement between the Company, Westpac
and FAI General Insurance Limited dated
28 June 1996 (as amended) has occurred
and is subsisting
---------------------------------------------------------------
The fifth anniversary of the date of this The Money Owing
agreement on that day
(c) In consideration of the Vendor agreeing to the deferment of the
payment of the Purchase Price, interest will accrue daily on the
Purchase Price Balance at the Deferred Payment Rate. Interest is
calculated on the basis of a 365 day year and is payable monthly in
arrears on the last Business Day of each month until the Money Owing
has been fully repaid.
5. VENDOR'S OBLIGATIONS PENDING COMPLETION
5.1 Vendor's obligations
Until Completion the Vendor:
(a) must ensure that the Business is carried on in all respects in the
ordinary and usual course and in the same manner as before the date
of this agreement and (in particular but without limitation) must
ensure that each Group Company does not, except as expressly
provided in this agreement or with the prior
written consent of the Purchaser:
(i) declare, make or pay any distribution of its profits or
assets by way of declaration or payment of dividend or
otherwise;
(ii) lend any money outside the ordinary course of business, and
in particular (but without limitation) not lend money to the
Vendor, its officers or employees;
(iii) transfer or otherwise dispose of or agree to transfer or
dispose of the Business or any part of it;
(iv) make a material change in the nature of, or cease carrying
on, the Business or any part of it;
(v) sell or otherwise dispose of any material asset of any Group
Company;
(vi) enter into any material, unusual or abnormal agreement or
commitment, or any other agreement or commitment outside the
ordinary course of business; or
(vii) borrow money, or draw on any credit lines, other than under
existing credit facilities and then only if the credit limit
as at the date of this agreement is not increased;
(b) must ensure that the Purchaser, its employees, agents and
representatives are provided with, subject to clause 5.2
(Purchaser's obligations), such access to the Property and the
Records as the Purchaser reasonably requires at all reasonable times
before Completion to enable the Purchaser to become familiar with
the Business and the affairs of the Group, to investigate the
accuracy of the Warranties and to conduct due diligence
investigations reasonably required by the Purchaser;
(c) must ensure that for any of the purposes described in paragraph (b)
the Purchaser is permitted to make copies of material examined,
consult with the Managing Director of the Company and (but only with
the prior consent of the Vendor), consult with employees of any
Group Company;
(d) must (and must use their best endeavours to ensure that the officers
and employees of each Group Company) cooperate with and provide any
assistance to the Purchaser reasonably necessary for the exercise of
any of the Purchaser's rights under this clause 5.1; and
(e) must ensure that the Purchaser is informed of, and consulted about,
any
matter which materially affects the Business.
5.2 Purchaser's obligations
The Purchaser must ensure that the exercise of any of its rights under
clause 5.1 (Vendor's obligations) and (in particular but without
limitation) any due diligence investigations conducted by it or on its
behalf are exercised and conducted to avoid unreasonable disruption to the
conduct of the Business and the activities and operations of any Group
Company and its employees.
6. COMPLETION
6.1 Time and place
Completion will take place on the Completion Date at the offices of Xxxxxx
Xxxxxxx, Lawyers, at 00 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, or another
place agreed by the parties.
6.2 Simultaneous actions at Completion
All actions at Completion will be treated as taking place simultaneously
and no delivery or payment will be regarded as having been made until all
deliveries and payments due to be made by Completion have been made.
6.3 Obligations of the Vendor
At or before Completion the Vendor must:
(a) deliver to the Purchaser duly executed and completed transfers in
favour of the Purchaser of the Shares in registrable form (except
for the impression of stamp duty) together with the relevant share
certificates;
(b) produce to the Purchaser any power of attorney or other authority
under which the transfers of the Shares are executed;
(c) deliver to the Purchaser copies of the other consents and waivers
obtained under Schedule 2 (Conditions);
(d) cause the board of directors of the Company to resolve that the
transfers of the Shares (subject only to the payment of stamp duty
on the transfers) be approved and registered;
(e) cause the persons named in Part 1 of Schedule 3 (Directors and
secretaries to be appointed)(or any other persons notified in
writing by the Purchaser to
the Vendor before Completion) to be appointed as directors and
secretary of the Company and the Subsidiary with effect from
Completion and accept the resignation of Mr Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxx; and
(f) cause the resignation as directors and secretary of the Company and
the Subsidiary with effect from Completion of each of those persons
named in Schedule 1 against whose name it is indicated that the person
is to resign.
6.4 Obligations of the Purchaser
The Purchaser must at Completion pay in accordance with clause 4 (Purchase
Price) that part of the Purchase Price payable on the Completion Date.
6.5 Purchaser's rights
If any provision of clause 6.3 is not complied with in any respect on the
date set for Completion the Purchaser may:
(a) waive compliance with that provision;
(b) defer Completion to a date not more than five Business Days after the
date set for Completion (and the provisions of this clause 6
(Completion), including this clause 6.5, apply to Completion as
deferred);
(c) proceed to Completion as far as practicable (without prejudice to any
of its rights under this agreement); or
(d) if non-compliance is not capable of remedy within a period of 10
Business Days and is material, terminate this agreement by notice in
writing to the Vendor.
6.6 Vendor's rights
The Vendor:
(a) is entitled to retain after Completion copies of any Records necessary
for it to comply with any applicable law (including, without
limitation, any applicable Tax law) and to prepare Tax or other
returns required of them by law; and
(b) must not without the Purchaser's consent disclose any confidential
information relating to the Group or the Purchaser contained in any
copy Records retained under paragraph (a) (except as required by law
or the Listing Rules of ASX ) until that confidential information
becomes part of the public domain (otherwise than by breach of the
Vendor of its obligations under this
clause).
6.7 Conduct until the Shares are registered
After Completion and until the Shares are registered in the name of the
Purchaser, the Vendor must:
(a) convene and attend general meetings of the Company;
(b) vote at those meetings; and
(c) take as registered holder of the Shares all action,
as lawfully required by the Purchaser by written notice to the Vendor, but
nothing in this clause requires the Vendor to take any action which either
would or may in the Vendor's reasonable opinion cause it loss or detriment
(including without limitation loss or reduction of any Taxation concession
or deduction), or could be done by the Purchaser after the transfer of the
Shares is registered.
7. WARRANTIES BY THE VENDOR
7.1 Warranties
The Vendor represents and warrants to the Purchaser that each of the
Warranties is true and accurate at the date of this agreement and will be
true and accurate on each day up to and including the Completion Date.
7.2 Application of the Warranties
Each of the Warranties:
(a) remains in full force and effect after Completion until that day being
the third anniversary date after the Completion Date;
(b) is separate and independent and is not limited by reference to any
other Warranty; and
(c) applies in relation to the Company and also, except where expressly
otherwise provided, separately in relation to each Group Company as if
each reference in Schedule 4 (Warranties) to the 'Company' is a
reference to that Group Company.
7.3 Qualification
The Warranties are given subject to and are qualified by:
(a) those matters disclosed in this agreement;
(b) any other written information relating to any Group Company which has
been made available to the Purchaser by the Vendor before the date of
this agreement; and
(c) any information available on public registers maintained by any
relevant Governmental Authority.
7.4 Exclusions
The Purchaser agrees with the Vendor that:
(a) the only representations and warranties upon which the Purchaser has
relied in entering into this agreement are those set out in Schedule 4
(Warranties);
(b) to the extent permitted by law, all other warranties, representations
and undertakings (whether express or implied and whether oral or in
writing) made or given by the Vendor, any Group Company or their
respective employees, agents or representatives in connection with any
matters relevant to or connected with this agreement and the
transaction of sale and purchase contemplated by this agreement are
expressly excluded, have no force or effect and have not been relied
on by the Purchaser; and
(c) the only person entitled to make a claim for breach of Warranty under
this agreement is the Purchaser and then only strictly in accordance
with and subject to the provisions of this clause 7 (Warranties by the
Vendor).
7.5 Indemnity limitations
Despite any other provision of this agreement, the Vendor has no liability,
to the extent that:
(a) the subject matter of any claim is provided for in the Accounts or the
Completion Accounts; or
(b) any amount the subject of a claim is recovered under an insurance
policy in favour of any Group Company.
7.6 Indemnity
Subject to the provisions of this clause 7 (Warranties by the Vendor)
(including, without limitation, clauses 7.6 (Indemnity limitations), 7.7
(Financial limits on claims)
and 7.8 (Maximum aggregate liability for claims)), the Vendor indemnifies
the Purchaser:
(a) from all Liabilities which the Purchaser suffers or incurs by any of
the Warranties being untrue or inaccurate; and
(b) from all Claims made by any third party in relation to a matter which
constitutes, or in circumstances that constitute, a breach of any of
the Warranties.
7.7 Financial limits on claims
The Purchaser may not make a claim against the Vendor for a breach of any
Warranty unless and until the aggregate of all claims for breach of
Warranties under this agreement exceeds or has already exceeded $100,000.
7.8 Maximum aggregate liability for claims
The maximum liability of the Vendor (including legal costs and expenses
incurred in defending a claim from a third party), as a result of claims
for breach of Warranties under this agreement is limited to an amount equal
to the Purchase Price.
7.9 Notice of potential claim
If the Purchaser receives notice or otherwise becomes aware of any act,
matter or thing which is a claim under this clause 7 (Warranties by the
Vendor), it must notify the Vendor of that fact, together with all
available details, within 20 Business Days after it has first come to the
Purchaser's attention.
7.10 Notice of claim
Any claim made by the Purchaser under this clause 7 (Warranties by the
Vendor) must be by notice in writing to the Vendor setting out the act,
matter or thing relied upon as giving rise to the claim, the Warranty the
subject of the claim and all relevant details of the claim.
7.11 Rights of the Vendor
The Vendor is in respect of an act, matter or thing notified by the
Purchaser under clause 7.9 (Notice of potential claim) or 7.10 (Notice of
claim), entitled to defend or institute any legal or other proceedings,
conducted in the name of the Company and under the management and control
of the Vendor but with:
(a) reasonable consultation with the Purchaser; and
(b) legal representation approved by the Purchaser (which approval must
not be unreasonably withheld or delayed).
7.12 Notification of credit by the Purchaser
If any payment in respect of a claim under the Warranties is made to the
Purchaser by or on behalf of the Vendor and after the payment is made the
Purchaser receives any benefit or credit by reason of the matters to which
the claim relates, then the Purchaser:
(a) must immediately notify the Vendor of the benefit or credit; and
(b) pay to the Vendor an amount equal to that paid to the Purchaser by or
on behalf of the Vendor or (if less) the amount of the benefit or
credit received by the Purchaser,
and the Purchaser's payment will be treated as a credit against the
Vendor's maximum aggregate liability under clause 7.8 (Maximum aggregate
liability for claims).
7.13 Effect of payment
A payment to the Purchaser under this clause 7 (Warranties by the Vendor)
is to be treated as a pro rata reduction in the purchase price for each
Share.
7.14 Survival
The provisions of this clause 7 (Warranties by the Vendor) remain in full
force and effect after Completion.
8. WARRANTIES BY THE PURCHASER
8.1 Warranties
The Purchaser represents and warrants to the Vendor that each of the
following statements is true and accurate at the date of this agreement and
will be true and accurate on each day up to and including the Completion
Date:
(a) it is validly existing under the laws of its place of incorporation;
(b) it has the power to enter into and perform its obligations under this
agreement and to carry out the transactions contemplated by this
agreement;
(c) it has taken all necessary action to authorise its entry into and
performance of this agreement and to carry out the transactions
contemplated by this agreement;
(d) its obligations under this agreement are valid and binding and
enforceable against it in accordance with their terms; and
(e) neither it nor any party related to it has taken any action under
which any person is or may be entitled to a commission, brokerage or
finder's fee in connection with the sale and purchase of the Shares.
8.2 Application of Representations by the Purchaser
Each of the representations by the Purchaser under clause 8.1 (Warranties)
remains in full force and effect on and after Completion.
9. CONFIDENTIALITY AND PUBLICITY
9.1 Confidentiality
The Purchaser:
(a) must keep confidential any confidential information of the Vendor
and all Confidential Information disclosed to the Purchaser by or on
behalf of the Vendor, or of which the Purchaser becomes aware
(whether before or after the date of this agreement), except
information which is public knowledge otherwise than as a result of
a breach of confidentiality by the Purchaser or any of its permitted
disclosees; and
(b) may disclose any confidential information in respect of which the
Purchaser has an obligation of confidentiality under paragraph (a)
only:
(i) to those of the Purchaser's officers or employees or
financial, legal or other advisers who:
(A) have a need to know for the purposes of this agreement
for the provision of advice to the Purchaser in
connection with this agreement or the transactions
contemplated by it (and then only to the extent that
they need to know); and
(B) undertakes to the Purchaser (and, where required by the
Vendor, to the Vendor also) a corresponding obligation
of confidentiality to that undertaken by the Purchaser
under this clause 9.1;
(ii) if required to do so by law or the Listing Rules of ASX; or
(iii) with the prior written approval of the Vendor.
9.2 Confidential Information
The provisions of paragraphs (a) and (b) of clause 9.1 (Confidentiality)
apply:
(a) with respect to Confidential Information:
(i) until Completion; or
(ii) until and for a period of three years after termination of
this agreement,
whichever in fact occurs; and
(b) with respect to any other confidential information of the Vendor,
until that information is public knowledge (otherwise than as a
result of a breach of confidentiality by the Purchaser or any of its
permitted disclosees).
9.3 Announcements
A party must not make or authorise a press release, announcement or other
public statement or communication of any kind relating to the negotiations
of the parties or the subject matter or provisions of this agreement
('Announcement') unless:
(a) it is required to be made by law or the Listing Rules of ASX or the
American Exchange and before it is made that party has:
(i) notified the Purchaser and the Vendor; and
(ii) given the Purchaser and the Vendor a reasonable opportunity to
comment on the contents of, and the requirement for, the
Announcement; or
(b) it has the prior written approval of the Purchaser and the Vendor.
10. TERMINATION
10.1 Default
If the Vendor on the one hand or the Purchaser on the other hand
('Defaulting Party') defaults in the performance of any of its obligations
under this agreement and the default:
(a) is not capable of being remedied; or
(b) if capable of being remedied, is not remedied within three Business
Days after notice requiring it to be remedied is given to the
Defaulting Party by the party not in default,
the party not in default may immediately terminate this agreement by
giving notice in writing to all of the other parties.
10.2 After termination
On termination of this agreement for any reason each party must stop, and
must cause its permitted disclosees to stop, using confidential
information of another party and, at the other party's option:
(a) return to the other party;
(b) destroy and certify in writing to the other party the destruction
of; or
(c) destroy and permit a representative of the other party to witness
the destruction of,
all confidential information in its possession or control.
10.3 Survival
Clause 9 (Confidentiality and publicity), this clause 10 (Termination) and
any provision of this agreement which is expressed to survive termination
continue to apply after termination of this agreement.
10.4 Accrued rights
Termination of this agreement does not affect any accrued rights or
remedies of a party.
11. ASSIGNMENT
A party may not assign any of its rights under this agreement.
12. WAIVER
12.1 Waiver
A provision of or right under this agreement may not be waived except by a
waiver in writing signed by the party granting the waiver, and will be
effective only to the extent specifically set out in that waiver.
12.2 Rights exercisable
The failure of a party at any time to require performance of any
obligation under this agreement is not a waiver of that party's right:
(a) to insist on performance of, or claim damages for breach of, that
obligation unless that party acknowledges in writing that the
failure is a waiver; and
(b) at any other time to require performance of that or any other
obligation under this agreement.
13. NOTICES
13.1 Service of notices
A party giving or serving notice or notifying under this agreement must do
so in writing:
(a) directed to the recipient's address specified in this clause, as
varied by any notice; and
(b) hand delivered or sent by prepaid post or facsimile to that address.
The parties' addresses and facsimile numbers are:
Vendor: FAI Insurances Limited
Attention: Xxxxx XxxXxxxxxx
Address: 000 Xxxx Xxxxxx, Xxxxxx, XXX 0000
Facsimile No: 9274-9900
Purchaser: FAI Home Security Pty Limited
Attention: Xxxx Xxxxxxxx
Address: Xxxxx 0, 00 Xxxxxxx Xxxxxxx,
Xxxxx Xxxxxx, XXX
Facsimile No: 9936 2355
or such other address as a party may by notice in writing give to the
other from time to time.
13.2 Deemed receipt
A notice given in accordance with clause 13.1 (Service of notices) is
taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, two Business Days after the date of
posting; or
(c) if sent by facsimile, when the sender's facsimile system generates a
message confirming successful transmission of the total number of
pages of the notice unless, within one Business Day after the
transmission, the recipient informs the sender that it has not
received the entire notice.
13.3 Execution
A notice given in accordance with clause 13.1 (Service of notices) is
sufficiently signed for or on behalf of a party if:
(a) in the case of a company, it is signed by a director, secretary or
other officer of the company; or
(b) in the case of an individual, it is signed by that party.
13.4 Other modes of service permitted
The provisions of this clause 13 (Notices) are in addition to any other
mode of service permitted by law.
13.5 Interpretation
In this clause 'notice' includes a demand, request, consent, approval,
offer and any other instrument or communication made, required or
authorised to be given under this agreement.
14. GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applicable in New South Wales and
each party
irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of New South Wales.
15. GENERAL
15.1 Duration of provisions
On Completion, the provisions of this agreement will not merge and, to the
extent that any provision has not been fulfilled, will remain in force.
15.2 Costs
Each party must bear its own costs of negotiating, preparing and executing
this agreement.
16. ADJUSTMENT TO PURCHASE PRICE
If by reason of any failure:
(a) of any transaction document of the Company to comply with any law,
any amount or amounts which, but for that non-compliance, would have
been recoverable by the Company cannot be recovered; or
(b) to carry out or to carry out properly all or any procedures required
to perfect the title of the Company to the debts stated to be owing
to the Company in its balance sheet as at 31 December 1997, any
amount or amounts shown on that balance sheet are not recoverable;
or
(c) by reason of the matters referred in paragraph (a) or (b), the
Company is required to pay to any person either by way of damages,
reimbursement of monies paid prior to the closing date or otherwise,
then:
(d) such amount or amounts shall not be treated as part of any bad debt
provision;
(e) 50% of the total of any such amount or amounts shall be paid by the
Vendor to the Purchaser or, where there remains unpaid by the
Purchaser to the Vendor at the relevant time any monies on account
of the Purchase Price, the amount or amounts shall be set-off
against the balance unpaid; and
(f) the time of the deduction shall be the date when any amount or
amounts referred to in
this paragraph shall be determined to be not recoverable upon the
basis of such non-compliance or procedural deficiency.
EXECUTED as an agreement.
SIGNED for and on behalf of FAI ) FAI Insurances Limited by its Attorney who
INSURANCES LIMITED by ) states that at the time of executing this instrument
being its duly constituted Attorney in the ) the Attorney has not notice of the revocation of
presence of ) the Power of Attorney dated
) 1997 under the authority of which the Attorney
) has executed this agreement
---------------------------- ----------------------------------
Signature of witness Attorney
----------------------------
Name of witness (print)
SIGNED for and on behalf of FAI HOME ) FAI Home Security Pty Limited by its Attorney
SECURITY LIMITED by ) who states that at the time of executing this
being its duly constituted Attorney in the ) instrument the Attorney has not notice of the
presence of ) revocation of the Power of Attorney dated
) 1997 under the authority of which the Attorney
) has executed this agreement
---------------------------- ----------------------------------
Signature of witness Attorney
----------------------------
Name of witness (print)
SCHEDULE 1
PART 1
DETAILS OF THE COMPANY
(Warranties 2 and 3)
Name: FAI FINANCE CORPORATION PTY LIMITED
ACN: 053 262 561
Registered office: 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
Date of incorporation: 15 October 1991
Issued capital: $50 002 divided into 50 002 shares of $1.00 each,
held and beneficially owned by the Vendor
Directors: Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Xxxxxx
Secretary: Xxxxxx Xxxxxxxxx Baulderstone
Charges: Registered fixed and floating charge ASC Charge
No.545834 dated 28 June 1996 and registered at 16:40 on 2 July
1996 in favour of Westpac over the assets and undertaking of
the Company
PART 2
DETAILS OF SUBSIDIARY
(Warranties 2, 3 and 26)
Name: FAI FINANCE CORPORATION (NZ) LIMITED
AK: 808650
Registered office: Xxxxx 00, Coopers and Xxxxxxx Tower
Date of incorporation: 23 May 1996
Issued capital: 100 shares held beneficially by FAI Finance
Corporation Pty Limited
Directors: Xxxxx Xxxxxx Xxxxxxxxxxx
Secretary: Xxxxxx XxXxx
Charges: None registered
SCHEDULE 2
CONDITIONS
(clause 2 (Conditions))
Condition Party entitled to benefit
---------------------------------------------------------------------------------------------
1. Pursuant to the Foreign Acquisitions and Takeovers Act The Purchaser and the
1975 (Cth) ('FATA') the Treasurer of the Commonwealth Vendor
of Australia consents to the transfer of the Shares
contemplated by this agreement and if that consent is given
subject to conditions or requirements, those conditions or
requirements are acceptable to the Purchaser.
For the purpose of this Condition 1, the Treasurer will be
taken to have consented to the transfer of the Shares under
this agreement if:
(a) notice is issued under FATA stating that the
Commonwealth Government does not object to the
transfer of the Shares; or
(b) notice of the sale of the Shares is given to the
Treasurer under FATA and the Treasurer is, by
reason of lapse of time, not empowered to make an
order under FATA in relation to the transfer of the
Shares.
---------------------------------------------------------------------------------------------
2. Westpac consents in writing to the transaction of sale and The Vendor
purchase of the Shares contemplated by this agreement.
---------------------------------------------------------------------------------------------
3. The Purchaser has granted a fixed charge over the Shares The Vendor
in favour of the Vendor to secure the Purchase Price
Balance.
4. The Purchaser and the Vendor have entered into the
Shareholders Agreement.
---------------------------------------------------------------------------------------------
5. The Vendor and the Company have entered into the Trade The Purchaser and the
Xxxx Licence Agreement. Vendor
---------------------------------------------------------------------------------------------
6. The approval of Home Security International, Inc., the The Purchaser
holding company of the Purchaser, to the transaction of
sale and purchase of shares contemplated by this
agreement.
---------------------------------------------------------------------------------------------
7. The approval of the transaction of sale and purchase of The Purchaser.
shares contemplated by this agreement by a majority of
independent directors of Home Security International, Inc.
---------------------------------------------------------------------------------------------
SCHEDULE 3
DIRECTORS AND SECRETARIES TO BE APPOINTED
(clause 6.3(e))
FAI CREDIT CORPORATION PTY LIMITED
Directors: Xxxxx Xxxxxxxx and Xxxxxx Xxxxx
FAI FINANCE CORPORATION (NZ) LIMITED
Directors: Xxxxxxx Xxxxxx
SCHEDULE 4
WARRANTIES
(clause 1.1 (Definitions))
INDEX OF WARRANTIES IN THIS SCHEDULE
Definitions
1. Vendor's authority to sell
2. The Company
3. Share capital
4. Financial statements
5. Liabilities
6. No changes since Accounts Date
7. Records
8. Debts
9. Taxation
10. Ownership of assets
11. Real property
12. Contracts
13. Compliance with applicable laws
14. Litigation
15. Superannuation and employee benefits
16. Employees
17. Conduct of business
18. Subsidiaries
19. Accuracy of disclosed information
DEFINITIONS
In this schedule, unless the contrary intention appears:
'Associate' has the meaning given to that term by sections 10 to 17 of the
Corporations Law;
'Environmental Law' means a law relating to the environment, including without
limitation in relation to land use, planning, pollution of air or water, soil or
ground water contamination, chemicals, waste, use of dangerous or hazardous
goods or to any other aspect of protection of the environment or person or
property;
'Equipment Leases' means the Equipment Leases listed in Schedule 7 (Disclosures
against warranties);
'Fund' means the FAI Staff Productivity Superannuation Fund;
'Governmental Authority' means any governmental, semi-governmental, municipal or
statutory authority, instrumentality, organisation, body or delegate (including
without limitation any town planning or development authority, public utility,
environmental, building, health, safety or other body or authority) having
jurisdiction, authority or power over or in respect of the Company, the Business
or the Property;
'Intellectual Property Licences' means the licences granted to the Company
listed in paragraph 2 of Schedule 5 (Intellectual Property Rights);
'law' includes any statute, legislation, law, regulation, by-law, scheme,
determination, ordinance, rule or other statutory provision (whether
Commonwealth, State or municipal);
'Licence' includes any statutory licence, consent, registration, approval,
certificate, permit, authorisation, regulation, concession, permission,
determination, condition or exception under any law or from any Governmental
Authority;
'Owned Intellectual Property Rights' means all Intellectual Property Rights used
by the Company in the course of and for the purposes of the Business, including
(without limitation) the Intellectual Property Rights listed in Schedule 5
(Intellectual Property Rights) but excluding the Intellectual Property Licences;
'Plant and Equipment' means all plant, equipment (including computer equipment),
motor vehicles, machinery, furniture, fixtures and fittings used by any Group
Company;
'Tax', 'Taxes' or 'Taxation' means all forms of taxes, duties, imposts, charges,
withholdings, rates, levies or other governmental impositions of whatever nature
whenever and by whatever authority imposed, assessed or charged together with
all costs, charges, interest, penalties, fines, expenses and other additional
statutory charges incidental or related to the imposition;
'Tax Act' means the Income Tax Assessment Xxx 0000 (Cth); and
'Trust Deed' means trust deed dated 17 November 1988 establishing the Fund.
Warranty 1
(Vendor's authority to sell)
1.1 The Vendor is the registered holder and beneficial owner of the Shares.
1.2 The Vendor is validly existing under the laws of its place of
incorporation.
1.3 The Vendor has the power to enter into and perform its obligations under
this agreement and to carry out the transactions contemplated by this
agreement.
1.4 The Vendor has taken all necessary action to authorise its entry into
and performance of this agreement and to carry out the transactions
contemplated by this agreement.
1.5 The obligations of the Vendor under this agreement are valid and binding
and enforceable against it in accordance with their terms.
Warranty 2
(The Company)
2.1 The Company:
(a) is accurately described in Schedule 1;
(b) has full corporate power to own its properties, assets and business
and to carry on the Business as now conducted; and
(c) has good and marketable title to all of the assets included in the
Accounts.
2.2 No meeting has been convened, resolution proposed, petition presented or
order made for the winding up of the Company and no receiver, receiver
and manager, provisional liquidator, liquidator or other officer of the
court has been appointed or (to the Vendor's knowledge) threatened to be
appointed in relation to the Company or any part of its undertaking or
assets.
Warranty 3
(Share capital)
3.1 The issued shares of the Company:
(a) are held and beneficially owned by the Vendor and are paid up; and
(b) were all properly issued.
3.2 There are no:
(a) securities convertible into shares of the Company;
(b) options or other entitlements of any kind over any issued or
unissued shares of the Company.
Warranty 4
(Financial statements)
The Accounts:
(a) disclose a true and fair view of the affairs, financial position and
assets and liabilities of the Group as at the Accounts Date and of
the income, expenses and results of operations of the Group for the
financial year ended on the Accounts Date; and
(b) were prepared in accordance with the Accounting Standards, the
requirements of the Corporations Law and all other applicable laws
and on a basis consistent with the audited accounts of the Group for
the financial year preceding the financial year ended on the
Accounts Date.
Warranty 5
(Liabilities)
5.1 The Company has not given any guarantees, indemnities or letters of
comfort.
5.2 The Company has not granted or created any Encumbrance, debenture,
finance lease or other third party interest.
Warranty 6
(No changes since Accounts Date)
6. Since the Accounts Date:
(a) there has been no material adverse change in the assets,
liabilities, turnover, earnings or financial condition of the
Company;
(b) no dividend or distribution of capital or income has been declared,
made or paid in respect of any share capital of the Company whether
of cash, specific assets or otherwise;
(c) the Company has carried on the Business in the ordinary and usual
course and has not entered into any contracts or arrangements other
than in the ordinary course of carrying on the Business;
(d) the Company has not incurred or undertaken any actual or contingent
liabilities or
obligations, including Taxation, except in the ordinary
course of business;
(e) the Company has not acquired or disposed of or dealt with any assets
nor has it entered into any agreement or option to acquire or
dispose of any assets other than in the normal course of business
for full market value;
(f) the Company has not paid or agreed to pay any retiring allowance,
superannuation or benefit to any of its officers or employees except
where the law requires it or in accordance with a superannuation or
retirement scheme in force at the Accounts Date;
(g) the rights attaching to any issued or unissued shares in the Company
have not altered and no alteration has been made to the capital
structure of the Company;
(h) the Company has not implemented any new accounting or valuation
method for its business, assets or property;
(i) no loans have been made by the Company to employees, nor have any
advances or loan money been accepted from any employees;
(j) no resolutions have been passed by the members or directors of the
Company except in the ordinary course of business of the Company and
those necessary to give effect to this agreement.
Warranty 7
(Records)
7. The Records:
(a) are in the possession or under the control of the Company;
(b) have been fully, properly and accurately kept and maintained and are
up to date;
(c) accurately record the details of all of the transactions, finances,
assets and liabilities of the Company; and
(d) as far as necessary, have been prepared in accordance with the
requirements of the Corporations Law and the Accounting Standards.
Warranty 8
(Debts)
8. All debts owed to the Company and to Westpac under the Receivables
Purchase Agreement at Completion, less the amount of any provision for
bad and doubtful debts made on a basis consistent with the provision for
bad and doubtful debts in the Accounts,
will be good and fully collectable in the ordinary course of
business.
Warranty 9
(Taxation)
9.1 The Company has paid, or the Accounts fully provide for, all Taxes which
the Company is or may become liable to pay for the period up to and
including the Accounts Date.
9.2 The only liabilities for Tax of the Company arising in respect of the
period after the Accounts Date and ending on the Completion Date will be
liabilities arising out of the ordinary course of carrying on the
Business.
9.3 All Tax information required by law (including but not limited to
records, returns, elections and notices) to be lodged or kept by the
Company have been lodged with the appropriate authorities or kept as
required.
9.4 The Company is not involved in any audit of any of its Tax returns or
any dispute with any Taxation authority responsible for the assessment
and collection of Tax and the Vendor is not aware of any circumstances
which may give rise to such an audit or dispute.
9.5 The Company has maintained sufficient and accurate records and all other
information required to support all Tax information which has been or
may be lodged with any Taxation authority.
9.6 The Company has lodged or supplied all information regarding Taxation
matters as and when requested by a Taxation authority.
9.7 Any information, notice, computation or return which has been submitted
to a relevant authority by the Group in respect of any Taxation matter:
(a) discloses all material facts which should be disclosed under any
relevant Tax law; and
(b) has been submitted on time,
and all copies of any information, notice, computation or return
submitted to a relevant authority by the Group in respect of any
Taxation matter which has been supplied by the Vendor or their advisers
to the Purchaser or its advisers are true and complete copies of the
originals.
9.8 All liabilities for Group Tax or other tax payable in respect of
employees' salaries or wages has been paid in full by the due date or
dates.
Warranty 10
(Ownership of assets)
10.1 Except for the Intellectual Property Licences, those assets the subject
of the Equipment Leases and as otherwise disclosed in this agreement,
all of the property and assets included in the Accounts or which the
Company uses in the conduct of the Business are legally and beneficially
owned by the Company, free from Encumbrance.
Warranty 11
(Real property)
11.1 The Property comprises all the land and buildings used by the Company.
The Company does not own any real property.
11.2 The Company beneficially owns the benefit of a valid and enforceable
leasehold interest in the Leasehold Property under the Property Lease in
accordance with the provisions of the Property Lease. The Property Lease
has not been amended or modified and is not liable to forfeiture or
termination through any act or omission of the Company.
11.3 The Company has duly and punctually performed and is not in breach of
any covenants, terms, conditions and other provisions of the Property
Lease (including without limitation the permitted use of the Leased
Property).
Warranty 12
(Contracts)
12.1 The Company has duly performed and observed all its obligations, and the
other parties have duly performed and observed all their obligations,
under all contracts, arrangements or understandings to which the Company
is a party.
12.2 Each contract existing with respect to any receivable is in full force
and effect and is valid, binding and enforceable in accordance with its
terms.
Warranty 13
(Compliance with applicable laws)
13.1 The Company has complied with all applicable laws (whether applicable to
the conduct of the Business, the use of the Property and the other
assets of the Company or in any other manner) and no contravention or
allegation of any contravention of any applicable law is known to the
Company or the Vendor.
13.2 The Company:
(a) holds all Licences necessary for the use of each Property and for
the conduct of the Business; and
(b) has complied with all terms, conditions and other provisions of or
applicable to those Licences.
13.3 There are no minutes of directors meetings of the Company other than those
provided by the Purchaser to the Vendor for inspection prior to execution
of this agreement.
Warranty 14
(Litigation)
14.1 Neither the Company nor any person for whose acts or defaults the Company
may be vicariously liable is involved in any claim, litigation,
prosecution or arbitration in any court, tribunal or otherwise with an
indicative value in excess of $100,000 which have been brought other than
in the ordinary course of business.
14.2 There are no unsatisfied judgments, awards, claims or demands against the
Company.
Warranty 15
(Superannuation and employee benefits)
15.1 Except for its commitments to contribute to the Fund, the Company has no
obligation, liability or duty to make any payment to any person in respect
of any superannuation, retirement benefit, disability benefit, pension,
annuity, life assurance scheme or similar benefit or arrangement for the
benefit of any present or former director or employee of the Company or
their respective dependants.
15.2 The Fund is established under the Trust Deed.
15.3 The Company has complied in all material respects with all of its
obligations under and in respect of the Trust Deed, including making all
contributions to the Fund required to be made under the Trust Deed, under
any employment agreement or arrangement or by law. There is no outstanding
liability of the Company in respect of the Fund and the Fund is fully
funded to meet all potential claims for benefits by the members of the
Fund.
15.4 Full and proper records and accounts of the Fund have been kept, are
up-to-date, and disclose a true and fair view of the affairs of the Fund.
15.5 Neither the Company nor the trustees of the Fund have received notice of
any claim or dispute in relation to the Fund.
15.6 The transfer of Shares to the Purchaser under this agreement will not
cause an increase in the obligations of the Company to make contributions
to the Fund.
Warranty 16
(Employees)
16.1 Except as disclosed in Schedule 7 (Disclosures against warranties), all
contracts of employment to which the Company is a party can be terminated
by the Company by notice of 30 days or less.
16.2 The Company has complied in all material respects with all contractual,
statutory, legal and fiscal obligations of and in relation to its
employment of its employees, including without limitation all withholding
obligations, all codes of practice, collective agreements and awards.
16.3 The Company does not operate any bonus, profit share or employee incentive
plans or schemes for its employees or officers.
Warranty 17
(Conduct of business)
To the knowledge of the Vendor, no practice carried on by the Company or
contract, arrangement or understanding to which the Company is a party:
(a) is or should be notified or authorised under the Trade Practices Xxx
0000 or is or has been the subject of an inquiry under that Act; or
(b) infringes any other competition, anti-restrictive trade practice,
anti-trust or other consumer protection or environmental laws
applicable to the Company in Australia.
Warranty 18
(Subsidiary)
18.1 No Group Company:
(a) holds or beneficially owns shares or other securities in the capital of
another company (except for the shares held in the Subsidiary);
(b) has agreed to buy any securities in any other Australian or overseas
company; and
(c) is or has agreed to become a member of any partnership, unincorporated
association, joint venture or consortium.
18.2 The issued shares of the Subsidiary are held and beneficially owned and
are paid up as set out in part 2 (Details of Subsidiary) of Schedule 1 and
were properly issued, and those shares comprise all of the issued shares
of th e Subsidiary.
Warranty 19
(Accuracy of disclosed information)
All:
(a) factual statements which the Vendor, the Company or any of their
respective employees, agents or advisers have given to the Purchaser or
its advisers relating to the Business, activities, affairs, assets and
liabilities of the Company; and
(b) facts in the recitals and schedules relating to the Vendor, the Company
or the Business,
are accurate in all material respects except as updated by factual
statements subsequently provided.
SCHEDULE 5
INTELLECTUAL PROPERTY RIGHTS
(Schedule 4 (Warranties))
Copyright and confidential information
Copyright and confidential information in all databases, source codes, software,
methodologies, manuals, artwork and advertising materials used in the Business
or by any Group Company.
Intellectual Property Licences
The benefit of any computer software licences granted to any Group Company:
SCHEDULE 6
PROPERTY
(clause 1.1 (Definitions))
LEASEHOLD PROPERTY AND PROPERTY LEASE
Leasehold Property: Xxxxx 0,000 Xxxx Xxxxxx, Xxxxxx
Xxxx: Monthly tenancy
