Exhibit 4.13
Investment Agreement
Cordiant Communications Group Plc
Cordiant Communications (Australia) Pty Ltd
ACN 082 292 019
Pacific Equity Partners Pty Ltd
ACN 083 026 822
The Communications Group Holdings Pty Ltd
ACN 104 455 003
TCG Nominee Pty Limited as trustee of the TCG Trust
and
Others
Freehills
MLC Centre Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx
0000 Xxxxxxxxx
Telephone 00 0 0000 0000 Facsimile 61 2 9322 4000
xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
XXXXXX XXXXXXXXX PERTH BRISBANE HANOI
HO CHI MINH CITY SINGAPORE
Correspondent Offices JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of
Liability Scheme, approved under the Professional
Standards Xxx 0000 (NSW)
1
Reference NJW:PAD
2
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Table of contents
Clause Page
1 Definitions and interpretation 7
1.1 Definitions 7
1.2 Interpretation 12
2 Subscription 12
2.1 Condition 12
2.2 Completion 13
2.3 Implementation of Transaction 13
2.4 Obligations on Cordiant Parties and on the Company prior to Completion 14
2.5 Obligations on the Funds and others at Completion 14
2.6 Obligations on Cordiant Parties and Company at Completion 16
2.7 Obligations on parties at Completion 17
2.8 Interdependency 18
2.9 Restructuring and re-organisation 18
2.10 Property Leases 18
2.11 Post Completion Audit 18
3 Period before and period after Completion 19
3.1 Carrying on of business 19
3.2 Access 19
3.3 Permitted acts 20
3.4 Period after Completion 20
4 Warranties 21
4.1 The Funds warranties and the Trust Warranty and the PEP representation 21
4.2 Warranties 22
4.3 Awareness 22
4.4 Application of Warranties 22
4.5 Disclosure undertaking 22
4.6 Indemnity 23
4.7 No reliance 23
4.8 Monetary and time limitations 24
4.9 Disclosures 24
4.10 Further limitations 24
4.11 Tax limitations 25
4.12 Remedies 25
4.13 Right to reimbursement 26
4.14 Mitigation 26
4.15 Insurance 26
4.16 Acknowledgment 26
4.17 Payments 26
4.18 Effect of Payment 26
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5 Conduct of Claims 27
5.1 Notification of Claims 27
5.2 Conduct of Claims 27
5.3 Access to information 28
6 Announcements 28
6.1 Legal requirements 28
6.2 Disclosure to officers and professional advisers 28
6.3 Further publicity 28
6.4 Agreed announcement 28
7 Duties, costs and expenses 29
7.1 Duties 29
7.2 Costs and expenses 29
7.3 Costs of performance 30
8 GST 30
8.1 Interpretation 30
8.2 GST gross up 30
8.3 Reimbursements 30
8.4 Tax Invoice 30
9 General 30
9.1 Notices 30
9.2 Governing law and jurisdiction 32
9.3 Prohibition or enforceability 32
9.4 Waivers 33
9.5 Variation 33
9.6 Cumulative rights 33
9.7 Non-merger and survival of Warranties 33
9.8 Survival 33
9.9 Further assurances 33
9.10 Entire agreement 33
9.11 Third party rights 34
9.12 Counterparts 34
9.13 Assignment 34
9.14 Attorneys 34
Schedule 1 - Warranties
Schedule 2 - Investor Share Subscriptions
Schedule 3 - Managers
Schedule 4 - Address details for Managers
Schedule 5 - Key Employees
Schedule 6 - Subsidiaries
Schedule 7 - The Funds' Warranties
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Schedule 8 - Properties
Schedule 9 - Business Names and Trade Marks
Schedule 10 - Cordiant UK Knowledge Enquiries
Schedule 11 - Directors and Shareholders
Schedule 12 - Closing Mechanism
Schedule 13 - The Trust Warranties
Annexure A - Constitution
Annexure B - Service Agreements
Annexure C - Shareholders Agreement
Annexure D - Reorganisation Agreements
Annexure E - Data Room Documentation
Annexure F - Network Agreement
Annexure G - Reorganisation Agenda
Annexure H - MarketForce Proceeds Agreement
Annexure I - Tax Assignment Deed
Annexure J - Tax Indemnity Deed
Annexure K - Allocation Spreadsheet
Annexure L - Loan Agreement
Annexure M - Escrow Letter
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This investment agreement
is made on 2003 between the following parties:
1. Cordiant Communications Group Plc of 0-0 Xxxxxxx Xxxxx, Xxxxxx
X0X 0XX, Xxxxxx Xxxxxxx
(Cordiant UK)
2. Cordiant Communications (Australia) Pty Ltd ACN 082 292 019 of
Xxxxx 00, 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
(Cordiant Australia)
3. Xxxx Pacific Associates, LLC of C/- Xxxx Capital LLC, 000
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Xxxxxx Xxxxxx of
America
BCIP Associates II of C/- Xxxx Capital LLC, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Xxxxxx Xxxxxx of America
BCIP Associates II-B of C/- Xxxx Capital LLC, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Xxxxxx Xxxxxx of America
Pacific Equity Partners Fund I Pty Limited (ACN 083 026 822) of
C/- Pacific Equity Partners Pty Limited, Xxxxx 00, 0 Xxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
Pacific Equity Partners (NZ) Limited of C/- Xxxxxxx Xxxxx
Sheffield Young, Level 35, Coopers & Xxxxxxx Tower, 00-00 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxxxxx
PEP Co-Investment Pty Limited (ACN 083 026 859) of C/- Pacific
Equity Partners Pty Limited, Level 36, Chifley Tower, 0 Xxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
PEP Investment Pty Limited (ACN 083 926 084) of C/- Pacific
Equity Partners Pty Limited, Level 36, Chifley Tower, 0 Xxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
(Funds)
Pacific Equity Partners Pty Ltd (ACN 083 026 822) of Xxxxx 00,
Xxxxxxx Xxxxx, 0 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
(PEP)
4. The persons listed in schedule 3 (the Managers and each a
Manager)
5. TCG Nominee Pty Limited as trustee of the TCG Trust of c/- 00
Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000 (Trust)
6. Cordiant Communications Group Australia Pty Ltd ACN 003 203 450
of Xxxxx 00, 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000
(Company)
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7. The Communications Group Holdings Pty Ltd ACN 104 455 003 of c/-
00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 (Investor)
Recitals
A. The Funds and the Trust will subscribe for Investor Shares and
the Investor will borrow funds from certain financial
institutions.
B. Following certain restructuring steps, the Investor will acquire
Cordiant UK's and Cordiant Australia's Company Shares on the
terms and conditions set out in this agreement.
The parties agree
in consideration of, among other things, the mutual promises
contained in this agreement:
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1 Definitions and interpretation
1.1 Definitions
In this agreement:
Accounting Standards means the Australian Accounting Standards from
time to time and if and to the extent that any matter is not covered
by the Australian Accounting Standards means generally accepted
accounting principles applied from time to time in Australia for a
company similar to the Company;
Accounts means the consolidated profit and loss statement and
consolidated balance sheet of the Group as at the Accounts Date;
Accounts Date means 31 December 2002;
Allocation Spreadsheet means the allocation spreadsheet dated the date
of this agreement and initialled by PEP, Cordiant UK, the Trust and
the Managers;
Authorisation means any consent, registration, certificate, licence,
approval, permit, authority or exemption from, by or with a
Governmental Agency;
Bain Funds means Xxxx Pacific Associates, LLC; BCIP Associates II and
BCIP Associates II-B;
Business means the business carried on by the Group;
Business Day means a day on which banks are open for business in
Sydney and London excluding a Saturday or a Sunday or a public
holiday;
Claim means any claim or cause of action (other than a claim or cause
of action under the Tax Indemnity Deed) including, but not limited to:
(a) in contract;
(b) in tort; or
(c) under statute,
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in respect of any Transaction Document, the Business, the Company
Shares, the Investor Shares or any member of the Group or their
affairs or prospects including without limitation in respect of any
breach of Warranty;
Company Share means a share in the capital of the Company;
Completion means completion of the Transaction as provided for under
clause 2;
Completion Date means the day on which the conditions in clauses
2.1(a)(1) - (3) are satisfied or such other date as the parties agree
in writing;
Constitution means the constitution attached to this agreement as
annexure A;
Cordiant Parties means Cordiant UK and Cordiant Australia and Cordiant
Party means either one of them;
Corporations Act means the Corporations Xxx 0000 (Cth);
Data Room Documentation means:
(a) the documents and information contained in the data room
established and made available to the Investor, the Funds and
their representatives and advisers; and
(b) the answers to requests for further information made by the
Investor, the Funds and their representatives and advisers,
an index of which is set out in annexure E;
Disclosure Letter means the letter from Cordiant UK to the Investor
dated the same date as this agreement, containing disclosures in
respect of the Warranties;
Dollars, A$ and $ means the lawful currency of the Commonwealth of
Australia;
Duty means any stamp, transaction or registration duty or similar
charge imposed by any Governmental Agency and includes, but is not
limited to, any interest, fine, penalty, charge or other amount
imposed in respect of the above, but excludes any Tax;
Employees means the employees of the Group;
Escrow Letter means the escrow letter in the form attached to this
agreement as annexure K;
Excluded Companies means Blackbook Holdings Pty Ltd, The Campaign
Palace Limited, The Media Palace Pty Ltd, Black Book Nominees Pty Ltd,
Black Book Nominees (Sydney) Pty Ltd, Marketforce Limited, Redline
Marketing Studio Pty Limited, Marketforce Advertising Limited,
Knockout Solutions Limited, E Media Works Limited, Design One
Productions Pty Ltd, In Sync Communications Pty Ltd, Marketforce
Nominees Pty Limited and Professional Public Relations (Asia) Limited;
Facility Document means the facility agreement between the Investor,
National Australia Bank Limited, Westpac Banking Corporation and
others to be entered into on or prior to the Completion Date on terms
no less favourable to the Investor than the terms set out in the
commitment letters from each of National Australia Bank Limited and
Westpac Banking Corporation to the Investor;
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Governmental Agency means any government or governmental,
semi-governmental, fiscal, administrative or judicial body,
department, commission, authority, instrumentality, tribunal, agency
or entity;
Group means each of the Company and the Subsidiaries including The
Communications Group Limited and X/M Pty Limited but excluding the
Excluded Companies and Group Company means any one of them;
Investment Services Agreement has the meaning given to that term in
the Shareholders Agreement;
Investor Share means an ordinary share in the capital of the Investor;
Loan Agreement means the loan agreement attached to this agreement as
annexure L;
Key Employee means an employee listed in schedule 5;
Limitation Period has the meaning given to that term in the Tax
Indemnity Deed;
Loss means any damage, claim, action, liability, cost, expense,
outgoing, payment, fine or penalty or other loss of whatever nature;
Management Accounts means the unaudited management accounts prepared
in respect of the Business for March 2003 and, to the extent that such
accounts are in existence at any relevant date, each subsequent
calendar month until Completion;
Material Adverse Change Event means an event which has (or a series of
events which taken together have) an adverse impact on the annual
consolidated earnings before interest and tax of the Group in an
amount of more than $1,000,000 (net of the amount of any direct cost
savings of any Group Company arising as a result of such event and net
of the amount of the dollar impact of any event which has (or series
of events which taken together have) a positive impact on the annual
consolidated earnings before interest and tax of the Group) and
includes the termination by Telstra Corporation Limited of the Heads
of Agreement between Telstra Corporation Limited and the Investor
dated 12 May 2003, provided that for the purpose of this definition a
reference to an "event" is a reference to an actual occurrence and
does not for the avoidance of doubt include a re-forecasting,
re-budgeting, revision or amendment of an account, plan or budget and
provided that a decision by a client to review an account held by such
client with a Group Company will not of itself constitute a Material
Adverse Change Event;
MarketForce Proceeds Agreement means the agreement entitled "Deed of
Assignment - MarketForce Proceeds" between the Company, certain of the
Subsidiaries and Xxxxx Worldwide, Inc., in the form attached to this
agreement as annexure H;
MarketForce Sale Agreement has the meaning given to the term
"MarketForce Deed" in the MarketForce Proceeds Agreement;
Network Agreement means the network agreement between Xxxxx Worldwide,
Inc., Xxxxxx Xxxxxxxxx Pty Ltd and others in the form attached to this
agreement as annexure F;
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PEP Funds means Pacific Equity Partners Fund 1 Pty Ltd; Pacific Equity
Partners (NZ) Limited; PEP Co-Investment Pty Ltd and PEP Investment
Pty Ltd;
Pre-Completion Tax Return has the meaning set out in the Tax Indemnity
Deed;
Properties means the leased properties listed in schedule 8;
PPR Guarantees means any guarantees given by Professional Public
Relations Pty Limited to National Australia Bank Limited:
(a) as security for an overdraft facility provided by National
Australia Bank Limited to Vision Splendid Media Pty Limited dated
30 April 1998; or
(b) as security for a Business Secured Overdraft provided by National
Australia Bank Limited to Vision Splendid Media Pty Limited dated
15 November 2000;
Related Corporation has the meaning given to the term "related body
corporate" in the Corporations Act;
Reorganisation Agenda means the agenda entitled "Restructure of
Cordiant Group", setting out the corporate actions to be taken by the
Cordiant Parties and the Group prior to Completion, attached to this
agreement as annexure G;
Reorganisation Agreements means the agreements attached to this
agreement as annexure D;
Security Interest means an interest or power:
(a) reserved in or over an interest in any asset excluding any
retention of title arising in the ordinary course of business; or
(b) created or otherwise arising in or over any interest in any asset
under a xxxx of sale, mortgage, charge, lien, pledge, trust or
power,
by way of security for the payment of a debt or any other monetary
obligation or the performance of any other obligation and includes,
but is not limited to, any agreement to grant or create any of the
above;
Service Agreements means the service agreements between the Company
and certain employees of the Group substantially in the form of the
pro forma agreement attached as annexure B;
Shareholders Agreement means the shareholders agreement between the
Funds, Cordiant Australia and others in the form attached to this
agreement as annexure C;
Subsidiaries means the companies which will be subsidiaries (as
defined in the Corporations Act) of the Company after Completion
including those listed in Schedule 6 and Subsidiary means any one of
them;
Tax means any tax, levy, charge, impost, duty, fee, deduction or
withholding, but excludes any Duty or similar charge, which is
assessed, levied, imposed or collected by any Governmental Agency and
includes, but is not limited to any interest, fine, penalty, charge,
fee or any other amount imposed on, or in respect of, any of the
above;
Tax Act means the Income Tax Assessment Acts of 1936 and 1997, as in
force at Completion;
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Tax Assignment Deed means the deed of assignment between the Company,
Cordiant UK and others in the form of the deed attached to this
agreement as Annexure I;
Tax Claim and Tax Liability have the meaning given to such terms in
the Tax Indemnity Deed;
Tax Indemnity Deed means the agreement in the form attached as
Annexure J;
Tax Law means any law relating to either Tax or Duty as the context
requires;
Tax Receivables has the meaning given to the term "Receivables" in the
Tax Assignment Deed;
Tax Warranties means the warranties in paragraph 21 of schedule 1;
Third Party Claim means any claim asserted by any third party
(including any Governmental Agency) against the Investor, the Funds,
PEP, the Trust, a Manager or a Group Company or Xxxx Capital llc, in
respect of which a Cordiant Party may be liable under this agreement;
Transaction means the subscription by the Funds and the Trust for
Investor Shares, the acquisition by the Investor of Company Shares
from the Cordiant Parties on the terms of this agreement and the other
actions referred to in clause 2;
Transaction Documents means:
(a) this agreement;
(b) the Constitution;
(c) the MarketForce Proceeds Agreement;
(d) the Service Agreements;
(e) the Facility Document;
(f) the Shareholders Agreement;
(g) the Reorganisation Agreements and any other documents relating to
the Reorganisation Agenda;
(h) the Tax Indemnity Deed;
(i) the Tax Assignment Deed;
(j) the Network Agreement;
(k) the Investment Services Agreement;
(l) the Disclosure Letter;
(m) the Loan Agreement;
(n) the Allocation Spreadsheet; and
(o) the Escrow Letter;
Valuer has the meaning given to the term Independent Auditor in the
Tax Indemnity Deed;
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Warranty Claim means any claim or cause of action in respect of any
breach of the Warranties or clause 2.9 or any similar claim or cause
of action, whether based in contract, tort, under statute or
otherwise; and
Warranties means the warranties and representations set out in
schedule 1.
1.2 Interpretation
In this agreement, unless the context otherwise requires:
(a) headings are for convenience only and do not affect the
interpretation of this agreement;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other
body corporate and any Governmental Agency;
(f) a reference to a clause, party, annexure or schedule is a
reference to a clause of, and a party, annexure and schedule to,
this agreement and a reference to this agreement includes any
annexure and schedule;
(g) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute;
(h) a reference to a document includes all amendments or supplements
to, or replacements or novations of, that document;
(i) a reference to a party to a document includes that party's
successors and permitted assigns;
(j) where the day on or by which any thing is to be done is not a
Business Day, that thing must be done on or by the following
Business Day;
(k) no provision of this agreement will be construed adversely to a
party solely on the ground that the party was responsible for the
preparation of this agreement or that provision; and
(l) a covenant or agreement on the part of two or more persons is
given by them and binds them severally and not jointly and
severally.
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2 Subscription
2.1 Condition
(a) Completion will not proceed unless:
(1) Cordiant UK has obtained shareholder approval for it to
carry out the matters contemplated by this agreement;
(2) Cordiant UK has received from its lenders approval for it to
carry out the matters contemplated by this agreement;
(3) the Investor has received from its financiers under the
Facility Document the funds necessary for it to carry out
the matters contemplated by this agreement; and
(4) there has been no Material Adverse Change Event.
(b) Cordiant UK must use its best endeavours to satisfy the
conditions in clause 2.1(a)(1) and clause 2.1(a)(2). The Funds
and PEP must use their best endeavours to satisfy the condition
in clause 2.1(a)(3) on or before the date of the meeting of
Cordiant UK shareholders convened in order to satisfy the
condition in clause 2.1(a)(1).
(c) A party must promptly notify the other parties in writing if it
discovers that a condition in clause 2.1(a) is satisfied or
becomes incapable of being satisfied.
(d) The conditions in clause 2.1(a) may only be effectively waived if
waived by the Funds and Cordiant UK.
(e) If any condition in clause 2.1(a) is not waived in accordance
with clause 2.1(d) or satisfied on or before 30 June 2003, this
agreement automatically terminates. Upon termination, this
agreement has no further effect except as provided in clause 9.8,
and no party is liable to any other party, except in respect of
any breach of this agreement occurring before termination.
2.2 Completion
Subject to clause 2.1(a), Completion must take place at the offices of
Freehills in Sydney on the Completion Date unless otherwise agreed by
the parties.
2.3 Implementation of Transaction
The remaining sub-clauses of this clause 2 set out the actions to be
completed to implement the Transaction. Implementation of the
Transaction will involve the following steps occurring in the
following order:
(a) following execution of this agreement and prior to Completion:
(1) the Company redeeming all of the redeemable preference
shares issued by the Company (see clause 2.4);
(2) the Company undertaking the steps set out in the
Reorganisation Agenda including paying the dividends and
repaying the inter
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group loans as contemplated in the Reorganisation Agenda
(see clause 2.4), to the extent that such steps have not
already taken place; and
(3) the Company repaying part of the loan owed to Xxxxx
Worldwide, Inc. (see clause 2.4);
(b) at Completion, the Company procuring the repayment of certain
loans owing to Cordiant UK and Related Corporations of Cordiant
UK (see clause 2.7); and
(c) at Completion:
(1) the Funds and the Trust subscribing (or procuring the
subscription for) in aggregate $20,650,001 in the Investor
(see clause 2.5);
(2) the Investor borrowing $47,500,000 from certain financial
institutions (see clause 2.5);
(3) the Investor purchasing all of the Company Shares held by
the Cordiant Parties in consideration for:
(A) the issue of 8,849,999 Investor Shares to Cordiant
Australia (see clause 2.5); and
(B) the payment of $38,141,246 in aggregate to such parties
in the manner set out in clause 2.5; and
(4) the Investor being the sole shareholder of the Company
following the share purchase.
2.4 Obligations on Cordiant Parties and on the Company prior to Completion
Prior to or at Completion the Cordiant Parties and the Company must,
to the extent that such actions have not already been taken, ensure
that:
(a) the Company redeems the 358 redeemable preference shares issued
by the Company for $3,580,000 payable in cash;
(b) the Company procures the sale of all of the shares in the
Excluded Companies and purchases all of the shares in X/M Pty
Limited from Cordiant UK and all of the shares in The
Communications Group Limited from Chafma BV, such sales to take
place pursuant to the terms of the Reorganisation Agreements;
(c) the Company procures payment of a fully franked special dividend
of $37,581,000;
(d) the Company takes all of the other steps listed in the
Reorganisation Agenda;
(e) any Group Company which has the name Cordiant as part of its
company name, changes its name to a name that does not include
the word Cordiant or any name similar to the Cordiant name;
(f) the Company procures the execution and delivery to Cordiant UK of
the Tax Assignment Deed;
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(g) the Company repays $4,687,961 of the loan of $10,110,184 owing by
it to Xxxxx Worldwide, Inc., by procuring that Cordiant Australia
agrees to repay to Xxxxx Worldwide, Inc. the sum of $4,687,961;
and
(h) the Company enters into and delivers to Cordiant Australia the
MarketForce Proceeds Agreement, duly executed by all parties
thereto .
2.5 Obligations on the Funds and others at Completion
(a) At or before Completion the Funds, the Managers, the Trust and
the Investor must ensure that:
(1) the Constitution is adopted as the Investor's constitution;
(2) a meeting of directors of the Investor is held to:
(A) establish the Board of the Investor in the manner
contemplated by the Shareholders Agreement;
(B) issue subject to receipt of the subscription price set
out in column 3 of schedule 2 the Investor Shares to be
issued to the Funds and the Trust as set out in column
2 of schedule 2;
(C) authorise the Investor purchasing from Cordiant UK
29,205,560 Series A Company Shares and from Cordiant
Australia 8,344,440 Series A Company Shares and
12,450,000 Series B Company Shares, the consideration
for which shall be:
(i) the payment to Cordiant UK of $27,448,113;
(ii) the issue to Cordiant Australia of 8,849,999
Investor Shares and the payment to Cordiant
Australia of $10,693,133; and
(D) authorise the execution of the Transaction Documents to
which the Investor is a party (other than the
Constitution);
(E) authorise the payment of the costs and expenses as
provided in clause 7.2; and
(F) authorise the Investor drawing down $47,500,000 under
the Facility Documents, lending $23,008,755 to the
Company (on the terms of the Loan Agreement) and taking
the other steps to be taken by it in connection with
the Transaction,
all such resolutions to be subject to Completion occurring;
(3) the Investor, on receipt of the subscription price for the
Investor Shares, issues to the party subscribing for such
shares share certificates, and updates the register of
members;
(4) the Investor draws down $47,500,000 under the Facility
Documents;
(5) the Investor executes share transfer forms for the transfer
to the Investor of 29,205,560 Series A Company Shares from
Cordiant
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UK and the transfer to the Investor of 8,344,440 Series A
Company Shares and 12,450,000 Series B Company Shares from
Cordiant Australia and the Investor issues to Cordiant
Australia 8,849,999 Investor Shares, issues share
certificates for such shares and updates the register of
members accordingly;
(6) the Investor pays to Cordiant UK $27,448,113 and pays to
Cordiant Australia $10,693,133; and
(7) the Investor executes any Transaction Document to which it
is a party.
(b) At or prior to Completion, the Funds and the Trust must:
(1) subscribe for the Investor Shares set opposite its name in
schedule 2, pay the applicable subscription monies and
execute the Transaction Documents to which it is a party;
and
(2) procure so far as it is reasonably able to, the drawdown by
the Investor of $47,500,000 under the Facility Document.
(c) At or prior to Completion, PEP must execute any Transaction
Document to which it is a party.
(d) The Trust agrees in favour of the Investors and the Cordiant
Parties that:
(1) as to 2,787,750 Investor Shares to be subscribed for by it,
such shares will be held by it as trustee for the Managers
in the proportions set out in the Allocation SpreadShhet;
(2) as to 1,637,250 Investor Shares to be subscribed for by it,
such shares will be held by it as trustee for the
individuals listed as tier three and tier four managers in
the Allocation Spreadsheet provided that the Trust may,
rather than subscribing for a portion of the Investor Shares
on behalf of a particular manager, procure that such manager
subscribes directly for such Investor Shares (provided that
such person signs an adherence deed agreeing to adhere to
this agreement and the Shareholders Agreement) and provided
further that the Trust may substitute a person listed as a
tier three or tier four manager or may elect to alter the
number of Investor Shares allocated to a particular tier
three or tier four manager provided that any such change to
the identity of managers or the allocations to such persons
are first approved by Cordiant UK and the Investors; and
(3) procure that each tier three and tier four manager signs a
deed, in Cordiant UK's favour, agreeing to be bound by this
agreement to the same extent as if named in it as a
"Manager".
(e) Each Manager severally agrees to subscribe, on or before
Completion, for units in the Trust up to the value of units
specified against his or her name in the Allocation Spreadsheet.
(f) The PEP Funds agree to underwrite the subscription obligations of
the Trust pursuant to clause 2.5(d)(2) such that if the Trust
does not subscribe in full for 1,637,250 Investor Shares pursuant
to that clause, the PEP
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Funds will between them subscribe for any such Investor Shares
which the Trust does not subscribe for under clause 2.5(d)(2).
2.6 Obligations on Cordiant Parties and Company at Completion
At or before Completion the Cordiant Parties and the Company must
ensure that:
(a) Cordiant UK executes a share transfer form for the transfer of
29,205,560 Series A Company Shares from Cordiant UK to the
Investor for the payment of $27,448,113;
(b) Cordiant Australia executes three share transfer forms for the
transfer of the following Company Shares from Cordiant Australia
to the Investor:
(1) 1,072,207 Series B Company Shares for the issue of 1,007,686
Investor Shares;
(2) 8,344,440 Series A Company Shares for the issue of 7,842,313
Investor Shares; and
(3) 11,377,793 Series B Company Shares for the payment of
$10,693,133;
(c) a meeting of directors of the Company is held to:
(1) appoint the persons nominated by the Investor prior to
Completion as directors of the Company;
(2) approve the transfer of Company Shares from the Cordiant
Parties to the Investor; and
(3) authorise the execution of the Transaction Documents to
which the Company is a party,
all such resolutions to be subject to Completion occurring;
(d) the Company issues to the Investor a share certificate for the
Company Shares purchased by the Investor from the Cordiant
Parties and updates the register of members;
(e) the Company executes the Transaction Documents to which it is a
party and procures that any Subsidiary that is a party to a
Transaction Document execute such Transaction Document;
(f) all parties to the Network Agreement execute the Network
Agreement;
(g) unless executed previously, all parties to the MarketForce
Proceeds Agreement execute the MarketForce Proceeds Agreement;
(h) the Cordiant Parties execute the Tax Indemnity Deed; and
(i) the Cordiant Parties and the Company execute all other
Transaction Documents to which they are a party.
2.7 Obligations on parties at Completion
At Completion all parties must take all action within their power to
procure that:
(a) the Investor lends $23,008,755 to the Company and the Company
lends $10,531,967 to Xxxxxx Xxxxxxxxx Pty Ltd and $2,317,970 to
X/M Pty Ltd;
17
(b) Xxxxxx Xxxxxxxxx Pty Ltd repays the loan of $15,531,967 owing by
it to Cordiant UK by way of the payment of the sum of $10,531,967
and the assignment of the Tax Receivables by way of the entry
into and delivery to Cordiant UK of the Tax Assignment Deed;
(c) the Company repays the loan of $5,422,223 owing by it to Xxxxx
Worldwide, Inc. by way of the payment of the sum of $5,422,223;
(d) Cordiant Australia repays the loan owing by it to the Company of
$281,000 by off-setting such amount against $281,000 of the
Cordiant Loan. The term Cordiant Loan means the loan owned by the
Company to Cordiant Australia of $4,856,595;
(e) the Company repays $4,575,595 to Cordiant Australia in full and
final satisfaction of the Cordiant Loan;
(f) X/M Pty Ltd repays the loan of $2,317,970 owing by it to X/M New
York by way of the payment of $2,317,970; and
(g) the Company pays $37,581,000 to Cordiant UK by way of payment of
the promissory note issued to Cordiant UK in satisfaction of the
dividend paid to Cordiant UK pursuant to clause 2.4(c).
2.8 Interdependency
The obligations of the parties in respect of Completion are
interdependent. All actions at Completion will be deemed to take place
simultaneously and no delivery or payment will be deemed to have been
made until all deliveries and payments under this agreement have been
made.
2.9 Restructuring and re-organisation
The Cordiant Parties agree and undertake to indemnify and hold
harmless the Investor from all Loss incurred by the Investor in
connection with any of the matters and actions contemplated by the
Reorganisation Agenda and the Reorganisation Agreements other than any
Tax payable by any party as a consequence of any action taken pursuant
to the Reorganisation Agenda or the Reorganisation Agreements.
2.10 Property Leases
The Cordiant Parties must use best endeavours to obtain, prior to
Completion, the consent (of the relevant landlord) to the deemed
assignment of the following Property Leases by virtue of the change in
ownership of the Company occurring under the Transaction Documents:
(a) 000-000 Xxxxxxx Xxxxxx, Xxxxxxxxx;
(b) Xxxxx 0, Xxxxxxx Xxxxx, 00 Xxxxx Xxxxxx, Xxxxxxxx; and
(c) Level 6 and Part Xxxxx 0, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
and at Completion must provide to the Funds copies of any such
consents as are obtained prior to Completion. If such consents are not
obtained prior to Completion, Completion will proceed and the parties
must use their best endeavours to obtain the consent of the relevant
landlords following Completion.
18
2.11 Post Completion Audit
The post-Completion audit mechanics are set out in schedule 12. The
parties must perform their obligations set out in schedule 12.
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3 Period before and period after Completion
3.1 Carrying on of business
Subject to clause 3.3, between the date of this agreement and
Completion, the Cordiant Parties must use reasonable endeavours to
ensure that:
(a) the business of the Group is conducted in the ordinary course in
all material respects;
(b) the Company does not pay any dividend or distribute or return any
capital to its members;
(c) no Group Company:
(1) issues any shares, options or securities which are
convertible into shares in that Group Company or buys back
any of its shares;
(2) enters into any material contract or arrangement outside the
ordinary course of business or otherwise than on arm's
length terms;
(3) acquires or disposes of any assets other than on arm's
length terms;
(4) engages any new employee to fill a new role with an annual
remuneration package in excess of $150,000 or, except in the
ordinary course of business, terminates the employment of
any of its employees or changes in any material respect the
terms of employment (including remuneration);
(5) makes any material change to its policy and practice as to
payment of creditors and collection of trade receivables;
(6) incurs any indebtedness or liability in the nature of
borrowings other than in the ordinary course of business; or
(7) alters its constitution.
3.2 Access
Before the Completion Date, the Cordiant Parties must use reasonable
endeavours to ensure that the Funds and a reasonable number of persons
authorised by the Funds:
(a) are given reasonable access during normal business hours and on
reasonable notice, to inspect the assets, Properties, books of
account, records and documents of the Group; and
(b) have reasonable access to senior management of the Group.
19
However, the Funds must ensure that any persons provided with the
access referred to in clause 3.2(a) comply with the reasonable
requirements of the Group and do not interfere with the Business
or operations of the Group.
3.3 Permitted acts
Before Completion, a Cordiant Party or any Group Company may do
anything:
(a) contemplated in this agreement or any other Transaction Document
(including as contemplated in the Reorganisation Agenda);
(b) to reasonably and prudently respond to an emergency, disaster or
unexpected situation (including a situation giving rise to a risk
of personal injury or damage to property);
(c) which is necessary for a Group Company to meet its legal or
contractual obligations;
(d) first approved by the Funds in writing, such approval not to be
unreasonably withheld or delayed;
(e) to comply with an obligation under any agreement to which such
entity is a party to make distributions to its shareholders;
(f) to pay the Cordiant UK authorised bonus payments to employees in
relation to the year ended 31 December 2002 provided for in the
Accounts; or
(g) to continue to operate the cash pooling arrangements in place
between the Group and the Cordiant Parties provided that no more
than $41,000,000 is provided to Cordiant UK under such pooling
arrangements; and
(h) to enter into the MarketForce Sale Agreement and to pay the
proceeds received at completion of the MarketForce Sale Agreement
Xxxxx Worldwide, Inc. (or any other Related Corporation of
Cordiant UK) if completion of the MarketForce Sale Agreement
occurs prior to Completion, in accordance with the terms of the
MarketForce Proceeds Agreement.
3.4 Period after Completion
(a) The parties agree that in the period to 30 June 2003 none of the
following actions will take place, without the prior written
consent of Cordiant UK:
(1) the payment of dividends to the Company such that the
aggregate of all dividends received by the Company in the
financial year ending 30 June 2003 exceeds $1,000,000;
(2) a transfer of shares by the Company for consideration other
than the book value of such shares;
(3) the provision of an intra-group loan by the Company such
that the amount outstanding in relation to all intra-group
loans made by the Company exceeds $20,000,000 or such that
the total annual interest receivable by the Company in the
financial year ending 30 June 2003 will exceed $1,000,000;
20
(4) the payment or receipt of any management charge from the
Company to a subsidiary of the Company such that the
aggregate of all management charges made or received by the
Company in the financial year ending 30 June 2003 exceeds
$1,000,000;
(5) a revaluation of any asset which would result in a gain of
in excess of $1,000,000 being recorded in the Company's
accounts; and
(6) the completion of any other transaction which results in
income, under Australian generally accepted accounting
principles, in the financial year ending 30 June 2003, which
is not subject to Tax (including where such income is
sheltered from Tax by the transfer of Tax losses from other
Group Companies), of the Company in excess of $1,000,000.
(b) The parties must ensure that the Company and each Group Company
submits the tax returns for the years ended 31 December 2001 and
31 December 2002 of each such entity as soon as possible after
the date of this agreement and in any event prior to 15 July
2003. In addition, the parties agree that, unless Cordiant UK and
PEP agree otherwise, KPMG will be retained to continue to act as
the tax agent for the Group in respect of the periods ended 31
December 2001, 31 December 2002 and 30 June 2003.
(c) The parties must ensure that each Group Company changes its
current year end for accounting purposes from 31 December 2003 to
30 June 2003, as soon as possible after the date of this
agreement.
(d) The Funds and the Investor agree that they will prepare the
consolidated profit and loss statement and consolidated balance
sheet of the Group for the 6 month period ending 30 June 2003, as
soon as is reasonably possible following 30 June 2003.
(e) The parties must ensure that no choice to consolidate a
consolidatable group under section 703-50 of the Income Tax
Assessment Act 1997 is made, and no other action taken, which
would have the effect of forming a consolidated group (within the
meaning of Division 703 of that Act) of which any Group Company
is a member with effect from a date on or before 30 June 2003.
--------------------------------------------------------------------------------
4 Warranties
4.1 The Funds warranties and the Trust Warranty and the PEP representation
(a) The Funds represent and warrant to Cordiant UK that each of the
warranties set out in schedule 7 is, at the date of this
agreement, and on the Completion Date will be, true and correct.
(b) PEP represents to Cordiant UK that to the best of its knowledge
and belief there is no reason to believe that any of the
conditions to the draw down by the Investor of the funds
necessary for it to carry out the matters
21
contemplated by this agreement under the Facility Documents will
not be satisfied on or before the Completion Date.
(c) The Trust represents and warrants to Cordiant UK and to the Funds
that each of the warranties set out in schedule 13 is at the date
of this agreement, and on the Completion Date will be, true and
correct.
(d) Except to the extent of the Trust's breach of trust, fraud or
negligence the Trust is not liable to any other party to a
greater extent than the extent to which it is entitled to be and
is in fact indemnified out of the property of the TCG Trust.
4.2 Warranties
Subject to the qualifications and limitations in this clause 4 and
clause 5, Cordiant UK represents and warrants to the Investor that
each of the Warranties is, at the date of this agreement, and on the
Completion Date will be, true and correct.
4.3 Awareness
Where the Warranties are qualified by reference to Cordiant UK's
knowledge, awareness or belief, the Investor acknowledges and agrees
that Cordiant UK's knowledge, awareness and belief is limited to
matters within the actual knowledge of the following persons (having
made the enquiries specified in schedule 10):
(a) Xxxx Xxxxxx;
(b) Xxxxxx Xxxxxxxxx;
(c) Xxxxxxx X Xxxxxxx;
(d) Xxxx Xxxxxx;
(e) Xxx Xxxxx;
(f) Xxxxx Xxxxxx;
(g) Xxxxx Bridge;
(h) Xxxx Xxxxxx;
(i) Xxxxxxx Xxxxxxxx;
(j) Xxxxxxx Xxxxx;
(k) Xxxx Xxxxx;
(l) Xxxx Xxxxxxx; and
(m) Xxxxx Xxxxxxxxx.
4.4 Application of Warranties
Each of the Warranties:
(a) remains in full force and effect after Completion; and
(b) is separate and independent and is not limited by reference to
any other Warranty or any other provision in this agreement.
22
4.5 Disclosure undertaking
Prior to Completion, the Cordiant Parties undertake to disclose as
soon as practicable in writing to PEP anything which is or may
constitute a breach of or be inconsistent with any of the Warranties
when it comes to the notice of either of them.
4.6 Indemnity
Subject to the qualifications and limitations in clauses 4 and 5,
Cordiant UK indemnifies the Investor from all Loss which the Investor
suffers or incurs arising out of or in connection with any breach of
the Warranties.
4.7 No reliance
(a) The Investor acknowledges and agrees that:
(1) review: it has entered into this agreement after inspection
of the Data Room Documentation and that it is aware of the
information referred to in clause 4.9(c);
(2) prior statements: any statement, representation, term,
conduct, warranty, condition, promise or undertaking made,
given, implied or agreed to by Cordiant UK or any
representative or adviser of Cordiant UK in any negotiation,
arrangement, understanding, discussion, correspondence or
agreement has no effect except to the extent expressly set
out in this agreement;
(3) reliance: except for the Warranties, no statement,
representation or other conduct of Cordiant UK or any
representative or adviser of Cordiant UK has been relied on
by it or has induced or influenced it to enter into this
agreement; and
(4) statutory rights: to the maximum extent permitted by law, it
waives any right to make and agrees not to make any claim
against Cordiant UK or any Related Corporation of Cordiant
UK or any of their representatives or advisers under the
Corporations Act, the Trade Practices Xxx 0000 (Cth), the
Australian Securities and Investments Commission Xxx 0000
(Cth) or similar provisions in legislation of any state or
territory.
(b) The Trust, each Fund and each Manager acknowledges and agrees
that:
(1) no statement, representation or other conduct of Cordiant UK
or any representative or adviser of Cordiant UK has been
relied on by any such person or has induced or influenced
any such person to enter into this agreement; and
(2) to the maximum extent permitted by law, that person waives
any right to make and agrees not to make any claim against
Cordiant UK or any Related Corporation of Cordiant UK or any
of their representatives or advisers under the Corporations
Act, the Trade Practices Xxx 0000 (Cth), the Australian
Securities and Investments Commission Xxx 0000 (Cth) or
similar provisions in legislation of any state or territory.
23
(c) PEP (on its own behalf and not on behalf of any other party)
acknowledges and agrees that to the maximum extent permitted by
law, it waives any right to make and agrees not to make any claim
whatsoever against Cordiant UK or any Related Corporation of
Cordiant UK or any of their representatives or advisers in
relation to or in any way connected with the matters contemplated
by this agreement.
4.8 Monetary and time limitations
The Investor's right to make a Warranty Claim is limited as follows:
(a) timing: Cordiant UK is not liable to the Investor in respect of a
Warranty Claim unless:
(1) in the case of a Warranty Claim other than one which relates
to a Tax Warranty, the Investor has given written notice to
Cordiant UK setting out the details of the claim in question
within 18 months after the Completion Date; or
(2) in the case of a Warranty Claim which relates to a Tax
Warranty, the Investor has given written notice to Cordiant
UK setting out details of the claim in question within the
Limitation Period;
(b) thresholds: Cordiant UK is not liable to the Investor in respect
of a Warranty Claim unless:
(1) the amount finally agreed or adjudicated to be payable in
connection with that Warranty Claim exceeds $250,000; and
(2) the aggregate amount finally adjudicated or agreed as being
payable in respect of all Warranty Claims which may be
recovered under clause 4.8(b)(1) exceeds $1,500,000, in
which case the Investor may claim the whole amount; and
(c) maximum: the maximum aggregate amount which the Investor may
recover from the Cordiant UK in respect of all Warranty Claims
and in respect of the Tax Indemnity Deed is $61,150,000.
4.9 Disclosures
Each Warranty is subject to, and no Warranty Claim may be made in
respect of, any fact, matter or circumstance:
(a) provided for in or contemplated by this agreement or any other
Transaction Document;
(b) fairly disclosed in Data Room Documentation or the Disclosure
Letter;
(c) fairly disclosed in the written correspondence (including email
correspondence) from a Cordiant Party or a Group Company or an
adviser of any such party to PEP or an adviser of PEP; or
(d) disclosed on any public record kept by ASIC or any trade xxxx
registry in Australia.
24
4.10 Further limitations
Cordiant UK is not liable for any Claim and neither the Investor nor
any other party may make any Claim, to the extent that:
(a) the Claim is made good, offset (including as a result of
expenditure being tax deductible) or compensated for by any other
means to the Investor or a Group Company, including any Loss
which is recoverable (net of any tax payable) by the Investor or
any member of the Group under a policy of insurance;
(b) a provision, reserve or accrual has been made in the Accounts for
any fact, matter or circumstance on which the Claim is based;
(c) the Claim arises or is increased as a result of anything done or
not done after the Completion Date by the Funds, the Investor or
any Group Company or any person acting, or purporting to act, on
their behalf, except an act done or omission made pursuant to
this agreement;
(d) the Claim arises as a result of:
(1) the enactment or amendment of any legislation or regulation
(including legislation or regulation which has a
retrospective effect or any increase in the rates of Tax
announced after the date of this agreement);
(2) a change in the judicial interpretation of any law; or
(3) a change in the administrative practice of any Government
Agency,
after the date of this agreement;
(e) the matter giving rise to the Claim is remediable and, within 30
Business Days after receiving written notice of the Claim,
Cordiant UK remedies the matter;
(f) the Claim relates to a liability that is contingent, unless and
until the liability becomes an actual liability and is due and
payable; or
(g) recovery (less any reasonable costs) has been made by the
Investor or the relevant Group Company under the Tax Indemnity
Deed in respect of the same subject matter.
4.11 Tax limitations
Without limiting any other clauses of this clause 4, Cordiant UK is
not liable for any Claim and the Investor must not bring any Claim to
the extent that:
(a) the Claim arises from a failure by the Funds, the Investor or any
member of the Group to make any claim, election, surrender or
disclaimer or give any notice or consent or do any other thing
after Completion;
(b) where the Claim relates to a breach of a Tax Warranty, the Tax
the subject of the Claim would not have arisen but for any change
in ownership of the Investor or the Group Companies or other
restructure of the Business or the Group on or after Completion
or any change in the accounting policy or practice of the
Investor or of the Group Companies after Completion; or
25
(c) the Claim arises out of the cessation or alteration of the
Business after Completion.
4.12 Remedies
The Investor's sole remedy for breach of any of the Warranties is
damages in accordance with (and subject to) this clause 4 and in no
event is the Investor entitled to rescind this agreement for breach of
a Warranty.
4.13 Right to reimbursement
(a) The Investor must reimburse to Cordiant UK an amount equal to any
amount paid by Cordiant UK in respect of any Claim which is
subsequently recovered by or paid to the Investor or any member
of the Group (net of any tax payable) by any third party
(including any insurer).
(b) Any money paid in respect of an assessment of Tax by or on behalf
of a Group Company in respect of a period before Completion must
be paid to Cordiant UK if repaid by the Government Agency to the
Investor or any Group Company following Completion.
4.14 Mitigation
(a) The Investor must ensure that all reasonable steps are taken and
all reasonable assistance is given to avoid or mitigate any Loss
in respect of any Claim or possible Claim.
(b) Without limiting clause 4.14(a), the Investor must take all steps
reasonably available to them to minimise any Tax which relates
(in whole or in part) to transactions or events occurring or
deemed to occur or income or gains derived or deemed to be
derived or expenditure or losses incurred or deemed to be
incurred on or before the Completion Date, including taking the
benefit of any relief, allowance, credit or deduction.
4.15 Insurance
The Investor and the Managers must ensure that the Group has in place
from Completion, valid insurance cover in respect of the Business for
the period to Completion, of an amount and on terms no less favourable
than the insurance maintained in respect of the Group prior to
Completion (the "Pre-Completion Policies") and the Investor, the Funds
and the Managers must ensure that such insurance provides coverage in
respect of any claim made in respect of the Group which would have
been covered by the Pre-Completion Policies had it been notified prior
to Completion.
4.16 Acknowledgment
The Investor and the Funds acknowledge that at the time of entering
into this agreement, they are not aware of any fact, matter or
circumstance that could be considered reasonably likely to give rise
to a Claim.
26
4.17 Payments
If in respect of or in connection with any Warranty Claim any amount
payable to the Investor by the Cordiant Parties is subject to Tax,
such additional amounts shall be paid to the Investor by the Cordiant
Parties so as to ensure that the net amount received by the Investor
is equal to the full amount payable to the Investor under this
agreement.
4.18 Effect of Payment
A payment in relation to a Claim under this Agreement will be, to the
extent possible, an adjustment to the Purchase Price for each share.
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5 Conduct of Claims
5.1 Notification of Claims
If the Funds, the Investor or any member of the Group becomes aware of
any circumstances which constitute or are likely (whether alone or
with any other circumstances or with the passage of time) to give
grounds for a Claim, the Investor must (and must cause each Group
Company to):
(a) notice: provide to Cordiant UK as soon as reasonably possible and
in any event within 10 Business Days of becoming aware of such
circumstances, notice of the circumstances and the Claim or
potential Claim, setting out reasonable details as then known to
the Funds, the Investor and the Group. The Investor must also, on
an on-going basis, keep Cordiant UK informed of all material
developments in relation to the matter;
(b) mitigation: take all reasonable steps, and ensure that any
relevant Group Company takes all reasonable steps, to mitigate
any Loss which may give rise to a Claim; and
(c) access: without prejudice to the validity of any Claim, give
Cordiant UK and its advisers reasonable access to:
(1) the employees of any Group Company; and
(2) the documents, records and accounts of the Funds, the
Investor and the Group,
during normal business hours (and permit Cordiant UK and its
advisers to take copies of any documents, records or accounts) to
enable Cordiant UK and its advisers to obtain information
relating to the Claim or potential Claim.
5.2 Conduct of Claims
(a) Following receipt of a notice under clause 5.1(a) which involves
a Third Party Claim, Cordiant UK may, by written notice to the
Investor, assume the conduct of the defence of the Third Party
Claim.
27
(b) The Funds and the Investor must ensure that the Funds, the
Investor and each member of the Group:
(1) does not accept, compromise or pay any claim or demand,
agree to arbitrate, compromise or settle any legal
proceedings or make any admission or take any action, which
may in any way prejudice the defence or challenge of the
Third Party Claim without Cordiant UK's prior written
approval (which approval may not be unreasonably withheld or
delayed);
(2) takes any action, executes any documents and provides any
assistance Cordiant UK reasonably requires to avoid,
contest, compromise or defend any claim, demand or legal
proceedings relating to the Third Party Claim, including
providing witnesses and documentary or other evidence and
allowing Cordiant UK and its advisers to inspect and take
copies of all relevant documents, records and accounts.
(c) Cordiant UK is not liable to the Investor for any Claim in
respect of which the Funds or the Investor do not comply with
this clause 5.2.
5.3 Access to information
The Investor must give to Cordiant UK and its advisers reasonable
access to documents, records and accounts of the Group, during normal
business hours (and permit Cordiant UK and its advisers to take copies
of any documents, records or accounts) in respect of any period, any
part of which is before the Completion Date, where Cordiant UK
requires such information to complete any Tax return or lodge any
document with a Governmental Agency. The Investor must procure (to the
extent that they are able) that the Group provides to Cordiant UK all
such assistance and access as the Investor commits to provide under
this clause 5.3.
6 Announcements
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6.1 Legal requirements
A party may disclose anything in respect of this agreement as
required:
(a) by applicable law; or
(b) by the requirements of any recognised stock exchange on which its
shares or the shares of any Related Corporation are listed;
but to the extent possible, it must consult with the other parties
before making the disclosure and use reasonable endeavours to agree on
the form and content of the disclosure.
6.2 Disclosure to officers and professional advisers
A party may disclose anything in respect of this agreement to the
officers, employees, consultants, advisers and financiers of that
party and its Related Corporations but it must use its best endeavours
to ensure all matters disclosed are kept confidential.
28
6.3 Further publicity
Subject to clauses 6.1 and 6.2:
(a) no party may disclose the provisions of this agreement unless the
other parties have first consented in writing; and
(b) each party must ensure that its directors, officers, employees,
agents and advisers comply in all respects with this clause 6.
6.4 Agreed announcement
After this agreement has been signed, the parties must make an
announcement to the media in a form agreed between them, it
being agreed that the announcement will be made to coincide
with the opening of the London Stock Exchange on the first
Business Day following signing of this agreement and not
before such time.
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7 Duties, costs and expenses
7.1 Duties
(a) Subject to clause 7.1(c), the Funds, the Trust and the Managers
must pay any Duty in respect of the execution, delivery and
performance of:
(1) this agreement;
(2) any Transaction Document; and
(3) any agreement or document entered into or signed under this
agreement or any other Transaction Document.
(b) Subject to clause 7.1(c), the Funds, the Trust and the Managers
indemnify the Investor and the Cordiant Parties for any Loss
suffered or incurred by the Investor or a Cordiant Party as a
consequence of a failure by the Funds to pay any Duty in respect
of:
(1) this agreement;
(2) any Transaction Document; and
(3) any agreement or document entered into or signed under this
agreement or any other Transaction Document.
(c) The obligations on the Funds, the Trust and the Managers pursuant
to clause 7.1(a) and 7.1(b) do not extend to any Duty payable in
respect of any of the steps taken under the Reorganisation
Agenda, in respect of the transactions taken under the
Reorganisation Agreements or in respect of any transactions taken
under the MarketForce Proceeds Agreement.
7.2 Costs and expenses
(a) At Completion, the Investor must pay the reasonable costs,
expenses and disbursements which are invoiced by the legal,
accounting and tax advisers of the Funds and Cordiant UK in
respect of the review, negotiation, execution and completion of
any Transaction Document or
29
other agreement or document which is prepared, entered into or
signed in connection with any Transaction Document (up to a
maximum of $1,000,000 in the case of Cordiant UK) except to the
extent that such costs are unusual or unique such as costs in
respect of internal structuring and tax advice which are not
standard deal fees.
(b) At Completion, the Investor must pay the reasonable costs,
expenses and disbursements which are invoiced by the legal
adviser representing the Trust and the Managers collectively in
respect of the review, negotiation, execution and completion of
this agreement except to the extent that such costs, expenses or
disbursements relate to a Manager's individual investment
structuring issues or to a matter specific to an individual
Manager.
(c) Subject to sub-clauses (a) and (b) above, each party must pay its
own costs incurred in connection with and in contemplation of
this agreement.
7.3 Costs of performance
Any action to be taken by a party in performing its obligations under
this agreement must be taken at that party's own cost and expense
unless otherwise provided in this agreement.
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8 GST
8.1 Interpretation
In this clause 8, a word or expression defined in the A New Tax System
(Goods and Services Tax) Xxx 0000 (Cth) has the meaning given to it in
that Act.
8.2 GST gross up
If a party makes a supply under or in connection with this agreement
in respect of which GST is payable, the consideration for the supply
but for the application of this clause 8.2 (GST exclusive
consideration) is increased by an amount equal to the GST exclusive
consideration multiplied by the rate of GST prevailing at the time the
supply is made.
8.3 Reimbursements
If a party must reimburse or indemnify another party for a loss, cost
or expense, the amount to be reimbursed or indemnified is first
reduced by any input tax credit the other party is entitled to for the
loss, cost or expense, and then increased in accordance with clause
8.2.
8.4 Tax Invoice
A party need not make a payment for a taxable supply made under or in
connection with this agreement until it receives a tax invoice for the
supply to which the payment relates.
30
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9 General
9.1 Notices
(a) Any notice or other communication including, but not limited to,
any request, demand, consent or approval, to or by a party to
this agreement:
(1) must be in legible writing and in English addressed as shown
below:
(A) if to Cordiant UK or Cordiant Australia
Address: 0-0 Xxxxxxx Xxxxx, Xxxxxx X0X 0XX, Xxxxxx
Xxxxxxx
Attention: Mr A Xxxxxx
Facsimile: 0011 44 207 706 3820;
Copy to: A Xxxxxx
Freehills
MLC Centre
00-00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Facsimile: (00) 0000 0000
(B) if to the PEP Funds
Address: Level 36, Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Facsimile: (00) 0000 0000
Attention: Xxx Xxxx;
copy to: X. Xxxx
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Facsimile: (00) 0000 0000
(C) if to the Xxxx Funds
Address: 000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxxx Xxxx
Copy to: Ropes & Xxxx
Address: Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx XX 00000
Facsimile: x000 000 0000
Attention: Xxx Xxxxxxxxx
31
(D) if to the Managers to the address set opposite such
persons names in schedule 4;
(E) if to The Communications Group Holdings Pty Ltd
Address: c/- 00 Xxxxxxxx Xxxxxx Xxxxxx, XXX 0000
Facsimile: 02 9778 7585
Attention: Xxx Xxxxx,
Copy to: The PEP Funds, the Xxxx Funds and
Cordiant UK;
(F) if to the Trust
Address: c/- 00 Xxxxxxxx Xxxxxx Xxxxxx, XXX 0000
Facsimile: 02 9778 7585
Attention: Xxx Xxxxx,
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an officer
or under the common seal of the sender;
(3) is regarded as being given by the sender and received by the
addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by facsimile transmission, whether or not legibly
received, 30 minutes after transmitted to the addressee
(as evidenced by a satisfactory transmission report),
but if the delivery or receipt is on a day which is not a
Business Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am on the following Business
Day; and
(4) can be relied upon by the addressee and the addressee is not
liable to any other person for any consequences of that
reliance if the addressee believes it to be genuine, correct
and authorised by the sender.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender within 2 hours after the
transmission is received or regarded as received under clause
9.1(a)(3) and informs the sender that it is not legible.
(c) In this clause 9.1, reference to an addressee includes a
reference to an addressee's officers, agents or employees.
9.2 Governing law and jurisdiction
(a) This agreement is governed by the laws of New South Wales.
(b) Each party irrevocably submits to the non-exclusive jurisdiction
of the courts of New South Wales.
32
9.3 Prohibition or enforceability
(a) Any provision of, or the application of any provision of, this
agreement which is prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of this
agreement, which is void, illegal or unenforceable in any
jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of
the remaining provisions of this agreement in that or any other
jurisdiction.
(c) The application of this clause 9.3 is not limited by any other
provision of this agreement in relation to severability,
prohibition or enforceability.
9.4 Waivers
(a) Waiver of any right, power, authority, discretion or remedy
arising upon a breach of or default under this agreement must be
in writing and signed by the party granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of a right,
power, authority, discretion or remedy arising from a breach of
or default under this agreement, does not result in a waiver of
that right, power, authority, discretion or remedy.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right, power, authority, discretion or remedy
arising from a breach of this agreement or default under this
agreement as constituting a waiver of that right, power,
authority, discretion or remedy.
(d) This clause may not itself be waived except by writing executed
by the party granting the waiver.
9.5 Variation
A variation of any term of this agreement must be in writing and
executed by each of the parties.
9.6 Cumulative rights
The rights, powers, authorities, discretions and remedies arising out
of or under this agreement are cumulative and do not exclude any other
right, power, authority, discretion or remedy of the parties.
9.7 Non-merger and survival of Warranties
(a) Neither the Warranties, nor any other provision of this agreement
merges on Completion.
(b) The Warranties survive Completion of this agreement.
9.8 Survival
Clauses 6, 7 and this clause 9 survive termination of this agreement.
33
9.9 Further assurances
Each party must do all things, and execute all further documents,
necessary to give full effect to this agreement and the transaction
contemplated by this agreement.
9.10 Entire agreement
(a) Other than the letter dated the same date as this agreement,
between PEP and Cordiant UK, in relation to clause 2.1 of this
agreement (Clause 2.1 Letter), this agreement embodies the entire
agreement between the parties with respect to the subject matter
of this agreement and supersedes any prior negotiation,
arrangement, understanding or agreement with respect to the
subject matter or any term of this agreement.
(b) Any statement, representation, term, warranty, condition, promise
or undertaking made, given or agreed to in any prior negotiation,
arrangement, understanding or agreement, other than the
undertakings made in the Clause 2.1 Letter, has no effect except
to the extent expressly set out or incorporated by reference in
this agreement.
9.11 Third party rights
No person other than the Investor, the Company, the Cordiant Parties,
PEP, the Funds, the Trust and the Managers has or is intended to have
any right, power or remedy or derives or is intended to derive any
benefit under this agreement.
9.12 Counterparts
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute 1 instrument.
(c) A party may execute this agreement by signing any counterpart.
9.13 Assignment
None of the parties may assign or transfer, or purport to assign or
transfer, any of its rights or obligations under this agreement,
except that the Investor may, to enable a financial institution (or
any agent or trustee thereof) providing financing or other facilities
to the Investor to enforce its security, assign or transfer any of the
rights or obligations under this agreement to a third party.
9.14 Attorneys
Each of the attorneys executing this agreement states that the
attorney has no notice of the revocation of the power of attorney
appointing that attorney.
34
--------------------------------------------------------------------------------
Schedule 1 - Warranties
In these warranties:
Environment means the physical factors of the surrounds of human
beings including the land, waters, atmosphere, climate, sound, odours,
place, the biological factors of animals and plants and the social
factors of aesthetics.
Environmental Law means a law regulating or otherwise relating to the
Environment including, without limitation, land use, planning,
pollution of the atmosphere, water or land waste, the storage and
handling of chemicals, Hazardous Substances, or any other aspect of
protection of the Environment.
Hazardous Substance means any substance which is or may be, hazardous,
toxic, dangerous or polluting or which is regulated by any
Environmental Law.
For the purpose of this schedule 1 a reference to Group Companies or
Subsidiaries means a Group Company or a Subsidiary other than Blood
Sweat and Tears Creative Communications Pty Ltd, Patts Consulting Pty
Ltd, HMA Blaze Pty Ltd and HMA Blaze (Brisbane) Pty Ltd.
--------------------------------------------------------------------------------
1 Shares and capital
1.1 Title
The Cordiant Parties are the legal and beneficial owners of the shares
set against their name in the table below. The shares in the table
below are the only issued shares in the Company. The Cordiant Parties
hold the following shares:
--------------------------------------------- ----------------------------------------------------
Shareholder Number of Shares
--------------------------------------------- ----------------------------------------------------
Cordiant UK Series A - 29,205,560
--------------------------------------------- ----------------------------------------------------
Cordiant Australia Series A - 8,344,440
--------------------------------------------- ----------------------------------------------------
Cordiant Australia Series B - 12,450,000
--------------------------------------------- ----------------------------------------------------
Cordiant UK Redeemable Preference Shares - 358
--------------------------------------------- ----------------------------------------------------
1.2 Consents
The Cordiant Parties have full power to enter into and perform their
respective obligations under this agreement without the consent of any
other person and free of any pre-emptive rights or rights of first
refusal or any other such rights that may restrict the transfer or
issue of Company Shares to the Investor.
1.3 Fully paid
The shares listed in paragraph 1.1of this schedule 1 are fully paid
and no money is owing in respect of them. The shares listed in
paragraph 1.1 of this schedule 1 are all of the issued shares in the
capital of the Company and were validly issued by the Company.
35
1.4 Issues of other securities
None of the Group Companies is under any obligation to issue or allot,
and no Group Company has granted any person the right to call for the
issue or allotment of any shares or other securities of the relevant
Group Company at any time.
1.5 No legal impediment
The execution, delivery and performance by the Cordiant Parties of
this agreement complies with:
(a) each law, regulation, authorisation, ruling, judgement, order or
decree of any Governmental Agency;
(b) any Security Interest or document which is binding on either of
the Cordiant Parties; and
(c) the constitution or other constituent documents of the Cordiant
Parties.
1.6 Authorisations
The Cordiant Parties have taken all necessary action to authorise the
execution, delivery and performance of this agreement in accordance
with its terms.
1.7 Security Interests
Neither of the Cordiant Parties has, other than as fully disclosed in
the Disclosure Letter, granted or created, or agreed to grant or
create, any Security Interest in respect of the Company Shares being
transferred, bought-back or issued under this agreement.
--------------------------------------------------------------------------------
2 Authority
2.1 Corporate existence
Each Group Company:
(a) has the power to own its assets and carry on its business as it
is now being conducted; and
(b) is registered and validly existing under the laws of its
jurisdiction of incorporation.
2.2 Compliance with constituent documents
As far as Cordiant UK is aware, the business affairs of each Group
Company have been conducted in accordance with the constitution of the
Group Company.
2.3 Directors and shareholders
The directors and shareholders of each Group Company are listed in
Schedule 11 and these reconcile with the statutory records of each
Group Company.
36
2.4 Group Companies
(a) The registered holder and beneficial owner of all of the shares
issued in the capital of each of the Subsidiaries is as set out
in Schedule 11.
(b) The Company has no subsidiaries within the meaning of the
Corporations Act other than the Subsidiaries.
(c) The Company has no interest in the share capital of any company
other than the Subsidiaries.
--------------------------------------------------------------------------------
3 Conduct of Business
3.1 Compliance with law
As far as Cordiant UK is aware, each Group Company has complied with
all applicable laws (whether applicable to the conduct of the
Business, the use of the Properties, the Employees and the other
assets of the Group Companies or in any other manner).
3.2 Authorisations
Each Group Company holds all necessary material Authorisations
required to conduct the Business, use the assets of the Business and
occupy the Properties and has paid all fees due in relation to them
and is not in breach of any conditions under them.
--------------------------------------------------------------------------------
4 Information
(a) Subject to paragraph (b) below, so far as Cordiant UK is aware:
(1) the documents and information contained in the data room
established and made available to the Investor, PEP, the
Funds and their representatives is accurate and not
misleading in any material respect; and
(2) the Company or Cordiant UK has disclosed to the Investor,
PEP or the representatives of any such party all information
relating to the Group that Cordiant UK believes would be
material to a purchaser of the Group.
(b) No warranty is given in connection with, and Cordiant UK
expresses no opinion on, any forecast, projection, estimate or
statement of opinion or belief contained in any document or
information referred to in paragraph 4(a) above (including
without limitation the Management Accounts).
--------------------------------------------------------------------------------
5 Accounts
The Accounts:
37
(a) have been prepared in accordance with the Accounting Standards;
and
(b) show a true and fair view of the financial position and the
assets and liabilities of the entities the subject of the
Accounts at the Accounts Date and of the income, expenses and
results of the operations of such entities for the financial
period ended on the Accounts Date.
--------------------------------------------------------------------------------
6 Position since Accounts Date
In the period between the Accounts Date and the date of this
agreement:
(a) the Business has been conducted in the ordinary course in all
material respects;
(b) the Group has not disposed of any of its assets worth more than
$250,000 except in the ordinary course of business;
(c) the Group has not acquired any assets worth more than $250,000,
except in the ordinary course of business;
(d) no Group Company has engaged any new employee with annual
remuneration exceeding $150,000;
(e) no dividends or bonus issues have been declared, made or paid by
a Group Company;
(f) no Group Company has incurred or undertaken any liabilities or
obligations, except in the ordinary and usual course of business;
(g) except in the ordinary and usual course of business, no Group
Company has borrowed money;
(h) no Group Company has increased or agreed to increase the rate of
remuneration or compensation payable to any of its Key Employees;
(i) the rights attaching to any shares in a Group Company, or any
options issued to acquire shares in a Group Company, have not
altered and no alteration has been made to the capital structure
of a Group Company;
(j) no Group Company has implemented any new accounting or valuation
method for its business, assets, property or rights;
(k) so far as Cordiant UK is aware, no top ten customer (as listed in
document C 13 in the Data Room Documentation) has indicated that
it intends to
(1) cease trading with a Group Company;
(2) materially alter the terms upon which it trades with the
Group Company; and
(l) no loans have been made nor bonuses paid by a Group Company to
employees, nor have any advances or loan money been accepted from
any employees.
38
--------------------------------------------------------------------------------
7 Management Accounts
So far as Cordiant UK is aware, the Management Accounts, in all material
respects have been prepared with reasonable care and attention on a basis
consistent with the management accounts from which the Accounts were
derived and past practices.
--------------------------------------------------------------------------------
8 Commitments
8.1 Agreements
There are no agreements to which a Group Company is a party which are
not in the Data Room:
(a) that are outside the ordinary course of business of a Group
Company; or
(b) that are not on arms length terms.
8.2 Default
So far as Cordiant UK is aware, with respect to each contract material
to the business of a Group Company no party to the contract is in
material default.
8.3 Material Contracts
So far as Cordiant UK is aware, the Data Room Documentation contains
copies of all contracts which are material to the operation of the
Business.
--------------------------------------------------------------------------------
9 Liabilities under asset and other sale agreements
Other than in respect of the obligations set out in the Data Room
Documentation, no Group Company will have any obligations (actual or
contingent) at Completion to:
(a) do any act, matter or thing; or
(b) pay any moneys under any indemnity,
pursuant to any agreement entered into by that Group Company or any
other Group Company before Completion for the sale of any business,
shares or partnership interest.
--------------------------------------------------------------------------------
10 Assets
10.1 Title to assets
Each asset (other than intellectual property assets) disclosed or
reflected in the Accounts (other than assets disposed of since the
Accounts Date) is:
(a) the absolute property of a Group Company; and
(b) in the possession and control of a Group Company.
39
10.2 Security Interests
No Group Company has granted or created, or agreed to grant or create,
any Security Interests in respect of the assets of the Group, except
in the ordinary course of business.
--------------------------------------------------------------------------------
11 Intellectual Property Rights
11.1 Ownership
The Group Companies listed in column 3 of schedule 9 own or have a
right to use all the trademarks and business names listed in column 1
of schedule 9. So far as Cordiant UK is aware, where a Group Company
has required a licence from a third party to use intellectual property
of that party in the Business, such licence has been obtained and the
terms of such licence have been complied with.
11.2 No infringement
So far as Cordiant UK is aware, no third party has alleged in writing
to a Group Company that a Group Company has infringed or is infringing
that party's intellectual property rights.
11.3 Disclosure
So far as Cordiant UK is aware, no material trade secret or
confidential information of a Group Company has been disclosed or made
available to any person except in the ordinary course of business.
11.4 Third Party Rights
No person, other than a Group Company has any right to any of the
intellectual property rights listed in Schedule 9.
11.5 Disclosure
No Group Company is currently involved in any dispute with any third
party in relation to the intellectual property rights listed in
Schedule 9.
11.6 Royalty/Fees
There are no material royalties, licence fees or other similar fees
payable by any Group Company in connection with the use of any
intellectual property rights listed in Schedule 9.
--------------------------------------------------------------------------------
12 Properties
12.1 Company's interest
No Group Company has any interest in land except for its interest in
the Properties.
40
12.2 Occupation
The Company or another Group Company has exclusive occupation and
quiet enjoyment of the Properties and as far as Cordiant UK is aware
holds all easements, rights, interests and privileges necessary or
appropriate for the conduct of the Business on the Properties.
12.3 No notices
No Group Company has received notice from any third party in respect
of any of the Properties:
(a) in respect of the compulsory acquisition or resumption of any
part of any of the Properties; or
(b) asserting that the current use of the Properties breaches the
requirements of any relevant planning scheme; or
(c) which would be likely to have a materially adverse effect on the
use of the Properties in the Business as currently used,
and, so far as Cordiant UK is aware, no proposal has been made
requiring material work to be done or expenditure to be made on or in
respect of any of the Properties.
12.4 No breach
The Company has not received a notice of default in respect of any
Property which remains outstanding and asserts non-compliance with the
lease of that property.
12.5 Disputes
So far as Cordiant UK is aware, no Group Company is a party to any
material disputes, claims or actions relating to any of the
Properties.
12.6 Freehold Properties
No Group Company is the registered holder and/or beneficial owner of
any freehold property.
12.7 Proposed disposal
No Group Company is a party to any outstanding agreement to acquire or
dispose of land or Properties or any interest in land or Properties.
12.8 No breach
In relation to the leases of each of the Properties (Property Leases),
written copies of which have been provided to the Buyer, such Property
Leases are so far as Cordiant UK is aware, complete in all material
aspects and there are no other material agreements, documents or
understandings in relation to the Property Lease.
41
12.9 Termination notice
No lessor under a Property Lease has serviced any notice to terminate
the Property Lease.
12.10 Assignment
Neither Cordiant UK nor any Group Company has agreed to any
assignment, subletting, parting with possession or surrender of a
Property Lease or any part of the property leased.
--------------------------------------------------------------------------------
13 Shareholdings and memberships
13.1 Shareholdings
No Group Company holds a legal or beneficial interest in any shares or
other capital or securities convertible into shares or other capital
in any other company, other than shares in another Group Company.
13.2 Memberships
No Group Company is a member of any joint venture, partnership or
unincorporated association (other than a recognised trade
association).
--------------------------------------------------------------------------------
14 Employees
14.1 Agreements
No Group Company is a party to any agreement with a union or
industrial organisation in respect of its employees.
14.2 Payments made
Each Group Company has paid all amounts due and payable in respect of
its employees other than:
(a) accrued superannuation payments not due; and
(b) accrued payments in the ordinary course of the Business.
14.3 Industrial disputes
No Group Company is currently involved in any material industrial
dispute with any Employee.
As far as Cordiant UK is aware, no Group Company is in breach in any
material respect of any written employment contract with any Employee
at the date of this agreement.
42
14.4 Breach
As far as Cordiant UK is aware, no Group Company is in breach in any
material respect of any employment contract with any Employee at the
date of this agreement.
14.5 Employees
Documents E1, E2 and E4 in the Data Room Documentation contained a
complete list of the Employees as at the 2 March 2003.
14.6 Incentive schemes
No Group Company has agreed to any share incentive scheme, share
option scheme, bonus scheme, profit-sharing scheme or other employee
incentive scheme in respect of the Business or with any Employee which
has not been fairly disclosed to the Investor.
14.7 Management Agreement
No Group Company is a party to a material agreement with any person
for the provision of consulting services in respect of the Business
which provides that such person is entitled to annual remuneration of
more than $150,000.
14.8 Employee Disputes
No Group Company is involved in any material dispute with any employee
or former employee.
14.9 Awards
Except as set out in the Data Room Documentation, there are no awards,
enterprise agreements or other instruments made or approved under law
which apply to employees of the Company.
14.10 Directors
Details of all remuneration arrangements with all directors and
chairmen (executive or non-executive) of all Group Companies have been
fairly disclosed to PEP.
--------------------------------------------------------------------------------
15 Litigation
15.1 Group not a party to any litigation
No Group Company is:
(a) a party to any material investigation, prosecution or litigation;
or
(b) subject to any material investigation by any Government Agency,
in respect of the Business.
43
15.2 No litigation pending or threatened
So far as Cordiant UK is aware, no material investigation, prosecution
or litigation referred to in warranty 15.1 is pending or threatened.
15.3 No circumstances
So far as Cordiant UK is aware, there are no circumstances which in
the opinion of Cordiant UK are likely to give rise to any proceeding
or investigation referred to in Warranty 15.1.
--------------------------------------------------------------------------------
16 Superannuation
All payments in respect of superannuation that the Group is required to pay
in respect of the Employees have been paid.
--------------------------------------------------------------------------------
17 Solvency
17.1 No liquidation or winding-up
No Group Company has gone into liquidation or passed a winding-up
resolution or received a deregistration notice under section 601AB or
applied for deregistration under section 601AA of the Corporations
Act.
17.2 No petition
No petition or other process for winding-up has been presented or
threatened against a Group Company and there are no circumstances
justifying a petition or other process.
17.3 No writ of execution
No writ of execution has issued against a Group Company.
17.4 No receiver
No receiver or receiver and manager of any part of the undertaking or
assets of a Group Company has been appointed.
17.5 Payment of Debts
No Group Company:
(a) has stopped paying its debts as and when they fall due;
(b) is insolvent within the meaning of the Corporations Act; and
(c) is subject to voluntary administration under the Corporations
Act.
44
17.6 Liquidation
No Cordiant Party has gone into liquidation nor been removed from the
companies register.
17.7 Petition
No petition or other process for winding-up has been presented or
threatened against either of the Cordiant Parties and there are no
circumstances justifying such a petition or other process.
17.8 Writ of execution
No writ of execution has issued against either of the Cordiant
Parties.
17.9 Receiver or manager
No receiver or statutory manager of any part of either of the Cordiant
Parties' undertaking or assets has been appointed.
--------------------------------------------------------------------------------
18 Insurance
18.1 Insurance
Complete particulars of all current insurances and cover notes taken
out in respect of the Group have been disclosed to PEP or the
representatives prior to date of this Agreement.
18.2 Claims
There are no outstanding individual or related material claims under
the policies referred to in warranty 18.1.
18.3 Claims
All premiums in respect of the insurances referred to in warranty 18.1
will have been paid prior to the Completion Date.
--------------------------------------------------------------------------------
19 Power of Attorney, offers and finder's fees
19.1 Power of Attorney and offers
(a) No power of attorney given by a Group Company will be in force
after Completion.
(b) Any offer, tender or quotation made or given by a Group Company
which is outstanding and capable of acceptance by a third party,
was made or given in the ordinary course of business.
45
19.2 Finder's Fees
None of Cordiant UK, a Group Company and any Related Corporation of
Cordiant UK or of a Group Company has taken any action under which any
person is or may be entitled to a finder's fee, brokerage or
commission in connection with the acquisition of any shares under this
agreement.
--------------------------------------------------------------------------------
20 Environment
So far as Cordiant UK is aware, no Group Company has received
written notice that the Properties are:
(a) subject to any order or notice issued under any Environmental
Law; or
(b) the subject of any charge in favour of any relevant environmental
protection authority as security for the clean-up or other costs
under any relevant Environmental Law.
--------------------------------------------------------------------------------
21 Tax
21.1 Records
Each Company has maintained proper and adequate records to enable it
to comply with its obligations to:
(a) prepare and submit any information, notices, computations,
returns, declarations, elections and payments required in respect
of any Tax Law;
(b) prepare any accounts necessary for the compliance of any Tax Law;
and
(c) retain necessary records as required by any Tax Law.
21.2 Returns submitted
Each Group Company has submitted any necessary information, notices,
computations, returns, declarations and elections to the relevant
Government Agency in respect of any Tax relating to that Group
Company.
21.3 Returns accurate
Any information, notice, computation, return, declaration or election
which has been submitted by any Group Company to a Governmental Agency
in respect of any Tax or Duty:
(a) discloses any material facts that should be disclosed under any
Tax Law; and
(b) has been submitted on time.
21.4 No Tax Audit
Cordiant UK is not aware of any pending or threatened Tax or Duty
audit relating to a Group Company.
46
21.5 No disputes
No Group Company is currently engaged in any dispute with any
Governmental Agency in respect of any Tax or Duty.
47
--------------------------------------------------------------------------------
Schedule 2 - Investor Share Subscriptions
Investor Shares Aggregate Subscription
Subscriber Price
TCG Nominee Pty Limited as trustee of the TCG Trust 4,425,000 $4,425,000
Xxxx Pacific Associates, LLC 13,011,286 $13,011,286
BCIP Associates II 664,821 $664,821
BCIP Associates II-B 115,144 $115,144
Pacific Equity Partners Fund I Pty Limited 1,892,332 $1,892,332
Pacific Equity Partners (NZ) Limited 398,337 $398,337
PEP Co-Investment Pty Limited 80,125 $80,125
PEP Investment Pty Limited 62,956 $62,956
$20,650,001
48
--------------------------------------------------------------------------------
Schedule 3 - Managers
Xxx Xxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxxx
49
--------------------------------------------------------------------------------
Schedule 4 - Address details for Managers
The address for each Manager will be, unless such Manager
notifies all parties in writing of an alternative address:
Address: c/- 00 Xxxxxxxx Xxxxxx, Xxxxxx, XXX, 0000
Facsimile: (00) 0000 0000
50
--------------------------------------------------------------------------------
Schedule 5 - Key Employees
(1) Xxxxxxx Xxxxxxx
(2) Xxxx Xxxxxxxx
(3) Xxxxxxx Xxxxxxxx
(4) Xxxxxx Xxxxxxx
(5) Xxxx Xxxxxxx
(6) Xxxx Xxxxx
(7) Xxxxx Xxxxxxxxx
(8) Xxxxx Xxxxxxxx
(9) Xxxxx Xxxxxx
(10) Xxxxx Xxxxxxxxx
(11) Xxxxxxx Xxxxx
(12) Xxxxxxx Xxxxx
(13) Xxxxx Bridge
(14) Xxxxxxx Xxx
(15) Xxxxx Xxxx
(16) Xxxxx Xxxxxxxx
(17) Xxx Xxxxx
(18) Xxxxxx Xxxxx
(19) Xxxx Xxxxxxx
(20) Xxxxxxx Xxxxxx
(21) Xxxxx Xxxx
(22) Xxxx Xxxxxx
(23) Xxx Xxxxxx
(24) Xxxx Xxxxx
(25) Xxxxx Xxxxx
(26) Xxx Xxxxxxxxx
(27) Xxxxxx Xxxxx
(28) Xxxxxx Xxxxxxx
(29) Xxxxx Xxxxxxx
51
--------------------------------------------------------------------------------
Schedule 6 - Subsidiaries
(1) Xxxxxx Xxxxxxxxx Pty Ltd
(2) Patts Beyond Pty Ltd (not wholly owned)
(3) Zenith Media Pty Ltd
(4) Patts Marketing Services Pty Limited
(5) Expanded Media Holdings Pty Ltd
(6) Blood Sweat and Tears Creative Communications Pty Ltd (not wholly
owned)
(7) Razor TV Pty Ltd
(8) Big Island International Pty Ltd (not wholly owned)
(9) Navigator Tourism Communications Pty Ltd
(10) Consensus Research Pty Ltd
(11) The Direct Bond Pty Ltd
(12) XMPS Holdings Pty Ltd
(13) Healthworld Communications Group Pty Ltd
(14) Expanded Media Investments Pty Ltd
(15) Global Scan Pty Ltd
(16) Xxxxxx Xxxxxxxxx Properties Pty Ltd
(17) Isis Design Pty Ltd
(18) Xxxxxxxx House Pty Ltd
(19) Advertising Facilities Pty Ltd
(20) Retail One Pty Ltd
(21) Adtown Pty Ltd
(22) Xxxxxx Xxxxxxxxx (Brisbane) Pty Ltd
(23) Social Shift Pty Ltd
(24) Xxxxxx Xxxxxxxxx (Sydney) Pty Ltd
(25) Xxxxxx Xxxxxxxxx Nominees Pty Ltd
(26) Expanded Investments (WA) Pty Ltd
(27) HMA Blaze Pty Ltd (not wholly owned)
(28) HMA Blaze (Brisbane) Pty Ltd (not wholly owned)
(29) Patts Consulting Pty Ltd (not wholly owned)
(30) PR Dynamics Australia Pty Ltd
(31) Patts CRM Pty Ltd
(32) Underline:Fitch Pty Ltd
(33) Professional Public Relations Pty Ltd (not wholly owned)
52
(34) Phoenix Public Relations Pty Ltd
(35) Professional Public Relations NZ Holdings Ltd (not wholly owned)
(36) Professional Public Relations NZ Ltd (not wholly owned)
(37) PR Dynamics Limited (not wholly owned)
(38) Diem Pty Ltd
(39) X/M Pty Ltd
(40) The Communications Group Limited
(41) Vision Splendid Media Pty Limited (not wholly owned)
(42) The Media Palace Limited
53
--------------------------------------------------------------------------------
Schedule 7 - The Funds' Warranties
--------------------------------------------------------------------------------
1 Authority
1.1 Authorisation and capacity
(a) The Funds have taken all necessary action to authorise the
execution and performance of each Transaction Document to which
they are a party.
(b) The Funds have the power to enter into and perform their
obligations under each Transaction Document and can do so without
the consent of any other person.
1.2 No legal impediment
The execution, delivery and performance by the Funds of each
Transaction Document complies with:
(a) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency; and
(b) the constitution or other constituent documents of the Funds.
--------------------------------------------------------------------------------
2 The Investor
2.1 Existence
The Investor:
(a) has the power to own its assets and carry on its business as it
is now being conducted; and
(b) is registered and validly existing under the laws of its
jurisdiction of incorporation and is not required to be
registered in any place.
2.2 Activity
The Investor has not traded. The Investor has no debts, liabilities or
obligations to any party.
2.3 Share structure
(a) The sole shareholder of the Investor is Pacific Equity Partners
Pty Ltd. The Investor has issued one Investor Share to Pacific
Equity Partners Pty Ltd.
(b) The Investor is not under an obligation to issue or has granted
any person the right to call for the issue of any shares or other
securities of the Investor.
54
--------------------------------------------------------------------------------
Schedule 8 - Properties
(1) Xxxxxx Xxxxxxxxx Pty Limited - lease for levels 10 - 16, 00 Xxxxxxxx
Xxxxxx, Xxxxxx.
(2) Professional Public Relations Pty Limited - lease of premises at Xxxxxxx
Street, Bathurst.
(3) Xxxxxx Xxxxxxxxx Pty Limited - lease for premises at 000-000 Xxxxxxx Xxxxxx
Xxxxxxxxx.
(4) Xxxxxx Xxxxxxxxx Proprietary Limited - lease for Xxxxx 0 Xxxxxxx Xxxxx,
Xxxxxxxx.
(5) HMA Blaze Pty Limited - lease for premises at 000-000 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxxxxx.
(6) Zenith Media Pty Limited - lease for premises at 000 Xxxxxxx Xx Xxxxxxxxx.
(7) Professional Public Relations New Zealand Limited - lease for premises at
Xxxx 00 Xxxxxxxx 00, Xxxxxxxxx Xxxxx, Xxxxxxxxx.
(8) Professional Public Relations Pty Ltd - Sub-lease for 00-00 Xxxxxx Xxxxxx,
Xxxxxxxx XXX.
(9) Zenith Media Pty Limited - leases for levels 1,2,3,4,5 and 6 at 000 Xxxxx
Xxxxxx, Xxxxx Xxxxxx.
(10) Professional Public Relations Pty Limited - lease for 000 Xxxxxxxx Xxxx,
Xxxxxxx.
(11) Direct Decisions Pty Limited - lease for units 14-15, 000-000 Xxxxxxxx
Xxxx, Xxxxxxx Xxx.
(12) Xxxxx New Zealand Limited - lease of premises at Viaduct Quay.
(13) Zenith Media Pty Limited - lease for 0000/00 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx.
(14) Zenith Media Pty Limited - lease for level 0 Xxxxxxx Xxxxx, Xxxxxxxx.
55
--------------------------------------------------------------------------------
Schedule 9 - Business Names and Trade Marks
Business Names
Business Name State User of Business Name
Adtown VIC Xxxxxx Xxxxxxxxx Pty Limited
Adtown WA Xxxxxx Xxxxxxxxx Pty Limited
Adtown QLD Xxxxxx Xxxxxxxxx Pty Limited
Australia Media Exchange NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx Media Exchange NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx One-on-One NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx One-on-One VIC Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx One-on-One QLD Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx One-to-One NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx One-to-One VIC Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx One-to-One QLD Xxxxxx Xxxxxxxxx Pty Limited
Xxxxx World Media Exchange NSW Xxxxxx Xxxxxxxxx Pty Limited
Batesmediabroker NSW Xxxxxx Xxxxxxxxx Pty Limited
Batesmediadirect NSW Xxxxxx Xxxxxxxxx Pty Limited
Channel Xtasy NSW Xxxxxx Xxxxxxxxx Pty Limited
Channel Xtasy VIC Xxxxxx Xxxxxxxxx Pty Limited
Commsbuy NSW Xxxxxx Xxxxxxxxx Pty Limited
Data Harvest VIC Xxxxxx Xxxxxxxxx Pty Limited
Data Harvest NSW Xxxxxx Xxxxxxxxx Pty Limited
Design Decisions VIC Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Interactive NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Xxxxxxxxx Advertising NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Xxxxxxxxx Xxxxx NSW Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Xxxxxxxxx Xxxxx QLD Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Xxxxxxxxx Xxxxx XXX Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Xxxxxxxxx Xxxxx WA Xxxxxx Xxxxxxxxx Pty Limited
Xxxxxx Xxxxxxxxx Media Exchange NSW Xxxxxx Xxxxxxxxx Pty Limited
56
Business Name State User of Business Name
Healthcom VIC Xxxxxx Xxxxxxxxx Pty Limited
IGeorge NSW Xxxxxx Xxxxxxxxx Pty Limited
Interactive Decisions VIC Xxxxxx Xxxxxxxxx Pty Limited
Interactive Decisions QLD Xxxxxx Xxxxxxxxx Pty Limited
Interactive Decisions NSW Xxxxxx Xxxxxxxxx Pty Limited
Interactive Decisions WA Xxxxxx Xxxxxxxxx Pty Limited
Mediabroker NSW Xxxxxx Xxxxxxxxx Pty Limited
Mediatrader Sales NSW Xxxxxx Xxxxxxxxx Pty Limited
Navigator Tourism + Sport Communications NSW Xxxxxx Xxxxxxxxx Pty Limited
Navigator Tourism + Sport Communications VIC Xxxxxx Xxxxxxxxx Pty Limited
Navigator Tourism + Sport Communications WA Xxxxxx Xxxxxxxxx Pty Limited
National Media Exchange NSW Xxxxxx Xxxxxxxxx Pty Limited
Navigator Tourism Communications NSW Xxxxxx Xxxxxxxxx Pty Limited
Navigator Tourism Communications WA Xxxxxx Xxxxxxxxx Pty Limited
Patts Advertising NSW Xxxxxx Xxxxxxxxx Pty Limited
Pattsmediabroker NSW Xxxxxx Xxxxxxxxx Pty Limited
Pattsmediadirect NSW Xxxxxx Xxxxxxxxx Pty Limited
Pareto Consulting VIC Xxxxxx Xxxxxxxxx Pty Limited
Pareto Direct VIC Xxxxxx Xxxxxxxxx Pty Limited
Planet Patts NSW Xxxxxx Xxxxxxxxx Pty Limited
PR Dynamics VIC Phoenix Public Relations Pty Limited
PR Dynamics NSW Phoenix Public Relations Pty Limited
Quickmedia NSW Xxxxxx Xxxxxxxxx Pty Limited
Recruitment Decisions VIC Xxxxxx Xxxxxxxxx Pty Limited
Retainment NSW Xxxxxx Xxxxxxxxx Pty Limited
Return on Imagination NSW Xxxxxx Xxxxxxxxx Pty Limited
Razor Casting QLD Razor TV Pty Limited
Razor Casting NSW Razor TV Pty Limited
Razor iTV VIC Razor TV Pty Limited
57
Business Name State User of Business Name
Razor iTV QLD Razor TV Pty Limited
Storeview NSW Xxxxxx Xxxxxxxxx Pty Limited
Womb Communications NSW Xxxxxx Xxxxxxxxx Pty Limited
World Media Exchange NSW Xxxxxx Xxxxxxxxx Pty Limited
X/M Wireless NSW X/M Pty Ltd
Zenith Media VIC Zenith Media Pty Limited
Zenith Media OLD Zenith Media Pty Limited
Zenith Media NSW Zenith Media Pty Limited
Zenith Interactive Solutions NSW Zenith Media Pty Limited (not renewed)
000 Xxxxxxxxxxxx XX Expanded Media Holding Pty Limited
141 Communicator VIC Expanded Media Holding Pty Limited
141 Communicator OLD Expanded Media Holding Pty Limited
141 Communicator NSW Expanded Media Holding Pty Limited
141 NSW Cordiant Consulting Pty Limited
Trade Marks
Trade Xxxx Country Trade Xxxx User
Adtown Australia Xxxxxx Xxxxxxxxx Pty Ltd
Brandaction Australia Xxxxxx Xxxxxxxxx Pty Ltd
Brand Essence Australia Xxxxxx Xxxxxxxxx Pty Ltd
Competitive Opportunity Units Australia Xxxxxx Xxxxxxxxx Pty Ltd
COU's Australia Xxxxxx Xxxxxxxxx Pty Ltd
Connect and Convert Australia Xxxxxx Xxxxxxxxx Pty Ltd
Creative Opportunity Units Australia Xxxxxx Xxxxxxxxx Pty Ltd
Creative Service Integrity Australia Xxxxxx Xxxxxxxxx Pty Ltd
DUC & Platypus Logo Australia Xxxxxx Xxxxxxxxx Pty Ltd
Xxxxxx Xxxxxxxxx Australia Xxxxxx Xxxxxxxxx Pty Ltd
Glass Pockets Australia Xxxxxx Xxxxxxxxx Pty Ltd
Health World Australia Xxxxxx Xxxxxxxxx Pty Ltd
Inside Track Australia Xxxxxx Xxxxxxxxx Pty Ltd
Intread Australia Xxxxxx Xxxxxxxxx Pty Ltd
Mentor Australia Xxxxxx Xxxxxxxxx Pty Ltd
Patts Australia Xxxxxx Xxxxxxxxx Pty Ltd
58
Trade Xxxx Country Trade Xxxx User
Patts Optimiser Australia Xxxxxx Xxxxxxxxx Pty Ltd
Patts Partnership Programme Australia Xxxxxx Xxxxxxxxx Pty Ltd
Powerful Results by Xxxxxx Australia Xxxxxx Xxxxxxxxx Pty Ltd
Return on Imagination Australia Xxxxxx Xxxxxxxxx Pty Ltd
Storeview Australia Xxxxxx Xxxxxxxxx Pty Ltd
XM Australia Xxxxxx Xxxxxxxxx Pty Ltd
20/20 Vision for Australia Australia Xxxxxx Xxxxxxxxx Pty Ltd
Adtown New Zealand Xxxxxx Xxxxxxxxx Pty Ltd
Direct Decisions Australia Big Island International Pty Limited
Realised (Strategy & Technology) Australia X/M Pty Limited
----------------------
Economic = Quality
Value
Responsebank Australia Xxxxxx Xxxxxxxxx Pty Ltd
59
--------------------------------------------------------------------------------
Schedule 10 - Cordiant UK Knowledge Enquiries
The following enquiries were taken by the persons listed in clause 4.3
in relation to the due diligence exercise undertaken by PEP, on behalf
of the Funds:
(a) the persons listed in clause 4.3(e), (f) and (g) placed documents
into the Data Room in response to specific questions from PEP and
then in response to more general questions from PEP and its
advisers;
(b) the Warranties were circulated to the individuals listed in
clause 4.3. Each such person was asked to indicate if they were
aware of any fact, matter or thing that would make a Warranty
untrue;
(c) a draft Disclosure Letter was prepared on the basis of the
responses received to that question;
(d) the draft Disclosure Letter was circulated to the persons listed
in clause 4.3. After receiving comments on the draft letter, the
Disclosure Letter was finalised.
60
--------------------------------------------------------------------------------
Schedule 11 - Directors and Shareholders
The Cordiant group of companies: details of directors and secretaries
Company Directors Secretary
Xxxxxx Xxxxxxxxx Pty Limited Xxxxxx Xxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxx Xxxxx
Xxxx Xxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxxxx
Zenith Media Pty Limited Xxxxx Xxxxxxxx Xxxxxxx Xxx
Xxx Xxxxx Xxxxx Bridge
Xxxxxxx Xxx
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxx Xxxxxxx
Cordiant Communications Group Australia Pty Xxxxxxx Xxxxxx Xxxxx Xxxxxx
Ltd Xxx Xxxxx Xxxxx Bridge
Xxxxx Xxxxxx
Expanded Media Holdings Pty Limited Xxxxx Xxxxxx Xxxxx Xxxxxx
Xxx Xxxxx
Xxxxx Bridge
Professional Public Relations Pty Limited Xxx Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx Xxxxx
Consensus Research Pty Ltd Xxxxx Xxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxxxxx
Patts Consulting Pty Ltd Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxxxx
Expanded Media Investments Pty Limited Xxxxx Xxxxxx Xxxxx Xxxxxx
Xxx Xxxxx
Xxxxx CRM Pty Limited Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx
Blood Sweat and Tears Creative Communications Xxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx
Pty Limited Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx Xxxxxxxx
Navigator Tourism Communications Pty Limited Xxxxx Bridge Not appointed
Xxxxx Xxxxxx
XMPS Holdings Pty Limited Xxxxx Bridge Xxxxx Xxxxxx
Xxxxx Xxxxxx
61
Company Directors Secretary
Razor TV Pty Limited Xxxxx Xxxxxx Xxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxx Bridge
Xxxxx Xxxxxxxx
Advertising Facilities Pty Limited Xxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Adtown Pty Limited Xxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Retail One Pty Limited Xxxxxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Isis Design Pty Limited Xxxxx Xxxxxx Xxxxx Xxxxxxxx
Xxx Xxxxx
Xxxxxx Xxxxxxxxx Properties Pty Limited Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Xxx Xxxxx
Xxxxxx Xxxxxxxxx (Brisbane) Pty Limited Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Xxx Xxxxx
Xxxxxx Xxxxxxxxx Nominees Pty Limited Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Xxx Xxxxx
Xxxxxxxx House Pty Limited Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Xxx Xxxxx
Global Scan Pty Limited Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Xxx Xxxxx
Social Shift Pty Limited Xxxxxxx Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxx
Xxx Xxxxx
Xxxxx Bridge
Xxxxxx Xxxxxxxxx (Sydney) Pty Limited Xxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Expanded Investments (WA) Pty Ltd Xxxxx Xxxxxx Xxxxx Xxxxxx
Xxxxx Bridge
Cordiant Consulting Pty Limited Xxxxx Bridge Xxxxx Bridge
Xxxxx Xxxxxx
Xxxx Xxxxx
Underline:Fitch Pty Limited Xxxx Xxxxxx Xxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
62
Company Directors Secretary
Big Island International Pty Limited Xxxxxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Bridge
Healthworld Communications Group Pty Limited Xxxxx Xxxxxx Xxx Xxxxxx
Xxxxx Bridge
HMA Blaze (Brisbane) Pty Ltd Xxxxxxxxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx
HMA Blaze Pty Limited Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
PR Dynamics Australia Pty Ltd Xxxxxxx Xxxxx Not appointed
Xxxxx Xxxxxxx
Diem Pty Limited Xxxxx Bridge Xxxxx Xxxxxx
Xxx Xxxxx
Xxxxx Xxxxxx
Phoenix Public Relations Pty Limited Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Patts Beyond Pty Limited Xxxxxx Xxxxxxxx Xxxxx Xxxxxx
Xxxxx Bridge
Xxx Xxxxxxx
Xxx Xxxxxx
X/M Pty Limited Xxxxx Bridge Xxxxx Bridge
Xxx Xxxxx
The Direct Bond Xxx Xxxxxxx Xxxxx Bridge
Xxx Xxxxx
Professional Public Relations NZ Holdings Xxxxxxx Xxxxx
Limited
Professional Public Relations NZ Limited Xxxxxxx Xxxxx
Xxxxx Xxxxx
PR Dynamics Limited Xxxxxxx Xxxxx
The Communications Group Limited Xxxxxx Xxxxxx
Xxxxxx Xxxxx
63
Summary of the Registers of Members of Cordiant Communications Group Australia
Pty Limited and its subsidiaries which are being sold
Company Register
Xxxxxx Xxxxxxxxx Pty Limited Cordiant Communications Group Australia Pty Ltd:
o 2,880 class A shares
o 592,416 class B shares
o 2,369,664 class C shares
o 2,880 class D shares
o 5,049,503 non-cumulative redeemable preference shares
Last updated on 30 November 1995
Zenith Media Pty Limited Cordiant Communications Group Australia Pty Ltd:
o 502 ordinary shares
o 1,000 redeemable preference shares
Last updated on 3 November 1997
Cordiant Communications Group Australia Pty Cordiant Communications (Australia) Pty Ltd:
Ltd o 8,344,440 class A shares
Cordiant Communications Group plc:
o 29,205,560 class A shares
Cordiant Communications (Australia) Pty Ltd:
o 12,450,000 class B Shares
Cordiant Communications Group plc:
o 358 non-cumulative redeemable preference shares
Expanded Media Holdings Pty Limited Cordiant Communications Group Australia Pty Ltd:
o 2 ordinary shares
Last updated on 5 February 1996
Professional Public Relations Pty Limited Xxxxxxx Xxxxx:
o 3750 ordinary shares
Expanded Media Holdings Pty Limited:
o 21,250 ordinary shares
Consensus Research Pty Ltd Expanded Media Holdings Pty Limited:
o 101 ordinary shares
Last updated on 31 December 1997
Patts Consulting Pty Limited Pathfinder Strategies Pty Limited:
o 49 ordinary shares
XMPS Holdings Pty Ltd:
o 51 ordinary shares
Last updated on 18 March 1998
Expanded Media Investments Pty Limited Expanded Media Holdings Pty Ltd:
o 2 ordinary shares
Last updated on 7 June 0000
Xxxxx XXX Pty Limited Expanded Media Holdings Pty Limited:
o 2 ordinary shares
Last updated on 30 April 1996
64
Company Register
The Direct Bond Pty Limited Expanded Media Holdings Pty Ltd:
o 200,000 ordinary
Blood Sweat and Tears Creative Communications Xxxx Xxxxxx Xxxxxxxxx:
Pty Limited o 31 class A shares
Xxxxx Xxxxxxxx:
o 20 class A shares
Cordiant Communications Group Australia Pty Limited:
o 49 class B shares
Navigator Tourism Communications Pty Limited Expanded Media Holdings Pty Limited:
o 2 ordinary shares
Last updated on 23 December 1996
DIEM Pty Limited X/M Pty Limited:
o 12 ordinary shares
Last updated on 29 July 1997
XMPS Holdings Pty Limited Expanded Media Holdings Pty Limited:
o 2 ordinary shares
Last updated on 5 February 1996
Razor TV Pty Limited Cordiant Communications Group Australia Pty Limited:
o 75,000 ordinary shares
Last updated on 30 November 1995
Advertising Facilities Pty Limited Xxxxxxxx House Pty Limited:
o 1,800 class A shares
o 1,200 class B shares
Last updated on 30 November 1995
Adtown Pty Limited Xxxxxxxx House Pty Limited:
o 1 ordinary share
Last updated on 19 December 1996
Retail One Pty Limited Xxxxxxxx House Pty Limited:
o 2 ordinary shares
Last updated on 3 July 1997
Isis Design Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 2 ordinary shares
Last updated on 12 November 1997
Xxxxxx Xxxxxxxxx Properties Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 2 ordinary shares
Last updated on 30 November 1995
Xxxxxx Xxxxxxxxx (Brisbane) Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 2 ordinary shares
o 11,000 class A shares
o 10,600 class B shares
o 200 class C shares
Last updated on 30 November 1995
Xxxxxx Xxxxxxxxx Nominees Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 2 ordinary shares
Last updated on 30 November 1995
65
Company Register
Xxxxxxxx House Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 502 ordinary shares
Last updated on 30 November 1995
Global Scan Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 2 ordinary shares
Last updated on 30 November 1995
Social Shift Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 10,000 ordinary shares
Last updated on 30 November 1995
Xxxxxx Xxxxxxxxx (Sydney) Pty Limited Xxxxxx Xxxxxxxxx Pty Limited:
o 10,000 ordinary shares
Last updated on 30 November 1995
Expanded Investments (WA) Pty Ltd Expanded Media Investments Pty Ltd:
o 2 ordinary shares
Last updated on 6 December 2000
Patts Marketing Services Pty Limited Cordiant Communications Group Australia Pty Limited:
o 1 ordinary share
Last updated on 11 July 2001
Underline:Fitch Pty Limited Expanded Media Holdings Pty Ltd:
o 510 A class shares:
Expanded Media Holdings Pty Ltd:
o 490 B class shares
Big Island International Pty Limited Expanded Media Holdings Pty Limited:
ACN 009 834 968 o 850 ordinary shares
Xxxx Xxxxxxx
o 150 ordinary shares
Healthworld Communications Group Pty Limited Expanded Media Holdings Pty
Limited - 249 redeemable
preferences - 2500 ordinary
shares as at 5 December 2002
HMA Blaze (Brisbane) Pty Limited HMA Blaze Pty Limited:
o 200,000 CAPR shares
o 1,000 ordinary shares
HMA Blaze Pty Limited Expanded Media Investments Pty Limited
o 325,325 'A' class
Xxxxxxxxx Xxxxx Xxxxx
o 65,050 'B' class
Xxxxxxx Xxxx Xxxxxx
o 94,164 'B' class
Xxxxxxx Xxxxxxx Xxxxxxx
o 94,164 'B' class
Xxxx Xxxxxxxx
o 55,681 'B' class
R&N Xxxxxx Family Trust
o 16,266 'B' class
66
Company Register
PR Dynamics Australia Pty Ltd Expanded Media Holdings Pty Limited:
o 1 ordinary share
Last updated on 30 July 2001
Phoenix Public Relations Pty Limited Expanded Media Holdings Pty Limited:
o 2 ordinary shares
Patts Beyond Pty Limited Beyond International Limited:
1 share
Cordiant Communications Group Australia Pty Limited:
1 share
PR Dynamics Limited Professional Public Relations NZ Holdings Limited:
100 shares
Professional Public Relations NZ Holdings Professional Public Relations Pty Limited:
Limited 100 shares
Professional Public Relations NZ Limited Professional Public Relations NZ Holdings Limited:
12,000 shares
The Media Palace Limited The Communications Group Limited:
100 shares
The Communications Group Limited Cordiant Communications Group Australia Pty Ltd:
o 1,800,000 shares
X/M Pty Limited Cordiant Communications Group Australia Pty Ltd:
o 1000 class A shares; and
o 1000 class B shares.
Vision Splendid Media Pty Limited Xxxx Productions Pty Limited
o 70 shares
Professional Public Relations Pty Limited
o 30 shares
67
--------------------------------------------------------------------------------
Schedule 12 - Closing Mechanism
Definitions
Auditors means PricewaterhouseCoopers in their capacity as auditors of
the Investor
Cash Item means, without double counting, any item in the Completion
Accounts that constitutes cash or creates, removes, increases or
decreases an obligation to pay or a right to receive an amount of
money in cash or is the result of a cash transaction or declaration of
dividend (in cash, not in kind), including without limitation:
(c) net profits after tax (excluding amortisation expenses);
(d) those items listed at numbers: 3, 5-10, 11, 12 and 14 in Schedule
A, to the extent any such item constitutes an actual liability;
(e) the item listed at number 4 in Schedule A, to the extent such
item constitutes a tax liability or relates to a non-trade
creditor.
For the avoidance of doubt, 'Cash Items' do not include:
(1) movements in cash due to movements in trade working capital
including, without limitation, trade creditors, prepayments, WIP,
or trade debtors; or
(2) fees and expenses relating to the Transaction.
Completion Accounts means the consolidated balance sheet, profit and
loss statement and statement of cash flows of the Consolidated Group
as at the Completion Date, which, for the avoidance of doubt, will
reflect the impact of the steps set out in the Reorganisation Agenda.
Completion NTA means the value of the net tangible assets of the
Consolidated Group as at the Completion Date, as recorded on the
Completion NTA Statement.
Completion NTA Statement means the statement prepared in accordance
with clause 1.1(c), as finalised in accordance with clauses 1.3 and
1.4 (if applicable).
Consolidated Group means the entities which comprise the Group at the
Completion Date consolidated for accounting purposes, following the
steps set out in the Reorganisation Agenda.
Escrow Account means the interest bearing deposit account nominated by
the Escrow Agent to hold the Escrow Amount.
Escrow Account Letter means the letter governing the funds held in the
Escrow Account in the form attached as Annexure M.
Escrow Agent means Xxxxxx Xxxxxxx.
Escrow Amount means the amount (if any) referred to in clause 1.2(c).
Estimated NTA means - $31,165,000 (such amount a negative number),
being the value of the net tangible assets of the Group as at 31 March
2003 derived from the March Management Accounts, reflecting the impact
of the items set out in
68
Schedule A and for the avoidance of doubt, reflecting the impact of
the steps in the Reorganisation Agenda.
Independent Accountant means the accounting firm, Ernst & Young or, if
the appointment is not accepted by Ernst & Young, a top tier
Australian firm independent of and agreed by Cordiant UK and PEP.
Payment Date means the day which is 5 Business Days after the date the
Completion NTA Statement is agreed or finally determined pursuant to
clauses 1.3 and 1.4 (if applicable).
Trade Sale, Listing and Share Capital have the meaning given to such
terms in the Shareholders Agreement.
Clause
1. Completion Audit
1.1 Audit
The Funds must as soon as practicable, and in any event not
later than 40 Business Days, after the Completion Date:
(a) instruct the Investor to prepare the draft Completion
Accounts in accordance with the Accounting Standards
and on a basis consistent with the March Management
Accounts (if there is any conflict between the
Accounting Standards and the basis upon which the March
Management Accounts were prepared, then the Accounting
Standards will prevail);
(b) ensure that if the Investor or Auditors propose to
provide any information or document to PEP or the Funds
or discuss any matter with PEP or the Funds in relation
to the preparation or audit of the Completion Accounts,
they simultaneously provide that information or
document to Cordiant UK or its representative or invite
it or its representative to be present at the
discussion, as the case may be.
(c) ensure that the Investor instructs the Auditors to:
(i) audit the draft consolidated balance sheet of the
Consolidated Group as at the Completion Date which
forms part of the Completion Accounts; and
(ii) prepare the draft Completion NTA Statement;
(d) ensure that the Investor delivers to the Cordiant
Parties the draft Completion Accounts;
(e) ensure that the Investor delivers to the Cordiant
Parties the draft Completion NTA Statement showing the
draft:
(i) value of the net tangible assets of the
Consolidated Group as at the Completion Date; and
(ii) amount payable (if any) by Cordiant UK under
clause 1.2(a) or by the Investor under clause
1.2(c).
1.2 Payment
69
(a) If there is a net decrease of more than $100,000 in the
impact of the Cash Items reflected in the Completion
NTA compared to the Cash Items reflected in the
Estimated NTA then Cordiant UK will, on the Payment
Date, pay to the Investor an amount equal to the
difference, solely to the extent that any such
difference is directly attributable to those Cash
Items.
(b) If Cordiant UK fails to pay to the Investor any amount
payable under paragraph (a) above then Cordiant UK must
pay to the Investor such amount on the date on which
Cordiant UK receives the proceeds from the first to
occur of a sale of the Cordiant Shares, a Trade Sale, a
Listing or a sale of the Share Capital.
(c) If there is a net increase of more than $100,000 in the
impact of the Cash Items reflected in the Completion
NTA compared to the Cash Items reflected in the
Estimated NTA, then the Investor will, on the Payment
Date, pay into the Escrow Account an amount equal to
the difference, solely to the extent that any such
difference is directly attributable to those Cash
Items.
(d) For the avoidance of doubt, any movement between the
Estimated NTA and Completion NTA that relates to the
sale of Marketforce Ltd, or to any item which is dealt
with under the Tax Indemnity Deed or Tax Assignment
Deed or to the payment of fees or expenses in
connection with the Transaction will not give rise to
an adjustment under clause 1.2(a) and 1.2(c).
1.3 Objections
The Funds and Cordiant UK must confer and use all reasonable
endeavours to agree on the Completion NTA Statement as soon
as possible after a draft is provided to Cordiant UK and the
Funds. Cordiant UK and its representatives and the Funds and
their representation must be allowed reasonable access to
all personnel involved in and records relating to
(including, without limitation, audit work papers) the
preparation and audit of the Completion Accounts and the
draft Completion NTA Statement. If neither the Funds nor
Cordiant UK dispute the draft Completion NTA Statement
within 15 Business Days after the date on which Cordiant UK
is given a copy of such document under clause 1.1(e) (Final
Objection Date) then the draft Completion NTA Statement will
be taken to be the final Completion NTA Statement and will
be final and binding on the parties. If either party
disputes the draft Completion NTA Statement before the Final
Objection Date, the dispute will be determined in accordance
with clause 1.4.
1.4 Dispute Resolution Procedure
(a) If either the Funds or Cordiant UK disputes the draft
Completion NTA Statement (Disputing Party), the
Disputing Party must give the other party a notice
(Dispute Notice) before the Final Objection Date
setting out:
(i) reasonable details of each matter in dispute; and
70
(ii) the reasons why each matter is disputed.
(b) Within 10 Business Days of the Disputing Party giving
the other party a Dispute Notice, the other party must
give the Disputing Party a response in writing on the
disputed matters (Response).
(c) If Cordiant UK and the Funds have not resolved the
dispute within 10 Business Days of the other party
giving the Response to the Disputing Party, the dispute
must promptly be submitted for determination to the
Independent Accountant to determine the matter or
matters in dispute.
(d) The disputed matters must be referred to the
Independent Accountant by written submission which must
include the draft Completion NTA Statement, the Dispute
Notice, the Response and an extract of the relevant
provisions of this agreement. The Independent
Accountant must also be instructed to finish its
determination no later than 20 Business Days after its
appointment (or another period agreed by the parties).
(e) The parties must promptly supply the Independent
Accountant with any information, assistance and
cooperation requested in writing by the Independent
Accountant in connection with its determination. All
correspondence between the Independent Accountant and a
party must be copied to the other parties.
(f) The Independent Accountant must act as an expert and
not as an arbitrator and its written determination will
be final and binding on the parties in the absence of
manifest error and the draft Completion NTA Statement
will be deemed to be amended accordingly and will be
taken to comprise the final Completion NTA Statement.
1.5 Costs
The costs of the:
(a) Auditors in preparing the Completion Accounts will be
borne by the Investor; and
(b) Independent Accountant (if instructed) will be borne by
the party against whom the dispute is resolved.
1.6 Escrow Account
Cordiant UK, the Funds and the Investor will at Completion
execute the Escrow Account Letter. Cordiant UK, the Funds
and the Investor agree that the Escrow Account Letter will
govern the funds held in the Escrow Account.
1.7 Optus and Panasonic Accruals
If the items listed at numbers 11 and 13 of Schedule A are
included on the Completion NTA Statement:
(a) they will not be taken into account in determining any
payment required to be made under clause 1.2; but
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(b) Cordiant UK must indemnify the Company against any
payment it is ever required to make in respect of those
items, up to the respective amounts set out in Schedule
A. Any such indemnity payment may be made out of the
Escrow Account.
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Schedule 13 - The Trust Warranties
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1 Authority
1.1 Authorisation and capacity
(a) The Trust has taken all necessary action to authorise the
execution and performance of each Transaction Document to which
it is a party.
(b) The Trust has the power to enter into and perform its obligations
under each Transaction Document and can do so without the consent
of any other person.
1.2 No legal impediment
The execution, delivery and performance by the Trust of each
Transaction Document complies with:
(a) each law, regulation, authorisation, ruling, judgement, order or
decree of any Government Agency; and
(b) the constitution or other constituent documents of the Trust and
the trust deed in respect of the TCG Trust.
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Executed as an agreement:
Signed for
Cordiant Communications Group Plc
by its duly authorised attorney in the
presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
Cordiant Communications (Australia) Pty Ltd
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
Xxxx Pacific Associates, LLC
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
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Signed for
BCIP Associates II
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
BCIP Associates II-B
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
Pacific Equity Partners Fund I Pty Limited
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
73
Signed for
Pacific Equity Partners (NZ) Limited
by its duly authorised attorney in the
presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
PEP Co-Investment Pty Limited
by its duly authorised attorney in the
presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
PEP Investment Pty Limited
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
74
Signed for
Pacific Equity Partners Pty Ltd
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
The Communications Group Holdings Pty Ltd
by its duly authorised attorney in the
presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
TCG Nominee Pty Limited
as trustee of the TCG Trust
by its duly authorised attorney in
the presence of:
/s/ [Authorized]
------------------------------------- -------------------------------------
Witness Attorney
------------------------------------- -------------------------------------
Name (please print) Name (please print)
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Signed for
Cordiant Communications Group
Australia Pty Ltd
by:
/s/ [Authorized]
------------------------------------- -------------------------------------
Director Director/Secretary
------------------------------------- -------------------------------------
Name (please print) Name (please print)
Signed for
Xxx Xxxxx
in the presence of:
/s/ Xxx Xxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxxx Xxxxx
in the presence of:
/s/ Xxxx Xxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxxxxxx Xxxxx
in the presence of:
/s/ Xxxxxxx Xxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
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Signed for
Xxxx Xxxxxxx
in the presence of:
/s/ Xxxx Xxxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxxxx Xxxxxxxxx
in the presence of:
/s/ Xxxxx Xxxxxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxxxxxx Xxxxxxxx
in the presence of:
/s/ Xxxxxxx Xxxxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxx Xxxxxxx
in the presence of:
/s/ Xxx Xxxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
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Signed for
Xxxx Xxxxxxx
in the presence of:
/s/ Xxxx Xxxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxxx Xxxxxx
in the presence of:
/s/ Xxxx Xxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
Signed for
Xxxxxx Xxxxxxx
in the presence of:
/s/ Xxxxxx Xxxxxxx
------------------------------------- -------------------------------------
Witness Name
-------------------------------------
Name (please print)
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