--------------------
Dated 18 August 1999
Agreement for Purchase of
Shares
Xxxxxx Xxxxx Xxxx
Ashcliff Pty Ltd (ACN 057 727 198)
as trustee for the XX Xxxx
Children's Trust
("Vendors")
RoweCom, Inc.
("Purchaser")
Xxxxxxx Xxxx
("Covenantor")
Mallesons Xxxxxxx Xxxxxx
Solicitors
Xxxxx 00, Xxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxx
XXXXXXXX XXX 0000
Tel (00) 0000 0000
Fax (00) 0000 0000
Ref: JSH / MJB
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Contents Agreement for Purchase of Shares
================================================================================
1 Interpretation 1
2 Sale and purchase of Shares 5
3 Purchase Price 5
4 Conditions precedent 6
Due diligence 6
Transfer of Business Premises 6
Termination 6
5 Completion 7
Where and when 7
Payment of Repayable Receivables 7
Vendor's obligations 7
Purchaser's obligations 8
Date of effect 8
6 Payment of the Purchase Price 8
Purchase Price due on Completion 8
Stakeholder to retain the Retention Amount 8
Release to the Vendor 9
Release to Purchaser - post Last Balance Date liabilities 9
Release to the Purchaser - service commitment 9
Release to the Purchaser - Warranties 10
Notice of Purchaser's claim 10
Dispute Resolution 10
Stakeholder may release Retention Amount 10
Stakeholder's obligations 11
Form of Payment 11
7 Conduct of business pending Completion 11
8 Risk and insurance 12
Vendor to insure until Completion 12
Damage to assets 12
9 Access to Records 13
10 Superannuation 14
11 Warranties, representations and indemnities 14
Warranties 14
Reliance 14
Representations 15
Indemnity 15
Right to terminate 15
Winding up of Vendor 15
Release of Covenantor 15
12 Adjustment for Tax liability 15
13 Default by Vendors 20
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14 Restraint 20
15 New Lease 22
Agreement to lease 22
Initial rent 22
16 Costs and stamp duty 23
17 Power of attorney 23
18 Notices 24
19 Assignment 25
20 Miscellaneous 25
Exercise of rights 25
Waiver and variation 25
Approvals and consent 25
Remedies cumulative 25
No merger 25
Survival of indemnities 25
Enforcement of indemnities 25
Further assurances 25
Publicity 26
Time of the essence 26
Entire agreement 26
Execution by facsimile 26
21 Governing law, jurisdiction and service of process 26
22 Redundancy payments for employees 26
Appendix Warranties and Representations 28
Schedule 1 Vendors and Shareholdings 40
Schedule 2 Mortgages and other Encumbrances over the Company 4l
Schedule 3 Bank Accounts and Signatories 42
Schedule 4 Contracts with the Vendors 44
Schedule 5 Not used 45
Schedule 6 Not used 46
Schedule 7 List of Plant and Equipment 47
Schedule 8 Particulars of Equipment Leases 51
Schedule 9 Particulars of Registered and Unregistered
Intellectual Property 52
Schedule 10 Banking Facilities 55
Schedule 11 Contracts of Insurance 56
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Agreement for Purchase of Shares
Date:
Parties: ASHCLIFF PTY LTD (ACN 057 727 198) as trustee for the XX
XXXX CHILDREN'S TRUST ("Ashcliff") and XXXXXX XXXXX XXXX
(collectively "Vendors" and individually "Vendor")
ROWECOM INC. a company incorporated in the United States
of America having its registered office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx in the State of Massachusetts in the
United States of America ("Purchaser")
XXXXXXX XXXX of 0 Xxxxxx Xxxxx, Xx Ommaney in the State
of Queensland ("Covenantor")
Recitals:
A. International Subscription Agencies Pty Ltd (ACN 009 872
217) is a company incorporated in Queensland and has its
registered office at Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxxx in the State of Queensland ("Company").
B. The Company has an issued capital of 1 x "A" class share
fully paid, 1 x "B" class share fully paid, 1 x "C"
class share fully paid, 1 x "D" class share fully paid,
4,000 ordinary shares fully paid and 210,000 x class
redeemable preference shares fully paid.
C. The Vendors are the registered holders and beneficial
owners of all the issued shares in the capital of the
Company ("Shares") as set out in Schedule 1 opposite the
name of each Vendor.
D. The Vendors have agreed to sell and the Purchaser has
agreed to purchase the Shares on the following terms.
E. The Covenantor is a director of the Company and Ashcliff
and acknowledges giving the warranties and undertakings
in this agreement in consideration for the Purchaser
entering into this agreement.
Operative provisions:
1 Interpretation
================================================================================
1.1 The following words have these meanings in this
agreement unless the contrary intention appears.
Accounting Standards means the Australian Accounting
Standards from time to time and 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.
Business Day means a day on which trading banks are open
for general business in Brisbane.
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Business Premises means the Level 2 Premises and the
Level 4 Premises.
Company means International Subscription Agencies Pty
Ltd ACN 009 872 217.
Completion means settlement of the sale and purchase of
the Shares in accordance with clause 5 and Complete has
a corresponding meaning.
Completion Date means the day following the date of
execution of this agreement or any other date agreed by
the Vendors and the Purchaser.
Confidential Information means all trade secrets and all
financial, marketing and technical information, ideas,
concepts, know-how, technology, processes and knowledge
which is confidential or of a sensitive nature, but
excludes that which is in the public domain.
Contaminant means a solid, liquid, gas, odour, heat,
sound, vibration, radiation or substance which makes or
may make the Business Premises or the surrounding
Environment:
(a) unsafe or unfit for habitation or occupation by
persons or animals;
(b) degraded in its capacity to support plant life;
or
(c) otherwise environmentally degraded.
Dollars, AUD, A$ and $ means the lawful currency of
Australia
Environment means the physical factors of the
surroundings of persons including the land, waters,
atmosphere, climate, sound, odours, taste, the
biological factors of animals and plants and the social
factor of aesthetics.
Environmental Law means a law regulating or otherwise
relating to the Environment, including but not limited
to any law relating to land use planning, pollution of
air or water, soil or ground water contamination,
chemicals, waste, use of dangerous goods or to any other
aspect of protection of the environment or person or
property.
Equipment Leases means leases of, and agreements to
hire, equipment (including motor vehicles) to the
Company.
Intellectual Property Licences means all agreements
under which the Company obtains the right to use, but no
ownership of, any of the Intellectual Property Rights
referred to in paragraphs (a) to (d) of the definition
of that term.
Intellectual Property Rights means:
(a) the business names owned or used at any time by
the Company;
(b) all trade marks owned or used at any time by the
Company;
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(c) all Confidential Information owned or used at
any time by the Company;
(d) all patents, patent applications, discoveries,
inventions, registered and unregistered designs,
copyright and similar rights owned or used at
any time by the Company; and
(e) the Intellectual Property Licences.
Last Accounts means the unaudited balance sheet of the
Company as at the Last Balance Date and the unaudited
profit and loss account of the Company for the year
ending on the Last Balance Date copies of which are
attached as annexure A.
Last Balance Date means 30 June 1999.
Leased Plant and Equipment means the subject matter of
the Equipment Leases.
Level 2 Lease means any existing agreement or
arrangement for the occupancy of the Xxxxx 0 Xxxxxxxx.
Xxxxx 2 Premises means the Company's place of business
at Xxxxx 0, 00 Xxxxxxxx Xxxx, Xxxxxxx in the State of
Queensland, more particularly described as Xxx 0 xx XXX
00000, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx
Level 4 Lease means the Company's lease of the Xxxxx 0
Xxxxxxxx.
Xxxxx 4 Premises means the Company's place of business
at Xxxxx 0, 00 Xxxxxxxx Xxxx, Xxxxxxx in the State of
Queensland, more particularly described as Xxx 00 xx XXX
00000, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx.
New Lease means the lease of the Level 2 Premises to the
Company in the form set out at Schedule 12, completed in
accordance with clause 15.
Plant and Equipment means all plant, equipment, motor
vehicles, machinery, furniture, fixtures and fittings
owned and used by the Company on hand on the Completion
Date.
Purchase Price means the aggregate consideration payable
for the Shares calculated in accordance with clause 3.
Purchase Price due on Completion means that part of the
Purchase Price to be paid on Completion, and consists of
AUD$1,832,652.00
Repayable Receivables means those receivables (with an
aggregate value of $634,765 as at 30 June 1999) being
the items described in Note 2 to the Last Accounts, and
more particularly, comprising the following items:
(b) XX Xxxx Children's Trust pre 4/12/97;
(c) XX Xxxx pre 4/12/97; and
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(d) XX Xxxx post 4/12/97.
Retention Amount means an amount equal to the total
consideration specified in clause 3 reduced by the
Purchase Price due on Completion (excluding the effect,
if any, of clause 6.2).
Records means originals and copies, in machine readable
or printed form, of all books, files, reports, records,
correspondence, documents and other material of or
relating to or used in connection with the Company
including:
(a) minute books, statutory books and registers,
books of account and copies of taxation returns;
(b) sales literature, market research reports,
brochures and other promotional material
(including printing blocks, negatives, sound
tracks and associated material);
(c) all sales and purchasing records;
(d) all trading and financial records; and
(e) lists of all regular suppliers and customers.
Related Body Corporate of a body corporate means another
body corporate which is related to the first within the
meaning of section 50 of the Corporations Law.
Shares means the issued shares in the capital of the
Company agreed to be sold under this agreement and Share
means any one of those shares.
Stakeholder means Mallesons Xxxxxxx Xxxxxx.
Warranties means the warranties, representations and
indemnities in this agreement, including clause 11.
Westlake Property means the residential property located
at Xxxxxx Xxxxx, Xxxxxxxx more particularly described as
Lot 6285 on RP 143752 in the Parish of Oxley, County of
Xxxxxxx.
1.2 In this agreement unless the contrary intention appears:
(a) a reference to a clause, schedule, annexure or
appendix is a reference to a clause of or
schedule, annexure or appendix to this agreement
and references to this agreement include any
recital, schedule, annexure or appendix;
(b) a reference to this agreement or another
instrument includes any variation or replacement
of either of them:
(c) a reference to a statute, ordinance, code or
other law includes regulations and other
instruments under it and consolidations,
amendments, re-enactments or replacements of any
of them;
(d) the singular includes the plural and vice versa;
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(e) the word person includes a firm, a body
corporate, an unincorporated association or an
authority;
(f) a reference to a person includes a reference to
the person's executors, administrators,
successors, substitutes (including, but not
limited to, persons taking by novation) and
assigns;
(g) an agreement, representation or warranty in
favour of two or more persons is for the benefit
of them jointly and severally;
(h) an agreement, representation or warranty on the
part of two or more persons binds them jointly
and severally;
(i) if a period of time is specified and dates from
a given day or the day of an act or event, it is
to be calculated exclusive of that day; and
(j) a reference to a day is to be interpreted as the
period of time commencing at midnight and ending
24 hours later.
1.3 Headings are inserted for convenience and do not affect
the interpretation of this agreement.
2 Sale and purchase of Shares
================================================================================
2.1 Each Vendor agrees to sell and transfer to the Purchaser
and the Purchaser agrees to purchase from that Vendor,
on the terms and conditions of this agreement, the
number of the Shares held by that Vendor set out in
column 2 of Schedule 1.
2.2 The Shares must be transferred free from any mortgage,
charge, lien, pledge or other encumbrance and with all
rights, including dividend rights, attached or accruing
to them on and from the date of this agreement.
2.3 The Purchaser is not obliged to Complete unless each
Vendor is ready, willing and able to Complete
simultaneously.
2.4 Each Vendor waives in favour of the Purchaser any
pre-emptive or other rights which that Vendor has now or
might otherwise have in respect of any of the Shares
held by each other Vendor.
3 Purchase Price
================================================================================
3.1 The total consideration payable for all of the Shares in
the Company is AUD$2,293,836.00, comprising:
(a) the Purchase Price due on Completion; and
(b) the Retention Amount.
3.2 The consideration payable is to be apportioned as
follows:
(a) $1.00 for each:
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(i) "Z" class redeemable preference share;
and
(ii) "A", "B", "C" and "D" class share; and
(b) the balance equally between all other shares.
4 Conditions precedent
================================================================================
Due diligence
4.1 Intentionally deleted.
Transfer of Business Premises
4.2 Completion of this agreement is also conditional upon:
(a) the lessor of the Level 4 Premises consenting to
the change of control of the Company; and
(b) deed of appointment of new trustee for the ISA
Superannuation Fund; and
(c) any mortgagee of the Xxxxx 0 Premises located at
00 Xxxxxxxx Xxxx, Xxxxxxx consenting to the New
Lease.
The Vendor must use its best endeavours to procure
fulfilment of these conditions as soon as possible and
the Purchaser agrees to do all things which may
reasonably be required by the Vendor to obtain those
consents and the releases of the personal guarantees
given by the Covenantor and Xxxxxx Xxxxx Xxxx of the
obligations of the Company under the Level 4 Lease.
4.3 The Purchaser may terminate this agreement by written
notice to the Vendor if any of the conditions in clause
4.2 are not fulfilled by the Completion Date.
Termination
4.4 If this agreement is terminated under clause 4.3, then,
in addition to any other rights, powers or remedies
provided by law:
(a) each party is released from its obligations to
further perform the agreement except those
imposing on it obligations of confidentiality;
(b) each party retains the rights it has against any
other party in respect of any past breach; and
(c) the Purchaser must return to the Vendors any
Records given to it under clause 9.
4.5 Clauses 4.1. 4.2 and 4.3 are inserted for the benefit of
the Purchaser only.
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5 Completion
================================================================================
Where and when
5.1 Completion of the sale and purchase of the Shares will
take place at 2.00 pm on the Completion Date at the
offices of Mallesons Xxxxxxx Xxxxxx, Solicitors, Xxxxx
00, Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxx, Xxxxxxxx, or such
other time and place as the Vendors and the Purchaser
may agree.
Payment of Repayable Receivables
5.2 The Vendors will procure that the Repayable Receivables
of the Company are repaid to the Company on or prior to
Completion.
Vendor's obligations
5.3 The Vendors agree to do the following on Completion:
(a) establish to the reasonable satisfaction of the
Purchaser that the conditions precedent set out
in clause 4.2 have been satisfied and (if
appropriate) deliver to the Purchaser
documentation proving that; and
(b) deliver to the Purchaser or its solicitors:
(i) a copy of an executed transfer of the
Westlake Property from the Company to
Xxxxxx Xxxxx Xxxx; and
(ii) a copy of an executed and release of
mortgage for the Westlake Property,
together with an undertaking from the
Vendors to procure stamping and lodgment
for registration of the transfer within
7 days after Completion (and in respect
of which the Vendors indemnify the
Purchaser for any loss or damage it
suffers as a consequence of any failure
by it to comply with this obligation or
to procure registration of the
transfer); and
(iii) a stamped and executed surrender of the
Level 2 Lease from the Completion Date
and consent to the Purchaser's caveat
over the Level 2 Premises pending
registration of the New Lease, both
capable of immediate registration; and
(iv) executed transfers in favour of the
Purchaser of all the Shares together
with the share certificates for the
Shares and consents that the Purchaser
reasonably requires; and
(v) subject to clause 15, the executed New
Lease (2 copies) in immediately
registrable form (subject only to
stamping) together with any other
document reasonably required by the
Purchaser to procure the stamping and/or
registration of the New Lease; and
(c) cause:
(i) the board of directors of the Company to
direct that subject to the payment of
stamp duty, the transfers of the Shares
are registered;
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(ii) the delivery to the Purchaser or its
nominee of the Records, the common seal
and any other company seals of the
Company;
(iii) the delivery to the Purchaser or its
nominee of duly completed bank
authorities authorised by the board of
directors of the Company directed to
that company's bankers authorising the
operation of each of its bank accounts
by nominees of the Purchaser; and
(iv) subject to the articles of association
of the Company, the appointment to the
board of directors of the Company of the
Purchaser's nominees and the resignation
from those boards, on terms approved by
the Purchaser, of all existing directors
but so that a properly constituted board
of directors is in existence at all
times.
Purchaser's obligations
5.4 If the Vendors comply with clause 5.3, the Purchaser
agrees to:
(a) make payment in accordance with clause 6.1 on
Completion; and
(b) make payment to the Vendors in accordance with
clause 6.6 and clause 6.6A on the first
anniversary and second anniversary of the
Completion Date respectively.
Date of effect
5.5 Subject to Completion taking place and the satisfaction
of any conditions subsequent to Completion, the
Purchaser will be deemed to have acquired the Shares on
1 August 1999.
5.6 Despite clause 5.5, the Purchaser will not be deemed:
(a) to be entitled to any profits; and
(b) to have assumed any liabilities or obligation.
in relation to the Westlake Property.
6 Payment of the Purchase Price
================================================================================
Purchase Price due on Completion
6.1 Subject to clause 6.2, the Purchaser agrees to pay the
Purchase Price due on Completion to the Vendors, to be
apportioned between the Vendors as they direct by way of
payment of AUD$l,832,652.00.
6.2 If the Repayable Receivables of the Company are not
repaid to the Company prior to Completion in accordance
with clause 5.2, the Purchase Price due on Completion
will be reduced by an amount equal to the amount of the
Repayable Receivables that has not been repaid.
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Stakeholder to retain the Retention Amount
6.3 At Completion, the Purchaser must pay the Retention
Amount to the Stakeholder. The Stakeholder must invest
the Retention Amount in an interest beating deposit
account with the National Australia Bank (unless
otherwise directed in writing by all parties), on behalf
of all parties and at the risk of whichever party or
parties are entitled to all or any part of it. Each
party must notify the Stakeholder of its tax file number
by the Completion Date.
6.4 The fees and charges directly associated with the
maintenance of the investment account for the Retention
Amount will:
(a) in the first instance, be deducted from the
interest accruing on the account; and
(b) thereafter, be deducted from the Balance of
Purchase Price.
6.5 The Stakeholder may only, and is authorised and directed
by the parties to, release the Retention Amount to the
party or parties entitled to it in accordance with this
clause 6.
Release to the Vendor
6.6 On the first anniversary of the Completion Date, the
Stakeholder must release one third of the balance of the
Retention Amount less any amount the subject of an
unpaid claim of the type referred to in clauses 6.9 or
6.10 to the Vendors. If there is an unpaid claim under
those clauses which is disputed by the Vendors under
clause 6.11, and that claim is subsequently determined
in whole or in part in favour of the Vendors, the
Stakeholder must, as soon as possible after that
determination, release a further amount from the
Retention Amount to the Vendors equal to one third of
the amount of the claim determined in their favour.
6.6A On the second anniversary of the Completion Date, the
Stakeholder must promptly release to the Vendors any
part of the Retention Amount and interest accrued on
that amount, which the Purchaser is not entitled to
receive under this clause 6 and which is not required
for the purposes of clause 6.4.
Release to Purchaser - post Last Balance Date liabilities
6.7 Internationally deleted.
6.8 Intentionally deleted.
Release to the Purchaser - service commitment
6.9 Subject to clauses 6.11 and 6.12, if Xxxxxx Xxxxx Xxxx
does not continually serve as General Manager of the
Company in accordance with this agreement and any other
agreement between them for any full year during the two
years from the Completion Date (excluding any period of
service not rendered due to the unlawful termination of
Xxxxxx Xxxxx Xxxx by the Company or the termination of
his employment by the company pursuant to clause 9-3 of
the agreement for service between the parties or death
or disability), then the Purchaser is entitled to
receive AUD$210,000.00 from the Retention Amount (or, if
the Retention Amount is less than that, then the balance
of the Retention Amount).
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Release to the Purchaser - Warranties
6.10 Subject to clauses 6.11 and 6.12 but without limiting
clause 12.5, the Purchaser is entitled to receive from
the Retention Amount, compensation for any liability or
loss arising directly or indirectly from, and any costs,
charges and expenses incurred in connection with, any
material inaccuracy in or breach of any of the
Warranties.
Notice of Purchaser's claim
6.11 The Stakeholder must not release any part of the
Retention Amount under clauses 6.9 or 6.10 unless:
(a) the Vendors have been provided with written
notice of the Purchaser's claim to an
entitlement under those clauses (which notice
may be provided by the Purchaser or the
Stakeholder and must provide reasonable details
of the basis for the claim and the amount
claimed); and
(b) a period of at least 28 days has elapsed since
that notice was given and the Vendors have not:
(i) notified the Purchaser or the
Stakeholder in writing that they dispute
the entitlement or the amount claimed;
or
(ii) in the case of a claim under clause
6.10, otherwise remedied (where
possible) the inaccuracy or breach.
6.12 The Purchaser is not entitled to any part of the
Retention Amount pursuant to clauses 6.9 or 6.10, unless
it has given, or caused to be given, to the Vendors
notice in accordance with clause 6.11(a) within 3 months
after it has become aware of all facts reasonably
necessary to enable it to form an opinion that it is
entitled to make a claim under the relevant clause.
6.13 If the Vendors notify the Purchasers that they dispute
the Purchaser's entitlement to a payment, or the amount
of the payment claimed pursuant to clause 6.11 (b)(i),
the parties must negotiate in good faith to reach an
agreement in relation to the claim.
Dispute Resolution
6.14 If the parties fail to reach agreement under clause 6.13
within 90 days after the notice was given by the
Purchaser to the Vendors, then the dispute may be
referred by any party for determination by an
independent person nominated by the President of the
Queensland Law Society in accordance with the procedures
specified in clauses 8.4. 8.5 an.. 8.7. Despite any such
referral, either party may at any time commence legal
proceedings in relation to the dispute.
Stakeholder may release Retention Amount
6.15 The Stakeholder may release any part of the Retention
Amount in accordance with the terms of:
(a) this Agreement:
(b) any court order; or
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(c) an independent determination made under clause
6.14, unless the Stakeholder is aware that legal
proceedings have been commenced by either party
in relation to the dispute.
Stakeholder's obligations
6.16 The Stakeholder is under no obligation to investigate
the merits of any claim to an entitlement under this
clause 6 except, for the purposes of clause 6.9 and
6.10, the Stakeholder must sight a copy of the notice
provided by the Purchaser under clause 6.11(a). In the
absence of negligence or knowing breach of this clause
6, the Stakeholder is released by the parties from all
liability in relation to the release of the whole or any
part of the Retention Amount
6.17 Despite anything else in this agreement
(a) the Stakeholder
(i) is not obliged to pay more to any party
than remains in the Account at the time
it is notified of a party's claim; and
(ii) need not pay any party an amount which
is the subject of a prior claim; and
(iii) may prepare and lodge any taxation
return necessary in respect of the
Retention Amount and interest and to pay
any tax assessed in relation to the
interest (in respect of which the
Vendors will be deemed to presently
entitled); and
(b) the Purchaser cannot be required to pay any
further amount to the Vendors to meet any
payment under this clause 6.
6.18 In the absence of negligence or knowing default on the
part of the Stakeholder, the parties indemnify the
Stakeholder for any cost, expense, liability or loss
which it incurs as a consequence of being the
stakeholder under this agreement
Form of Payment
6.19 Subject to clause 6.20, each cash payment referred to in
clause 6 must be made by bank cheque, trust account
cheque or by electronic transfer of clear funds into an
Australian bank account of the Vendor as nominated by
the Vendor to the Purchaser in writing.
6.20 The payment under clause 6.1 must be made on the
Completion Date in by electronic transfer of clear funds
into all Australian bank of the Vendor as nominated by
the Vendor to the Purchaser in writing.
7 Conduct of business pending Completion
================================================================================
7.1 Until Completion the Vendors must, unless the Purchaser
otherwise agrees, procure that the Company:
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(a) carries on its business in a normal, proper and
efficient manner and regularly consults with the
Purchaser on the manner of conduct of its
business;
(b) uses all reasonable endeavours to preserve the
goodwill of its business;
(c) maintains its assets at normal levels; and
(d) carries out repairs and maintenance to the Plant
and Equipment, the Leased Plant and Equipment
and the Business Premises in accordance with
good commercial practice and standards of
maintenance and as required under the Equipment
Leases and the Property Leases.
7.2 Until Completion the Vendors must, unless the Purchaser
otherwise agrees, procure that the Company does not
(a) increase, reduce or otherwise alter its share
capital or grant any options for the issue of
shares or other securities;
(b) declare or pay a dividend;
(c) make a distribution or revaluation of assets;
(d) buy back its shares;
(e) enter into any abnormal or unusual transaction
which relates to or adversely affects its
business;
(f) enter into any contract involving total
expenditure in excess of $100,000;
(g) purchase any asset for more than $100,000 or
total assets costing more than $200,000; or
(h) allow the total amount owing to trade creditors
to exceed the monthly average for the previous 6
months.
8 Risk and insurance
================================================================================
Vendor to insure until Completion
8.1 The Vendors must procure that the Company takes out and
maintains until Completion insurance of the company's
assets covering such risks and for such amounts as would
be maintained in accordance with prudent business
practice.
Damage to assets
8.2 If any of the assets of the Company are damaged,
destroyed or otherwise affected before Completion to a
degree that materially and adversely affects the conduct
or profitability of the business of the Company, the
Purchaser may terminate this agreement by notice to the
Vendors.
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8.3 If:
(a) the Purchaser does not elect to terminate this
agreement under clause 8.2; and
(b) the Company is not adequately insured under the
contracts of insurance referred to in clause
8.1,
then an appropriate adjustment will be made to the
Purchase Price as agreed between the Vendors and the
Purchaser.
8.4 If the Vendors and the Purchaser are unable to agree on
the adjustment within 21 days of the Completion Date,
then either the Vendors or the Purchaser may refer the
disagreement to an independent valuer with the request
that the independent valuer make a decision in respect
of the disagreement as soon as practicable after
receiving the reference and any submissions from the
Vendors and the Purchaser. If the Vendors or Purchaser
cannot agree on the independent valuer within seven days
of one requesting appointment, then the independent
valuer is to be the person nominated by the President of
the Australian Institute of Chartered Accountants
(Queensland Branch) at the request of the Vendors or the
Purchaser.
8.5 The independent valuer will be appointed as an expert
and not as an arbitrator. The procedures for
determination are to be decided by the independent
valuer in its absolute discretion.
8.6 The decision of the independent valuer is to be
conclusive and binding on the parries in the absence of
manifest error.
8.7 The Vendors (collectively) and the Purchaser agree to
each pay one half of the independent valuer's costs and
expenses in connection with the reference.
8.8 If this agreement is terminated under clause 8.2 then
clause 4.3 applies with the necessary changes.
9 Access to Records
================================================================================
9.1 The Vendors agree to ensure that the Purchaser and its
representatives are allowed full and free access to the
premises and Records of the Company at all reasonable
times before the Completion Date to enable the Purchaser
to become familiar with the affairs of the Company,
investigate the accuracy of the Warranties.
9.2 The Vendors must also provide the information,
assistance and facilities that the Purchaser reasonably
requires for the purposes set out in clause 9.1.
9.3 If for any reason the Purchaser does not proceed with
the purchase of the Shares it may not disclose or use
any information made available by the Vendors relating
to the business and affairs which is not in the public
domain or information already known to the Purchaser at
the time of the relevant disclosure.
14
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10 Superannuation
================================================================================
10.1 In this clause 10 and Warranties 98 to 112 in Appendix A
the following words have these meanings:
Fund means the Sunsuper Fund (Trustee: Sunsuper).
Trust Deed means the trust deed that established the
Fund, as amended.
10.2 Intentionally deleted.
10.3 The Vendors agree to ensure that both before and after
the Completion Date the Purchaser and any actuary
appointed by it are provided with all records and
information which they may require (including detailed
information about each of the members and their
participation in the Fund), which is in the Vendor's
possession or control, in order to verify the
correctness of any calculations or values to be
ascertained for the purposes of this agreement
(including the Warranties), and to enable the Purchaser
to take over responsibility for and administer
superannuation arrangements for members. This obligation
extends to any records, information or systems which are
recorded, maintained or otherwise dependent on any
computerised or similar system or service.
11 Warranties, representations and indemnities
================================================================================
Warranties
11.1 Each of the Vendors and the Covenantor represents and
warrants to the Purchaser that each of the statements
set out in the appendix to this agreement is accurate.
Each of the statements is to be treated as a separate
representation and warranty and the interpretation of
any statement made may not be restricted by reference to
or inference from any other statement.
11.2 The Warranties are not extinguished or affected by any
investigation made by or on behalf of the Purchaser into
the affairs of the Company or by any other event or
matter unless:
(a) the Purchaser has given a specific written
waiver or release;
(b) the claim relates to a matter which is fairly
disclosed in a formal disclosure letter given by
or on behalf of the Vendors to the Purchaser
before the date of this agreement; or
(c) the claim relates to a thing done or not done
after the date of this agreement at the request
or with the approval of the Purchaser.
Reliance
11.3 Each of the Vendors and Covenantors acknowledges that it
has made and given the Warranties with the intention of
inducing the Purchaser to enter into this agreement and
that the Purchaser has entered into this agreement in
full reliance on the Warranties.
15
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Representations
11.4 Each of the Vendors and Covenantor represents, warrants
and undertakes to the Purchaser that each of the
Warranties is true and correct on the date of this
agreement and will be at the Completion Date as if made
on and as at each of those dates.
Indemnity
11.5 Each of the Vendors and Covenantor indemnifies the
Purchaser against all liability or loss arising directly
or indirectly from, and any costs, charges and expenses
incurred in connection with, any inaccuracy in or breach
of any of the Warranties.
11.6 If a payment is made for a breach of any Warranty, the
payment is to be treated as an equal reduction in the
Purchase Price of each Share.
Right to terminate
11.7 If any material breach or inaccuracy of any of the
Warranties becomes apparent to the Purchaser on or
before Completion the Purchaser may, by notice to the
Vendors, terminate this agreement without prejudice to
any other remedy available to it. If this agreement is
so terminated then clause 4.3 applies with the necessary
changes.
Winding up of Vendor
11.8 Each of the Vendors and the Covenantor agrees to ensure
that for six years after Completion no Vendor is wound
up (whether or not voluntarily) without the prior
consent of the Purchaser. That consent may not be
unreasonably withheld if each of the shareholders of the
Vendor consent to covenants with the Purchaser before
the commencement of the winding up, in a form reasonably
required by the Purchaser, to discharge all outstanding
obligations of that Vendor under this agreement or,
where the Vendor is a trustee, each beneficiary to whom
a distribution is or is to be made on winding up
provides an indemnity to the Purchaser in respect of the
outstanding obligations of that Vendor under this
agreement in a form reasonably required by the
Purchaser.
Release of Covenantor
11.9 Despite any other provision of this agreement, the
Covenantor will be released from its obligations and
liabilities under this agreement upon the death or
permanent mental incapacity of Xxxxxx Xxxxx Xxxx. This
release does not affect or limit the Purchaser's rights
against:
(a) the estate of Xxxxxx Xxxxx Xxxx; or
(b) any representative of Xxxxxx Xxxxx Xxxx; or
(c) any person as the recipient of a benefit under
the will of Xxxxxx Xxxxx Xxxx.
12 Adjustment for Tax liability
================================================================================
12.1 In this clause 12 the following words have these
meanings:
Authority means any governmental authority or
instrumentality responsible for Tax, wherever situated.
16
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Claim Amount means:
(a) the amount the Company is required to pay in Tax
to an Authority as a result of a Tax Claim; or
(b) the amount of any credit, rebate or refund of
Tax lost by the Company as a result of a Tax
Claim; or
(c) the amount of Tax that would, if the Company had
taxable income in the year of income to which
the Tax Claim relates, be payable by that
company as a result of the loss of any relief
allowance, deduction or loss carried forward,
calculated at the rate of Tax applicable to
companies in the year in which the Tax Claim is
made.
Deferred Provision means the sum of the provision for
deferred Tax liability in the Last Accounts and any
future Tax benefit which has been offset in the
calculation of that provision.
Tax means taxes, levies, imposts, deductions, charges,
withholdings and duties (excluding stamp duties),
together with any related interest, penalties, fines and
other statutory charges whether accruing before or after
Completion (including any CGT or stamp duty payable on
the transfer of the Westlake Property).
Tax Claim means an assessment notice (including a notice
of adjustment of a loss claimed by a company in a manner
adversely affecting the company), demand or other
document issued or action taken by or on behalf of an
Authority, whether before or after the date of this
agreement, as a result of which the Company is liable to
make a payment for Tax or is deprived of any credit,
rebate, refund, relief, allowance, deduction, or loss
carried forward.
Tax Provision means, at any time, the sum of:
(a) the provision for current Tax in the Last
Accounts;
(b) the Deferred Provision; and
(c) all amounts already paid or agreed to be paid by
the Vendors and Covenantor under this clause 12
at that time, less all Tax paid or payable in
respect of those payments.
12.2 Each of the Vendors and Covenantor agree that if at any
time the Company receives or suffers a Tax Claim that
relates to an act or omission of, or occurrence
affecting, that company before the close of business on
the Completion Date, then the Vendors and Covenantor
(collectively) must pay to the Purchaser the amount by
which the sum of:
(a) the Claim Amount for that Tax Claim; and
(b) all other Claim Amounts for Tax Claims that
relate to an act or omission of, or occurrence
affecting the Company before the close of
business on the Completion Date, other than Tax
Claims referred to in clause 12.6.
17
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exceeds the Tax Provision.
12.3 Each of the Vendors and Covenantor agrees that if at any
time it becomes apparent that the Deferred Provision is
understated, calculating the proper Deferred Provision:
(a) in accordance with the requirements of the
Corporations Law and other applicable laws at
the time of preparation of the Last Accounts;
(b) in accordance with the Accounting Standards at
the time of preparation of the Last Accounts;
and
(c) on a consistent basis with the Last Accounts,
then the Vendors and Covenantor (collectively) must pay
to the Purchaser the amount of the understatement.
For the purpose of this clause an overstatement of the
future Tax benefit in the Last Accounts is taken to be
an understatement of the Deferred Provision.
For the purpose of this clause the Deferred Provision in
the Last Accounts, but not the proper Deferred
Provision, is to be reduced by the Claim Amount of a Tax
Claim which would, but for the inclusion of the Deferred
Provision in the Tax Provision, have resulted in a
payment under clause 12.2.
12.4 Any payment under clause 12.2 or 12.3 is to be treated
as a pro rata reduction in the purchase price for each
Share.
12.5 The obligations of the Vendors and Covenantor under
clauses 12.2 or 12.3 do not apply in respect of a Tax
Claim:
(a) if the possibility of the Tax Claim for the
Claim Amount arising has been disclosed in
writing to the Purchaser before execution of
this agreement, in sufficient detail to enable
the Purchaser to calculate the Claim Amount of
the Tax Claim;
(b) to the extent that the Tax Claim arises from the
failure by the Purchaser to supply to the
Vendors on a timely basis information which is
reasonably requested by the Vendors in relation
to a Tax Claim;
(c) to the extent that the Tax Claim represents the
disallowance of any deduction for canned forward
losses, and the disallowance results from:
(i) the Company not carrying on the same
business after Completion as it carried
on immediately before Completion: or
(ii) the Company, after Completion, deriving
income from a business of a kind that it
did not carry on or from a transaction
of a kind that it had not entered into
in the course of its business operations
before Completion;
18
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(d) to the extent that the Tax Claim arises from the
failure by the Company after Completion, in a
timely manner, to:
(i) lodge any return, notice, objection or
other document in relation to the Tax
Claim;
(ii) claim all or any portion of any relief,
allowance, deduction, credit, rebate or
right to repayment;
(iii) disclose or correctly describe in any
return, notice, objection or other
document relating to the Tax Claim any
fact, matter or thing to the extent that
it was or might reasonably be expected
to have been within the knowledge of
either the Purchaser or the company; or
(iv) take any other action which the company
is required to take under this clause or
any laws relating to Tax.
(e) to the extent that the Tax Claim relates to any
income, profit or gain earned, accrued or
received by reason of an act or omission of, or
occurrence affecting, the Company in the
ordinary course of its business and which for
Tax purposes is taken to be derived between the
Last Accounts Date and the date of Completion.
12.6 Payments under clause 12.2 or 12.3 must be made to the
Purchaser as follows:
(a) if the Company must make a payment of Tax in
respect of a Tax Claim to which clause 12.2
applies - seven days before the latest date on
which that payment may lawfully be made without
incurring any penalty or additional tax for late
payment;
(b) if the Company is deprived of any credit,
rebate, refund, relief, allowance, deduction,
loss carried forward - seven days before the
latest date on which Tax becomes payable by the
company without incurring any penalty or
additional tax for late payment, being Tax which
would not have been payable were it not for the
Tax Claim; and
(c) if an amount is payable under clause 12.3 -
seven days after the Purchaser advises the
Vendors of the understatement.
12.7 The Vendors and Covenantor (collectively) must pay
interest to the Purchaser on any moneys due under this
clause 12 but unpaid, from the date payment is due until
paid in full, at a rate equal to 2 per cent. per annum
above the rate quoted for that daily balance by the
Commonwealth Bank of Australia on unsecured overdraft
accommodation in excess of $100,000.
12.8 If for any reason an amount received by the Purchaser
under clause 12.2 or 12.3 is treated as assessable
income of the Purchaser under any law relating to Tax
the Vendors and Covenantor (collectively) agree to pay
to the Purchaser an increased amount so that, after
deducting from
19
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that amount all Tax paid or payable in respect of the
receipt, the balance remaining is equal to the amount
due under the relevant clause.
12.9 If the Purchaser or the Company becomes aware of a Tax
Claim the Purchaser must give written notice of it to
the Vendors within a reasonable time of becoming so
aware.
The Purchaser must ensure the Vendors and their
professional advisers have reasonable access to the
personnel of the Purchaser and the Company and to any
relevant premises, assets and Records within the
custody, power, possession or control of those companies
to enable the Vendors and their professional advisers to
examine the Tax Claim and Records and to take copies or
photographs of them, at the expense of the Vendors,
provided the Vendors and their professional advisers
give to the Purchaser or the Company such undertakings
as to confidentiality as the Purchaser may reasonably
require.
The Purchaser must ensure that the Company takes any
proper and reasonable action that the Vendors
(collectively) request to avoid, resist, compromise or
defend a demand or notice issued by an Authority which
gives rise to the Tax Claim, provided the Vendors
indemnify the Purchaser and the Company to the
reasonable satisfaction of the Purchaser against any
liability or loss which may be suffered or costs,
damages or expenses which may be incurred as a result of
compliance with their request.
The Vendors may only request an action under this clause
12.9 if they provide the Purchaser with an opinion from
a partner specialising in Tax of a major law firm or
accounting firm in the city where the action is taken by
the Authority which gives rise to the Tax Claim that
there is a real prospect that the requested action will
result in the demand or notice issued by the Authority
being avoided, resisted, compromised or defended.
The action that the Vendors may request be taken by the
Purchaser or the Company in respect of a Tax Claim
includes the making of appeals and objections, provided
that all other avenues of review have been exhausted.
Any action required under this clause 12.9 must be taken
in a timely manner.
12.10 If, following the making of a payment under clause 12.2
for a Tax Claim, all or part of the Claim Amount is
refunded either in cash or by credit to the Company
(including, but not limited to, any amount or credit
received following a successful objection or appeal),
the Purchaser must immediately pay to the Vendors the
lesser of the refund and the amount of the payment paid
under clause 12.2. Any payment under clause 12.10 is to
be treated as a pro rata increase in the purchase price
for each Share.
12.11 If the Vendors and the Purchaser cannot agree on any
amount to be paid under this clause 12 within 21 days of
a dispute arising, then either the Vendors or the
Purchaser may refer the disagreement to an expert with
the request that the expert make a decision on the
disagreement as soon
20
as practicable after receiving any submissions from the
Vendors and the Purchaser. The expert is to be a person
with over ten years experience in Tax agreed by the
Vendors and the Purchaser, or if they do not agree on
the person to be appointed within seven days of one
party requesting appointment, a person with the same
expertise appointed by the President of the Australian
Institute of Chartered Accountants at the request of
either the Vendors or the Purchaser. The decision of the
expert is to be conclusive and binding on the parties in
the absence of manifest error. The Vendors and the
Purchaser agree to each pay one half of the expert's
costs and expenses in connection with the reference. The
expert is appointed as an expert and not as an
arbitrator. The procedures for determination are to be
decided by the expert in its absolute discretion.
12.12 The operation of this clause 12 is subject to clause
5.5, except in relation to the Westlake Property.
13 Default by Vendors
================================================================================
If the Vendors or any of them do not Complete, other
than as a result of default by the Purchaser, the
Purchaser may give the Vendors notice requiring them to
Complete within 7 days of receipt of the notice. If the
Vendors do not Complete within that period, the
Purchaser may elect to proceed for specific performance
or terminate this agreement. In either case the
Purchaser may seek damages for the default If this
agreement is so terminated then clause 4.3 will apply
with the necessary changes. This termination does not
affect any other rights the Purchaser has against the
Vendors at law or in equity.
14 Restraint
================================================================================
14.1 Each of the Vendors and the Covenantor undertakes to the
Purchaser that after the Completion Date, it will not:
(a) be concerned or interested in any other business
or undertaking of a similar nature to that
carried out by the Company (including as a
consultant); or
(b) be a director or shareholder of any corporation
or organisation which is competitive with the
Company; or
(c) acquire more than 2% in any publicly listed
company which [ILLEGIBLE] on a business which is
the same or of a similar nature to the Company's
business.
14.2 Each of the Vendors and the Covenantor must not accept
any payment or other benefit as an inducement or reward
for any act or forbearance or in connection with the
business of the Company after the Completion Date.
14.3 Nothing in clause 14.1 will prevent each of the Vendors
and the Covenantor from holding or being otherwise
interested in any shares or other securities (directly
or through nominees) in companies where those securities
are, for the time being, quoted on any recognised stock
exchange whether in Australia or overseas.
21
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14.4 Each of the Vendors and the Covenantor undertakes to the
Company that it will not:
(a) for the period specified in clause 14.4(a)(ii)
and in the area specified in clause
14.4(a)(iii), either directly or indirectly in
any capacity (including as principal, agent,
partner, employee, shareholder, unitholder,
director, trustee, beneficiary, manager,
consultant, adviser or financier) engage or be
involved in:
(i) (A) the business of being a serials
subscription agents to libraries,
government departments, businesses and
other readers of journals, magazines and
newspapers from Australia and overseas;
and/or
(B) any business or activity which is
the same as or substantially similar to
the Company's business or any material
part of it;
(ii) (A) for a period of 4 years from the
Completion Date;
(B) for a period of 3 years from the
Completion Date;
(C) for a period of 2 years from the
Completion Date;
(D) for a period of 1 year from the
Completion Date;
(E) for a period of 6 months from the
Completion Date;
(iii) (A) in the whole of world;
(B) in any country in which the
Purchaser carries on business;
(C) in Australia and New Zealand;
(D) in Australia;
(E) in Queensland.
(b) for a period of 4 years from the Completion
Date, entice away or endeavour to entice away
from the Company's business, any employees of
the Company or any director, agent,
representative, associate or advisor of or to
the Company in connection with the Company's
business; or
(c) for a period of 4 years from the Completion
Date, solicit the custom or business of anyone
who was a customer of the Company at any time
during the 2 years prior to the Completion Date.
22
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14.5 Each of the Vendors and the Covenantor undertakes to the
Company that it will not, at any time after Completion,
either directly or indirectly in any capacity (including
as principal, agent, partner, shareholder, unitholder,
trustee, beneficiary, manager, consultant, advisor or
financier):
(a) use or disclose any confidential information
pertaining to the Company to anyone other than
the Company and the Purchaser, except as
required by law; or
(b) use a logo, symbol, trade xxxx or business name
substantially identical or deceptively similar
to those of the Company.
14.6 Clause 14.4(a) has effect as if it were the number of
separate clauses which results from combining the
commencement of clause 14.4(a) with each paragraph of
clause 14.4(a)(i) and combining each such combination
with each paragraph of clause 14.4(a)(ii) and combining
each such combination with each paragraph of clause
14.4(a)(iii), each such resulting clause being severable
from each other resulting clause, and if any of those
separate resulting clauses is invalid or unenforceable
for any reason, that invalidity or unenforceability does
not prejudice or in any way affect the validity or
enforceability of any other resulting clause. If the
combination of clauses, when taken together, is judged
to go beyond what is reasonable in the circumstances and
necessary to protect the goodwill of the Company, but
would be judged reasonable and necessary if part were
deleted, then the clauses are to be construed as if that
part were deleted.
14.7 Each of the Vendors, the Covenantor and the Purchaser
agree that, in the circumstances (including the
acquisition of certain the shares in the Company by the
Purchaser), the prohibitions and restrictions in this
clause 14 are reasonable and necessary to protect the
goodwill of the Business.
14.8 This clause 14 does not limit or affect any other
agreement between the Vendors (or any of them) and the
Purchaser (including the Executive Service Agreement
with Xxxxxx Xxxxx Xxxx dated on or about the date of
this agreement).
15 New Lease
================================================================================
Agreement to lease
15.1 The Vendor agrees to:
(a) a surrender of the Level 2 Lease; and
(b) grant the New Lease to the Company.
from the Completion Date.
Initial rent
15.2 If the rent for the first year of the initial term of
the New Lease has not been agreed by Completion, the
rent is to be:
(a) the amount agreed by the parties; or
23
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(b) if the parties have not reached agreement within
one month after the Completion Date, then the
amount determined in accordance with the
procedure for market review specified in
Schedule 2 (parts D to G) of the New Lease,
reduced by 10%.
15.3 Until determination of the rent under clause 15.2, the
Purchaser must pay rent under the New Lease at the rate
of $185.00 per square metre per annum and the parties
must make any adjustment required so that the rent paid
by the Purchaser is equal to the rent payable in
accordance with clause 15.2. That adjustment is to be
made with the next rent payment by the Purchaser (in
which case, the Purchaser may offset any amount due to
it under this clause against the rent payable under the
New Lease).
16 Costs and stamp duty
================================================================================
16.1 The Vendors and the Purchaser agree to bear their own
legal and other costs and expenses in connection with,
the preparation, execution and completion of this
agreement and of other related documentation, except for
stamp duty.
16.2 The Purchaser agrees to bear all stamp duty payable or
assessed in connection with this agreement and the
transfer of the Shares to the Purchaser.
17 Power of attorney
================================================================================
17.1 Each Vendor appoints the Purchaser to be its attorney to
exercise the powers set out in this clause 17 from the
Completion Date until the Shares are registered in the
name of the Purchaser.
17.2 The Purchaser may do in the name of each Vendor and on
its behalf everything necessary or expedient, in the
Purchaser's sole discretion, to:
(a) transfer the Shares;
(b) exercise any rights, including rights to appoint
a proxy or representative and voting rights,
attaching to the Shares;
(c) receive any dividend or other entitlement paid
or credited to the Vendors in respect of the
Shares; and
(d) do any other act or thing in respect of the
Shares or the Company.
17.3 Each Vendor declares that all acts and things done by
the Purchaser in exercising powers under this power of
attorney will be as good and valid as if they had been
done by the Vendor and agrees to ratify and confirm
whatever the Purchaser does in exercising powers under
this power of attorney.
17.4 Each Vendor declares that this power of attorney of the
Purchaser is given for valuable consideration and is
irrevocable from the date of this
24
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power of attorney until the Shares are registered in the
name of the Purchaser.
17.5 The Purchaser is expressly authorised to do any act as a
result of which a benefit is conferred on it.
18 Notices
================================================================================
18.1 A notice, approval, consent or other communication in
connection with this agreement:
(a) must be in writing;
(b) must be marked for the attention of the company
secretary or, in the case of individuals, that
individual; and
(c) must be left at the address of the addressee, or
sent by prepaid ordinary post (airmail if posted
to or from a place outside Australia) to the
address of the addressee or sent by facsimile to
the facsimile number of the addressee which is
specified in this clause or if the addressee
notifies another address or facsimile number
then to that address or facsimile number.
The address, and facsimile number of each party
is:
Vendors
Address: 0 Xxxxxx Xxxxx, Xx Xxxxxxx, Xxx
Facsimile: N/A
Purchaser
Address: 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, XXX
Facsimile: 000 000 0000
Covenantor
Address: 0 Xxxxxx Xxxxx, Xx Xxxxxxx, Xxx
Facsimile: N/A
18.2 A notice, approval, consent or other communication takes
effect from the time it is received unless a later time
is specified in it.
18.3 A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting; and
(b) in the case of facsimile, on production of a
transmission report by the machine from which
the facsimile was sent which indicates that the
facsimile was sent in its entirety to the
facsimile number of the recipient.
25
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19 Assignment
================================================================================
19.1 Subject to clause 19.2, a party may not assign its
rights under this agreement without the consent of the
other party.
19.2 The Purchaser has the right to mortgage or charge its
interest under this agreement without the consent of the
other party.
20 Miscellaneous
================================================================================
Exercise of rights
20.1 A party may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of
a right, power or remedy by a party does not prevent a
further exercise of that or of any other right, power or
remedy. Failure by a party to exercise or delay in
exercising a right, power or remedy does not prevent its
exercise.
Waiver and variation
20.2 A provision of or a right created under this agreement
may not be:
(a) waived except in writing signed by the party
granting the waiver; or
(b) varied except in writing signed by the parties.
Approvals and consent
20.3 A party may give conditionally or unconditionally or
withhold its approval or consent in its absolute
discretion unless this agreement expressly provides
otherwise.
Remedies cumulative
20.4 The rights, powers and remedies provided in this
agreement are cumulative with and not exclusive of the
rights, powers or remedies provided by law independently
of this agreement.
No merger
20.5 The Warranties in this agreement do not merge on
Completion.
Survival of indemnities
20.6 Each indemnity in this agreement is a continuing
obligation, separate and independent from the other
obligations of the parties and survives termination of
this agreement.
Enforcement of indemnities
20.7 It is not necessary for a party to incur expense or make
payment before enforcing a right of indemnity conferred
by this agreement.
Further assurances
20.8 Each party agrees, at its own expense, on the request of
any other party, to do everything reasonably necessary
to give effect to this agreement and the transactions
contemplated by it (including the execution of
documents) and to use all reasonable endeavours to cause
relevant third parties to do likewise.
26
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Publicity
20.9 A party may not make press or other announcements or
releases relating to this agreement and the transactions
the subject of this agreement without the approval of
the other parties to the form and manner of the
announcement or release unless that announcement or
release is required to be made by law or by a stock
exchange.
Time of the essence
20.10 Time is of the essence of this agreement in respect of
any date or period determined under this agreement.
Entire agreement
20.11 This agreement constitutes the entire agreement of the
parties about its subject matter and any previous
agreements, understandings and negotiations on that
subject matter cease to have any effect.
Execution by facsimile
20.12 The Vendors acknowledge that the Purchaser may make or
accept this offer by facsimile transmission.
21 Governing law, jurisdiction and service of process
================================================================================
21.1 This agreement and the transactions contemplated by this
agreement are governed by the law in force in Queensland.
21.2 Each party irrevocably and unconditionally submits to the
exclusive jurisdiction of the courts of Queensland and courts of
appeal from them for determining any dispute concerning this
agreement or the transactions contemplated by this agreement.
Each party waives any right it has to object to an action being
brought in those courts, to claim that the action has been
brought in an inconvenient forum, or to claim that those courts
do not have jurisdiction.
21.3 Without preventing any other mode of service, any document in an
action (including, but not limited to, any writ of summons or
other originating process or any third or other party notice)
may be served on any party by being delivered to or left for
that party at its address for service of notices under clause
18.
22 Redundancy payments for employees
================================================================================
The Purchaser agrees that it will cause the Company as a minimum
entitlement to pay to each employee of the Company at the
completion or termination of their employment (otherwise than
for death or misconduct), in addition to their lawful
entitlements to accrued recreation leave, sick leave, and long
service leave, severance pay of an amount equal to the greater
of:
(a) one week's salary for each complete year of service with
the Company; and
(b) the amount of severance pay and pay in lieu of notice to
which they would be entitled under the Industrial
Relations Xxx 0000
27
--------------------------------------------------------------------------------
(Qld) and the Termination Change and Redundancy Policy
(1987) 30 QGIG 1119.
EXECUTED as an agreement
28
--------------------------------------------------------------------------------
Appendix Warranties and Representations
================================================================================
Vendors' qualifications
================================================================================
1 The Vendors are the registered holders and beneficial
owners of the Shares as set out in Schedule 1.
2 There are no mortgages, charges, pledges, liens,
encumbrances or other security interests over or
affecting the Shares.
3 Each of the Vendors has the power to enter into and
perform this agreement and has obtained all necessary
consents to enable it to do so.
4 The entry into and performance of this agreement by the
Vendors does not constitute a breach of any obligation
(including any statutory, contractual or fiduciary
obligation), or default under any agreement or
undertaking, by which any of the Vendors is bound.
5 No meeting has been convened or resolution proposed, or
petition presented, and no order has been made, for the
winding-up of any corporate Vendor. No petition has been
presented and no order has been made for the bankruptcy
of any personal Vendor. No voluntary arrangement has
been proposed or reached with any creditors of any
Vendor. Each Vendor is able to pay its debts as and when
they fall due.
The Company
================================================================================
6 The Company:
(a) is accurately described in Recitals A and B;
(b) has full corporate power to own its properties,
assets and business and to carry on its business
as now conducted; and
(c) has done everything necessary to do business
lawfully in all jurisdictions in which its
business is carried on.
7 No meeting has been convened or resolution proposed, or
petition presented, and no order has been made, for the
winding-up of the Company. No distress, execution or
other similar order or process has been levied on any of
the property or assets of the Company. No voluntary
arrangement has been proposed or reached with any
creditors of the Company. No receiver, receiver and
manager, provisional liquidator, liquidator or other
officer of the court has been appointed in relation to
the Company. The Company is able to pay its debts as and
when they fall due.
7A There is no person holding the office of Permanent
Managing Director.
The Shares
================================================================================
8 The Shares comprise the whole of the issued ordinary
share capital of the Company, and are fully paid.
29
--------------------------------------------------------------------------------
9 There are no commitments in place under which the
Company is obliged at any time to issue any shares or
other securities of the company.
10 There is no restriction on the sale or transfer of the
Shares to the Purchaser except for the consent of the
directors of the Company to the registration of the
transfers of the Shares.
Financial statements
================================================================================
11 The forecasts and projections relating to the Company
given to the Purchaser or its professional advisers by
or on behalf of any Vendor (excluding those prepared by
Xxx Xxxx and included with the Last Accounts) have been
prepared with all due care and prudence and on a
reasonable basis. There are no facts or circumstances
known to any Vendor or Covenantor or their professional
advisers, or which ought to be known to any of them on
reasonable enquiry, which would lead a prudent business
manager to make any material revision of those forecasts
or projections.
12 The Last Accounts disclose a true and fair view of the
state of the affairs, financial position and assets and
liabilities of the Company as at the Last Balance Date,
and the income, expenses and results of operations of
the Company for the financial period ending on that
date.
13 The Last Accounts were prepared:
(a) in accordance with the requirements of the
applicable Companies Code or Corporations Law
and any other applicable laws;
(b) in accordance with the Accounting Standards;
(c) in the manner described in the notes to them;
(d) on a consistent basis with the accounts for the
prior financial year;
(e) without revaluing upwards any assets during the
period which is the subject of the Last
Accounts; and
(f) recording each asset at its reasonably estimated
current market value.
14 The Company is not directly or indirectly obliged in any
way to guarantee, assume or provide funds to satisfy any
obligation of any person.
15 No letter of comfort has been given by the Company.
Business
================================================================================
16 The Company is the legal and beneficial owner of all its
property and assets. There are no mortgages, pledges,
liens, encumbrances, charges
30
--------------------------------------------------------------------------------
or other security interests over or affecting any
property or assets except as set out in Schedule 2.
17 The Company holds all statutory licences, consents and
authorisations necessary for the carrying on of its
business and the use of the Business Premises. So far as
the Company and each of the Vendors and Covenantor are
aware, there is no fact or matter that might prejudice
the continuance or renewal of those licences, consents
or authorisations.
18 The business of the Company is conducted in accordance
with all applicable laws, does not contravene any laws
and no allegation of any contravention of any applicable
laws is known to the Company or any of the Vendors or
Covenantor.
19 The assets of the Company are sufficient to enable the
effective conduct of the business of the Company after
Completion as it is carried on at the date of this
agreement, and has been carried on since the Last
Balance Date.
20 There has not been any breach of or default by the
Company of any term or provision of:
(a) its memorandum and articles of association;
(b) any instrument to which it is a party or by
which it is bound; or
(c) any judgment, order or injunction of any court,
commission, board or other administrative or
governmental authority,
and there has not occurred any event which, with the
passage of time or giving of notice, would constitute a
breach or default of that kind.
21 The transfer of the Shares in accordance with this
agreement does not and will not constitute a breach of
any obligation (including any statutory, contractual or
fiduciary obligation) or default under any agreement or
undertaking by which the Company is bound.
22 As far as the Company and each of the Vendors and
Covenantor are aware, there is no existing customer or
supplier of the Company who will or is likely to:
(a) cease trading with the Company; or
(b) materially reduce its trading with the Company,
as a result of the acquisition of the Shares by the
Purchaser.
23 No person has given or entered into any guarantee,
indemnity or letter of comfort in respect of the
Company.
24 There are no powers of attorney given by the Company in
force except the power of attorney in clause 17.
25 The names and locations of all banks in which the
Company has an account and the names of all persons
authorised to sign on the accounts are listed in
Schedule 3.
31
--------------------------------------------------------------------------------
26 Except as disclosed in Schedule 4 no Vendor or relative
of a Vendor or body corporate associated (as that term
is defined in the Corporations Law) with a Vendor is a
party to any contract or arrangement with the Company.
27 At no time during the last three years has the Company
had a direct or indirect interest in any contract or
arrangement containing terms which were not of an
entirely arm's length nature, nor have the profits or
financial position of the Company during that period
been effected by any contract or arrangement with terms
of that nature.
28 The Company:
(a) does not hold any shares in the capital of any
company;
(b) is not a member of any partnership or other
unincorporated association;
(c) is not a trustee of any trust estate or fund;
and
(d) does not have a permanent establishment (as that
expression is defined in any relevant double
taxation agreement) outside Australia.
Business Premises
================================================================================
29 The Business Premises are the only places of business of
the Company and are the only business premises owned,
leased or occupied by the Company.
30 The Company has exclusive occupation of the Business
Premises free from all encumbrances or third party
rights.
31 The Company has properly performed and observed all
material covenants affecting the Business Premises.
32 There are no restrictions, stipulations or outgoings
affecting the Business Premises which are of an onerous
or unusual nature or conflict with the present use. The
use of the Business Premises by the Company does not
constitute a breach of the Property Lease, the Business
Premises Lease or any applicable law.
33 The Property Lease is the only lease of real property to
the Company. The Company has made all payments required
by and has otherwise complied with the terms of the
Property Lease.
34 No development, alterations or works have been carried
out in relation to the Business Premises which would
require any permission or consent under any statute or
regulation which has not been obtained and all
conditions attaching to any such permission or consent
have been fully complied with.
35 As far as the Company and each of the Vendors and
Covenantor are aware, there are no proposals by any
competent authority or other person which would
adversely affect the Business Premises.
32
--------------------------------------------------------------------------------
36 Each of the buildings and other erections on the
Business Premises:
(a) is in such condition and repair as to be
substantially fit for the purpose for which it
is presently used; and
(b) is approved and otherwise complies with
applicable laws and industrial health and safety
regulations.
37 The connections to power and waste disposal services
existing in the buildings and other erections on the
Business Premises are approved and otherwise comply with
applicable laws. None of the Company or any of the
Vendors or Covenantor are aware of any imminent or
likely interruption of those services.
38 There are no current disputes relating to the Business
Premises or its use.
Plant and Equipment
================================================================================
39 Schedule 7 is a complete list of all items of Plant and
Equipment owned by the Company with a written down value
in excess of [ ] as at the List Balance Date. Schedule 9
accurately describes all of the Equipment Leases.
40 The rate of depreciation applied in the Last Accounts
for each item of Plant and Equipment has been applied
over previous accounting periods of the company and is
adequate to write down its value to nil realisable value
it the end of its useful working life.
41 Each item of Plant and Equipment and Leased Plant and
Equipment:
(a) is in good repair taking into account normal
wear and tear;
(b) is in satisfactory working condition and capable
of doing the work for which it is designed, and
(c) has been maintained in a manner that does not
prejudice any rights under any maintenance
contract in connection with any of that plant
and equipment.
42 There is no claim outstanding against any supplier of
the Plant and Equipment or Leased Plant and Equipment or
of maintenance services format plant and equipment in
connection with any defect in that plant and equipment.
43 Each item of Plant and Equipment and Leased Plant and
Equipment is in the physical possession of the Company.
44 Each item of Plant and Equipment and Leased Plant and
Equipment is erected or positioned in accordance with
all applicable laws and is operated by the Company
without contravening any laws or industrial health and
safety regulations.
45 The Company has made all payments required by and has
otherwise complied with the terms of each of the
Equipment Leases.
33
--------------------------------------------------------------------------------
Inventory
================================================================================
Warranties 46 to 51 have been intentionally deleted.
Intellectual Property Rights
================================================================================
52 Schedule 9 is a complete and accurate list of:
(a) all registered and unregistered business names
and trade marks;
(b) all registered patents and designs; and
(c) all applications for registration of patents and
designs,
owned or used at any time by the Company in connection
with its business and contains full details of the
Intellectual Property Licences.
53 The Company owns all right, title and interest
throughout the world in and to the Intellectual Property
Rights. The Company has not licensed any of the
Intellectual Property Rights and has not assigned or in
any way disposed of any right, title or interest in the
Intellectual Property Rights.
54 The Company has not disclosed any of the Confidential
Information except properly in the ordinary course of
its business and on a confidential basis.
55 The Intellectual Property Rights are valid and
enforceable throughout the world. The Company has taken
all necessary steps to obtain and maintain appropriate
registrations for the Intellectual Property Rights and
to protect and defend the Intellectual Property Rights.
56 Neither the carrying on of its business by the Company
nor the use of the Intellectual Property Rights:
(a) infringes, or is alleged to infringe, the
intellectual property rights (including business
names, trade marks, patents, designs, copyright
and rights to confidential information) of any
third party; or
(b) is, or is alleged to be, in breach of any
obligation of confidence owed to any third
party.
57 As far as the Company and each of the Vendors and
Covenantor are aware, there has not been:
(a) any infringement of any of the Intellectual
Property Rights;
(b) any misuse or unauthorised disclosure of the
Confidential Information; or
(c) any other act which may affect the validity or
enforceability of the Intellectual Property
Rights.
34
--------------------------------------------------------------------------------
58 None of the Company or any of the Vendors or Covenantor
are aware of any use by any other person of any of the
business names or the trade marks owned or used by the
Company.
59 Each of the Intellectual Property Licences is valid,
binding and enforceable against the parties to it. The
Company has complied at all times with the terms of the
Intellectual Property Licences and no licensor has any
right to terminate an Intellectual Property Licence.
Contracts
================================================================================
59 Full details of all material contracts entered into by
the Company have been fully disclosed to the Purchaser
in writing. Schedule 10 is a complete list of all
banking facilities available to the Company.
60 The Company has complied at all times with its
obligations under all material contracts entered into by
it.
61 Each of the contracts entered into by the Company is
valid, binding and enforceable against the parties to it
and there is no party in breach of, or in default under,
any such contract.
62 None of the contracts entered into by the Company
contain any onerous, unusual or other provision material
for disclosure to a prudent intending purchaser of the
Shares.
63 None of the contracts entered into by the Company is
known to the Company or any of the Vendors or Covenantor
to be likely to result in a loss for that company.
64 The Company has not made any offers, tenders or
quotations which are still outstanding and capable of
giving rise to a contract by the unilateral act of a
third party, other than in the ordinary course of
business and on customary terms.
65 All debts of the Company will be good and collectable in
the ordinary course of business and in any event not
later than three months after the Completion Date.
66 The total amount borrowed by the Company from its
bankers does not exceed its overdraft accommodation and
the total amount borrowed or raised by the Company from
any source does not exceed any limitation in its
articles of association or in any deed or agreement
executed by it.
Insurance
================================================================================
67 Schedule 11 comprises a complete list of all contracts
of insurance and indemnity in force in respect of the
business and the property and assets.
68 Each of the contracts of insurance is in force and there
is no fact or circumstance known to the Company or any
of the Vendors or Covenantor which would lead to any of
them being prejudiced. None of the contracts of
insurance will be terminated or cease to have effect as
a consequence of the change in ownership of the Shares.
35
--------------------------------------------------------------------------------
69 All of the property and assets of the Company of an
insurable nature are insured in amounts representing
their full replacement or reinstatement value against
fire and other risks normally insured against. All
risks, whether in relation to damage to property,
personal injury, product liability or otherwise are
adequately insured for such amounts as would be
maintained in accordance with prudent business practice.
Taxation
================================================================================
70 All tax and duty returns required by law (including, but
not limited to, all laws imposing or relating to income
tax, fringe benefits tax, sales tax, payroll tax, group
tax, land tax, water and municipal rates and stamp and
customs duty) to be lodged or filed by the Company have
been lodged or filed.
71 No tax or duty return referred to in warranty 69
contains a statement that is false or misleading in any
material particular or omits to refer to any matter
which is required to be included or without which the
statement is false or misleading.
72 All records relating to tax or duty returns referred to
in warranty 69 or to the preparation of those returns
required by law to be maintained by the Company have
been duly maintained.
73 All taxes, levies, assessments, contributions, fees,
rates, duties, and other governmental or municipal
charges or impositions (other than those which may be
still paid without penalty or interest) for which the
Company is liable, including any penalty or interest,
have been paid.
74 There is no current dispute between the Company and the
Commissioner of Taxation of the Commonwealth of
Australia or any other federal, state or municipal body
or authority responsible for the collection of tax or
duty.
75 All amounts of income tax required by law to be deducted
by the Company from the salary or wages of employees
have been duly deducted and, where appropriate, duly
paid.
76 No dividend has been paid by the Company:
(a) in respect of which the required franking amount
(as provided for in section 160AQE of the Income
Tax Assessment Act ("Tax Act") has exceeded the
franked amount (as defined in section 160APA of
the Tax Act) of the dividend; or
(b) which has been franked in excess of the required
franking amount,
which would result in that company being liable to pay
franking deficit tax under section 160AQJ of the Tax Act
or additional tax under section 160ARX of the Tax Act.
77 The Company will have sufficient profits available for
distribution to members to permit payment of the
dividend referred to in clause 7.3. Payment of that
dividend in accordance with that clause will not result
in
36
--------------------------------------------------------------------------------
the Company becoming liable to pay franking deficit tax
under section 160AQJ of the Tax Act or additional tax
under section 160ARX of the Tax Act.
78 All documents entered into by the Company have been duly
stamped.
79 All stamp duty payable on any transfer of the Shares
before the Completion Date has been duly paid.
Records
================================================================================
80 The Records:
(a) are complete, true and accurate in all material
respects;
(b) give a true and fair view of the trading
transactions, financial and contractual position
of the Company and of its assets and
liabilities;
(c) as far as is relevant, have been prepared in
accordance with the applicable Companies Code or
Corporations Law and the Accounting Standards;
and
(d) are in the possession of the Company in their
original form.
81 The Company has filed all annual returns and other forms
as and where required to be filed or registered under
the Companies Code or Corporations Law (as applicable)
and the Company is not liable to be struck off the
register of companies.
Litigation
================================================================================
82 The Company is not involved in any litigation or
arbitration proceedings and there are no facts likely to
give rise to any such proceedings.
83 No claim has been made against the Company in connection
with any defective product or services supplied by it in
the course of carrying on its business and the Company
has maintained adequate insurance for at least the last
6 years against any such claim. The Company has not
breached the provisions of the Trade Practices Act or
any equivalent state or territory enactments or the
requirements of consumer product safety standard or
consumer product information standard prescribed by law.
84 None of the operations of the Company are subject to any
unsatisfied judgment or any order, award or decision
handed down in any litigation or arbitration
proceedings.
Environment
================================================================================
85 There is no Contaminant present in, on, under or above
the Business Premises and there is nothing which may
become or give rise to such a Contaminant in the future.
37
--------------------------------------------------------------------------------
86 The Business Premises are safe and without risk to
health of persons.
87 The Company in the conduct of its business or the
occupation and use of the Business Premises, has not
harmed the Environment in a manner not permitted by any
Environmental Law.
88 All authorisations and approvals required under any
Environmental Law relating to the business of the
Company are in full force and effect and will not be
terminated or cease to have effect as a consequence of
the change in ownership of the Shares.
89 No authorisations or approvals under any Environmental
Law relating to the business of the Company are subject
to a right of appeal by any person.
90 The Company has at all times complied with all the terms
of any authorisations and approvals under any
Environmental Law relating to the business of the
Company.
91 There is no proposal to revoke, suspend, modify or not
renew any authorisation or approval under any
Environmental Law relating to the business of the
Company.
92 There is no actual or contingent obligation to pay money
or carry out any work in relation to the Business
Premises or any other assets of the Company to comply
with an Environmental Law.
93 The Company is not subject to any liability under any
Environmental Law or under the common law arising from
the carrying on of its business at any time.
94 The carrying on of its business by the Company has not
been negligent and has not resulted in or caused any
public or private nuisance or contravention of the rule
known as the Rule in Xxxxxxx v Xxxxxxxx (1868) LR3 (HL)
330.
Employees
================================================================================
95 All contracts of service or for services and letters of
appointment in respect of any employees of, or
consultants to, the Company have been fully disclosed to
the Purchaser in writing. No loans or other advances
have been made to any directors or employees of the
Company. Each of the contracts entered into with
employees or consultants are enforceable against the
parties to it and there is no party in breach of, or in
default under, any such contract.
96 The Company has made all payments in respect of
occupational superannuation required under any contract
or award in respect of each of its employees.
97 The Company is not involved in any industrial or trade
dispute or any dispute regarding any claim with any of
its employees or with any trade union and, so far as the
Company and each of the Vendors and Covenantor are
aware, there are no facts or circumstances which are
likely to result in such a dispute.
38
--------------------------------------------------------------------------------
98 Since 1997 the Company has not considered dismissing any
existing Employees.
99 Since the Last Accounts Date there has not been any
material change in the remuneration or emoluments or
benefits of any executives who are employees.
Superannuation
================================================================================
Warranties 100 to 106 have been intentionally deleted.
107 Full disclosure has been made to the Purchaser of all
material facts relating to contributions and benefit
arrangements in connection with the Fund and there are
no superannuation or other benefit schemes, other than
the Fund, to which the Company is contributing or has
entered into a commitment which could involve future
contributions, or under which any of the employees of
that company receives or is entitled to receive or
reasonably expects to receive any benefits.
108 Intentionally deleted.
109 All taxes, levies, assessments, contributions, fees,
rates, duties and other governmental or municipal
charges or impositions (other than those which may still
be paid without penalty or interest) for which the
Vendors are liable, including any penalty or interest,
have been paid.
110 Full and proper records and accounts (so far as those
are required by law) of the superannuation arrangements
of the Company have been kept, are up to date, and
disclose a true and fair view.
111 Intentionally deleted.
112 Intentionally deleted.
113 The transfer of the Shares will not cause any increase
in the obligations of the Company to make contributions
to the Fund.
114 None of the Vendors have misrepresented to any person
the benefits which are or may be available in respect of
the Fund.
Changes since the Last Balance Date
================================================================================
115 Since the Last Balance Date:
(a) the business of the Company has been carried on
in the ordinary and usual course and no
contracts or commitments differing from those
ordinarily necessitated by the nature of that
business have been entered into or incurred;
(b) there has been no change in the assets, the
liabilities or the financial position or profits
of the Company from that set out in the Last
Accounts except changes in the ordinary course
of business, none of which individually or in
the aggregate is materially adverse to the
company; and
39
--------------------------------------------------------------------------------
(c) the business or financial position of the
Company has not been materially and adversely
affected by any matter, either financial or
otherwise and whether covered by insurance or
not.
116 Since the Last Balance Date:
(a) no distributions of cash or specific assets by
way of dividend or otherwise on the share
capital of the Company have been made;
(b) no shares in or debentures of the Company have
been issued or agreed to be issued or put under
option;
(c) no alteration has been made to the rights
attached to any existing shares in the Company;
(d) no alteration has been made to the memorandum or
articles of association of the Company;
(e) no alteration has been made to the capital
structure of the Company;
(f) no additional directors have been appointed to
the Company.
Brokerage
================================================================================
117 No person is entitled to recover from the Company any
fee or commission in connection with the purchase or
sale of the Shares.
Information
================================================================================
118 All information given by the Company or any of the
Vendors or Covenantor or the Vendors' professional
advisers to the Purchaser or to the Purchaser' s
professional advisers in the course of negotiations
leading to this agreement and Completion are true and
accurate in all respects. None of that information is
misleading in any material particular, whether by
omission or otherwise.
119 To the best of the knowledge and belief of the Company
and each of the Vendors and Covenantor, all details
relating to the Company which would be material for
disclosure to a prudent intending purchaser of the
Shares have been disclosed to the Purchaser.
120 So far as the Company and each of the Vendors and
Covenantor are aware, there are no facts or
circumstances which might reasonably be expected
materially and adversely to affect the financial
position, operations, profitability or prospects of the
Company other than facts and circumstances affecting as
a whole the industry in which the business of the
Company is carried on.
Managing Directors
================================================================================
121 Xxxxxxx Xxxx has resigned from her position as Managing
Director or Governing Director, as the case may be.
40
--------------------------------------------------------------------------------
Schedule 1 Vendors and Shareholdings
================================================================================
Column 1 Column 2 Column 3 Column 4
Name and Address of each Vendor Number of Class of Shares Amount paid up
Shares held held on each of the
Shares held
-----------------------------------------------------------------------------------------------------
Ashcliff Pty Ltd (ACN 057 727 198) of 1 A $1.00
Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxx in the State of Queensland.
Ashcliff Pty Ltd (ACN 057 727 198) of 1 B $1.00
Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxx in the State of Queensland.
Ashcliff Pty Ltd (ACN 057 727 198) of 1 C $1.00
Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxx in the State of Queensland.
Ashcliff Pty Ltd (ACN 057 727 198) Of 1 D $1.00
Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxx in the State of Queensland.
Ashcliff Pty Ltd (ACN 057 727 198) of 3,999 Ordinary $1.00
Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxx in the State of Queensland.
Ashcliff Pty Ltd (ACN 057 727 198) of 210,000 Z $1.00
Xxxxx 0, Xxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxxx in the State of Queensland.
Xxxxxx Xxxxx Xxxx of 3 Mozart Place. Mt 1 Ordinary $1.00
Ommaney in the State of Queensland.
41
--------------------------------------------------------------------------------
Schedule 2 Mortgages and other Encumbrances over the
Company
================================================================================
Nil
42
--------------------------------------------------------------------------------
Schedule 3 Bank Accounts and Signatories
================================================================================
BANK ACCOUNTS
Australia
National Australia Bank BSB: 084424 Toowong Branch
A/c No: 00-000-0000 00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx
Xxxxxxxxx
Flexiphone 131013
Fax (07) 0000-0 000
Xxxxxx Xxxxxx
Xxxxxx Trust & Savings Bank A/c No: 3 00-988-3 000 Xxxx Xxxxxx Xxxxxx
(Main Account) Xxxxxxx Xxxxxxxx 00000
XXX
Phone: 0011-1-312461-
2121
Fax: 0011-1-312-845-
2199
A/c No: 77941 Xxxxxxx Xxxx
(Xxxxxx Xxxx Market Plus Associate Vice President
Account) Phone: 0011-1-312461-
2971
Fax: 0011-1-312-293-
4823
A/c No: 77942
(Xxxxxxx Xxxx Market
Plus Account)
United Kingdom
National Westminster Bank A/c No: 00000000 City of Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxx
X0 Xxx 00000,
0xx Xxxxx 0 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Phone: 0011-44-171-390-
1625
Fax: 0011-44-171-390-
0000
Xxxxx Xxxxxxx
Xxxxxxxx Manager
Phone: 0011-44-171-390-
0000
Xxx Xxxxxxx
Xxxx xx Xxx Xxxxxxx A/c No: 0264-00360077- Newmarket Branch
000 000 Xxxxxxxx
Xxxxxxxxx Xxxxxxxx
Xxx Xxxxxxx
Phone: 0000-00-0000-0000
Fax: 0000-00-0000-0000
43
--------------------------------------------------------------------------------
Xxxx Xxxxxx
Business Manager
Canada
Toronto-Dominion Bank A/c No: 0690-0632223 00 Xxxx Xxxxxx X & Xxx
Xxxxxx
Xxxxxxx Xxxxxxx X0X 0X0
Xxxxxx
Xxxxxxxx Xxxxxxx
Phone: 0011-1416-982-
5129
Fax: 0011-1416-944-
5796, or
Papua New Guinea
Bank of South Pacific Ltd A/c No: 36183427 Port Moresby Service Centre
PO Box 173
Port Moresby
Papua New Guinea
X. Xxxxx
Senior Office Supervisor
Phone: 0000-000-000-0000
Fax: 0000-000-000-0000
CHEOUE SIGNATORIES:
Sole Signatories (no restrictions): Xxxxxx Xxxxx Xxxx
Xxxxxxx Xxxx
Sole Signatories (restricted to amounts Xxxxxx Xxxxxxx
of AUD$1,000, NZ$1,000, CAN$l,000,
UK(Pound)500, USD81,000, Kina 1,000)
Joint signatories: Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx Xxx
Xxxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxxxxxx Xxxxxxxx
44
--------------------------------------------------------------------------------
Schedule 4 Contracts with the Vendors
================================================================================
Agreement to lease between Xxxxxx Xxxxx Xxxx and
the Company for Xxxxx 0, 00 Xxxxxxxx Xxxx,
Xxxxxxx in the State of Queensland, more
particularly described as Lot 6 on BUP 10844.
45
--------------------------------------------------------------------------------
Schedule 5 Not used
================================================================================
46
--------------------------------------------------------------------------------
Schedule 6 Not used
================================================================================
47
--------------------------------------------------------------------------------
Schedule 7 List of Plant and Equipment
================================================================================
1xCadenza Woodgrain/Leathertop
1xExecutive Desk (with return)
1xCadenza (cream/brawn)
1x cream Bench with shelves (not fixed)
1xcream/xxxxx Desk (attached draws)
2xPC Workstations
4xMobile Pedestal
1xPedestal (without wheels)
1xDesk with return (fixed draws)
8xWorkstations
1xMobile PC Workstation
3xPedestal (without wheels)
1xWorkstation Desk on coasters
1xDesk with slide
1x2-tier Desk
1xdesk high Work Bench
1xfixed Wall Bench (2 shelves)
3x fixed Wall Shelf
1xfixed Bookshelf (2 part)
1xfixed Bookshelf
1xset Desk Shelves - cream laminate
1xcomer shelves (black) on coasters
1xDesk (cream)
1xCadenza (cream)
1xDesk with return
1xDesk with return (cream/xxxxx)
8xWorkstation (fixed draws)
1xWorkbench /Shelves (raised from floor)
1xGlass Coffee Table
1x2bay set of Shelves (cream laminate)
1x3 bay set of Shelves (cream laminate)
1xDesk (xxxxx/cream) with draws
1xPrinter Table on wheels
1xwood laminate Set of Shelves (single bay)
4xTypist Table
1xbrown laminate Set of Shelves
3xWorkbenches
1xWall Cabinets (with doors)
1x Reception Desk
1xBlue Leather 3-seater Lounge
1xBlacklwhite cabinet (on coasters)
1xConference Table
1xExecutive Desk with Cadenza
1xDesk with return
1xDesk + desk height set of shelves
1xset of laminate shelves (on coasters)
1xWork Table
1xCadenza/bench
1xBook Shelf (3 high)
7xDesks (xxxxx/cream) with returns
6xDesks (cream) with returns
1xDesk (xxxxx/cream) (no return)
48
--------------------------------------------------------------------------------
1xDesk (cream) no return/fixed draws
1xfloor FAN
6xWhiteboards
1xACER Scanner
2x metal Cabinets (with doors)
1xEthanet Hub
3x28K Modems
1xDiscdrive cabinet
1xCISCO IDSN Router
1xCD Discdrive Tape Unit
1xCD and Tape Unit
2xBattery back-up Units
3x56K Modems
1x288K Modem
1xCISCO Ethanet Switchbox +2 Converters
1xStallion Terminal Server
2xSpecialix Terminal Server
1xTECO Airconditiioning Xxxx
0x Xxxxxxxxx Xxxxxxxxxxx Xxx
0xXxxx Clock
1xPanasonic Microwave
1xLamar Bar Refrigerator
1xSunbeam Urn
2xSMC Ethanet HUB
1xPanasonic Airconditioning Unit
1xEmulex Terminal Server
1xD-Link Multiport Repeater
1xHoneywell Temperature Warning Box
1xWall Cabinet with Patch Pan A
1xWhiteboard with coasters
1xfixed U-Shape Workstation
1xKelvinator Refrigerator
2xBindomatic 5000 + racks Heat Binder
1xIBICO Thermotronic 400 + racks Heat Binder
3xcork Peg Boards
2xflat base Trolleys
1xHSM 104.1 Shredder
2xwall fixed Book Shelf
1x"Breeze Master" Floor Fan
1xXerox Facsimile + phone
1xPansonic Facsimile
1xNational Microwave
1xZIP Miniboil Water Heater
1xSink/bench/cabinets (fixed)
1xabove sink Kitchen Cabinet
2xFixed Work bench (kitchen
3xInput-eze
1xBailey Ladder
1x Canon Calculator
1xSharp C51183 Calculator
1x56K Modem
1xFoot Step (on coasters)
Fixed Benches/shelves surround Publisher and Data Services Sections
6xMonitor Arms
49
--------------------------------------------------------------------------------
1xepson Stylus PRO Colour Printer
1xCiTOH 300 Printer
1xLexmark Lazer printer
1xC-iTOH 500 Line Printer
1xGestetner Lazer Printer
1xKyocera F54700 Lazer Printer
1xLexmark Label Printer
1xHewlett Packard Deskjet 500
1xKyocera FS 1550 Lazer Printer
1xCanon ASO Printer
1xCiTOH 1000 Printer
1xGestetner GLX8Ol Lazer Printer
1xKyocera F53 700 Lazer Printer
1xGestemer GLX800 Lazer Printer
1xBrother EM-701 Typewriter
1xBrother CE6O Typewriter
2xIBM Selectric Typewriter
1xIBM 6746 Typewriter
1xXEROX 5018 Photocopier
BCSl50 - 24
DBC7S3 - 8
DBC754 - 1 (consol)
9x typist with arms
6xstacker chairs
28xtypist
1xChair with arms
1xgrey Lounge Chair
2xBar Stools
1xStool
1xFold-up Lounge
6xConference Chairs
4xVisitor Chairs
1xExecutive Chair
14x4-draw filing
.9x2-draw filing
1x3-draw filing
1x Chest of Draws
30 x VDU with keyboard
3 (for repair) VDU with keyboard
2xSamtron Monitor with CPU and Speakers
1xOsborne Monitor with CPU and speakers
1xADI Monitor with CPU and speakers
1xAcer 17" Monitor with CPU and speakers
1xChun Monitor with CPU
1xTatung Monitor
1xEpix Monitor
1xSparc Station 1 complete Server with Monitor, Keyboard, Disc Drives
and CPU
1xPhillips Consol 17" Monitor with keyboard
1xViewsonic Consol 17" Monitor with k/board
2xSparc Station 10 CPU's
1xWyse Monitor & Keyboard
1xTechstar Monitor, CPU and keyboard
1xFalco Monitor with keyboard
1x Winpro Monitor, keyboard, speakers & CPU
50
--------------------------------------------------------------------------------
1xNEC Laptop
1xVelta Monitor/keyboard/speakers & CPU
1xSamtron Monitor/keyboard/speakers & CPU
1xsingle 6high (2bays) Shelving
2xbacktoback 6 high (4bays) Shelving
2x2backtoback, 6 high (16bays) Shelving
1xsingle 6high (3bays) Shelving
2xsingle 6high (2 bays) Shelving
3xsingle backtoback, 6high Shelving
1xsingle bay, 4high Shelving
1xsingle bay, 4high Shelving
1xSingle Bay Lateral filing Shelving
1x2Bay 6high Shelving
3xSingle Bay 6 high Shelving
1xsingle Bay 6 high Shelving
2xsingle 6 high Lateral Files Shelving
1x16 bay Compactus Shelving
2x2bays 6 high Shelving
2xsingle 6 high Shelving
1xbacktoback single 6 high Shelving
2xbacktoback double 6 high Shelving
1x3 shelf single bay Shelving
51
--------------------------------------------------------------------------------
Schedule 8 Particulars of Equipment Leases
================================================================================
Nil
52
--------------------------------------------------------------------------------
Schedule 9 Particulars of Registered and Unregistered
Intellectual Property
================================================================================
Business Names:
ISA Australia
Unregistered Trade Marks:
ISAcomplete
ISAscan
Patents:
Nil
Designs:
Nil
Intellectual Property Licences
Software Licences:
Microsoft NT 50036-415-0157726-1435
50036-415-0157726-51660
Microsoft Windows 95 15096-OEM-0012891-45490
02097-OEM-O018586-70187
36-OEM-0029361-30181
25895-OEM-0004692-84048
33697-OEM-0027813-73470
35295-OEM-0008265-14760
15995-OEM-0001463-62394
13696-OEM-0011903-303134
30998-OEM-0038665-63521
Microsoft Office Professional 52488-415-0131817-15160
53488-415-0122003-61808
53488-415-0445985-93698
53488-415-0445985-35933
53488-415-0131817-97588
53
--------------------------------------------------------------------------------
53488-415-0131817-30181
53488-415-0144784-16120
53488-415-1031817-04307
53488-415-0444772-21961
53488-415-0445985-30314
AcuCobol 4.1 106280
AcuBench 4.1 305779-8077
Intelliterm 32 A000000000224136
A000000000224166
A000000000224132
1700000010040060
1700000010040061
1700000010040059
A000000000224165
1700000010040062
A000000000224164
Telex for windows W1404225
Xxxxx Code Editor 859853129
826298697
876630345
843075913
VCQ Cyberquery 500418001/1
Vet Anti-Virus 9.94 116204
Visual Basic 6 8289131300403862284
Visual Basic 3 00-203-0300-70030697
CSE HTML Validator 10194
Front Page 98 68866-415-0140702-70535
Logisoft Payroll V2.81 PP-WIN-95-001316-7416
National Online CAN 0040 44937
Pagemaker 03W601X11011240271
Acrobat X.XX WAW210P7297015-520
Photoshop LE 5PW300R3413010-520
VB4 (16 bit) 27023242010931728886
Chronilist 97D294
OmniPage 2889B-J00-005660
Visual C++ 000-000-000
54
--------------------------------------------------------------------------------
WordPerfect 7 No Number recorded
Print Shop Delux No Number recorded
55
--------------------------------------------------------------------------------
Schedule 10 Banking Facilities
================================================================================
NZ$10,000.00 overdraft facility with the Bank of New
Zealand.
UK(pound)1O,000.00 overdraft facility with the National
Westminster Bank PLC.
56
--------------------------------------------------------------------------------
Schedule 11 Contracts of Insurance
================================================================================
Public / products liability insurance policy
(Policy No. 5L/1114891) with Xxxxxx General
Insurance Limited for $5,000,000 in respect of 00
Xxxxxxxx Xxxx, Xxxxxxx.
Electronic equipment insurance policy (Policy No.
14ZE 1365436) with Xxxxxx General Insurance
Limited for $175,000 in respect of 00 Xxxxxxxx
Xxxx, Xxxxxxx.
57
--------------------------------------------------------------------------------
Schedule 12 New Lease
================================================================================
58
--------------------------------------------------------------------------------
SIGNED by as XXXXX XXXXXXXXX )
as authorised representative for )
ROWECOM, INC in the presence of )
)
/s/ Xxxxx Xxxxxx )
------------------------------------------- )
Signature of witness )
)
XXXXX XXXXXX )
------------------------------------------- ) /s/ Xxxxx Xxxxxxxxx
Name of witness (block letters) ) --------------------------------------------
) Xxxxx Xxxxxxxxx, Executive Vice
000 Xxxxxx Xx., Xxxxxx, XX ) President and Chief Financial Officer
------------------------------------------- )
Address of witness ) By executing this agreement the signatory
) warrants that the signatory is duly
Finance Professional ) authorised to execute this agreement on
------------------------------------------- ) behalf of ROWECOM, INC
Occupation of witness )
EXECUTED by ASHCLIFF PTY LTD )
ACN 057 727 198 in accordance with )
section 127(1) of the Corporations Law by ) --------------------------------------------
authority of its directors in the presence of: ) Signature of director
)
)
) --------------------------------------------
) Name of director (block letters)
)
)
------------------------------------------- ) --------------------------------------------
Signature of witness ) Signature of director/company secretary*
) *delete whichever is not applicable
)
)
------------------------------------------- ) --------------------------------------------
Name of witness (block letters) ) Name of director/company secretary
) (block letters)
) *delete whichever is not applicable
------------------------------------------- )
SIGNED by XXXXXXX XXXX in the )
presence of: )
)
------------------------------------------- )
Signature of witness )
)
------------------------------------------- )
Name of witness (block letters) )
)
------------------------------------------- )
Address of witness )
)
------------------------------------------- ) --------------------------------------------
Occupation of witness ) Signature of Xxxxxxx Xxxx
59
--------------------------------------------------------------------------------
SIGNED by as XXXXX XXXXXXXXX )
as authorised representative for )
ROWECOM, INC in the presence of )
)
------------------------------------------- )
Signature of witness )
)
------------------------------------------- )
Name of witness (block letters) ) --------------------------------------------
) Xxxxx Xxxxxxxxx, Executive Vice
------------------------------------------- ) President and Chief Financial Officer
Address of witness )
) By executing this agreement the signatory
------------------------------------------- ) warrants that the signatory is duly
Occupation of witness ) authorised to execute this agreement on
behalf of ROWECOM, INC
EXECUTED by ASHCLIFF PTY LTD )
ACN 057 727 198 in accordance with ) /s/ Xxxxxx Xxxxx Xxxx
section 127(1) of the Corporations Law by ) --------------------------------------------
authority of its directors in the presence of: ) Signature of director
[SEAL]
) XXXXXX XXXXX XXXX
) --------------------------------------------
) Name of director (block letters)
)
/s/ Xxxxx Xxxx Xxxxxx ) /s/ X. Xxxx
------------------------------------------- ) --------------------------------------------
Signature of witness ) Signature of director/company secretary*
) *delete whichever is not applicable
)
XXXXX XXXX XXXXXX ) Xxxxxxx Xxxx
------------------------------------------- ) --------------------------------------------
Name of witness (block letters) ) Name of director/company secretary
(block letters)
*delete whichever is not applicable
SIGNED by XXXXXXX XXXX in the )
presence of: )
)
/s/ Xxxxx Xxxx Xxxxxx )
------------------------------------------- )
Signature of witness )
)
XXXXX XXXX XXXXXX )
------------------------------------------- )
Name of witness (block letters) )
)
000 XXXXX XX. XXXXXXXX )
------------------------------------------- )
Address of witness )
)
SOLICITOR ) /s/ X. Xxxx
------------------------------------------- ) --------------------------------------------
Occupation of witness ) Signature of Xxxxxxx Xxxx
--------------------------------------------------------------------------------
SIGNED by XXXXXX XXXXX XXXX )
in the presence of: )
)
/s/ Xxxxx Xxxx Xxxxxx )
------------------------------------------- )
Signature of witness )
)
XXXXX XXXX XXXXXX )
------------------------------------------- )
Name of witness (block letters) )
)
000 XXXXX XXXXXX )
------------------------------------------- )
Address of witness )
)
SOLICITOR ) /s/ Xxxxxx Xxxxx Xxxx
------------------------------------------- ) --------------------------------------------
Occupation of witness ) Signature of Xxxxxx Xxxxx Xxxx
