Form 603 Corporations Act 2001 Section 671B. Notice of initial substantial holder

Transcription

1 603 page 1/2 15 July 2001 Form 603 Corporations Act 2001 Section 671B Notice of initial substantial holder To Company Name/Scheme ERM Power Limited ACN/ARSN Details of substantial holder (1) Name ERM Power Limited ACN/ARSN (if applicable) The holder became a substantial holder on 10/12/ Details of voting power The total number of votes attached to all the voting shares in the company or voting interests in the scheme that the substantial holder or an associate (2) had a relevant interest (3) in on the date the substantial holder became a substantial holder are as follows: Class of securities (4) Number of securities Person s votes (5) Voting power (6) Full paid ordinary shares 99,332,084 99,332, % 3. Details of relevant interests The nature of the relevant interest the substantial holder or an associate had in the following voting securities on the date the substantial holder became a substantial holder are as follows: Holder of relevant interest Nature of relevant interest (7) Class and number of securities ERM Power Limited ERM Power Limited has a relevant interest in its own securities as a result of various voluntary restriction agreements entered into with shareholders which give it the power to control the exercise of a power to dispose of those securities for 99,332,084 fully paid ordinary shares the purpose of section 608(1). Pro forma copies of the relevant voluntary restriction agreements are attached as Annexures A to K. 4. Details of present registered holders The persons registered as holders of the securities referred to in paragraph 3 above are as follows: Holder of relevant interest Registered holder of securities Person entitled to be registered as holder (8) Refer to Annexure L Class and number of securities 5. Consideration The consideration paid for each relevant interest referred to in paragraph 3 above, and acquired in the four months prior to the day that the substantial holder became a substantial holder is as follows: Holder of relevant interest Date of acquisition Consideration (9) Class and number of securities Cash Non-cash ERM Power Limited Between 16 November 2010 and 17 November 2010 Nil 99,332,084 fully paid ordinary shares v1/S1

2 603 GUIDE page 1/1 13 March Associates The reasons the persons named in paragraph 3 above are associates of the substantial holder are as follows: Name and ACN/ARSN (if applicable) N/A Nature of association N/A 7. Addresses The addresses of persons named in this form are as follows: Name Address ERM Power Limited Level 5 Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Signature print name Peter Jans capacity Company Secretary sign here date 10/12/2010 DIRECTIONS (1) If there are a number of substantial holders with similar or related relevant interests (eg. a corporation and its related corporations, or the manager and trustee of an equity trust), the names could be included in an annexure to the form. If the relevant interests of a group of persons are essentially similar, they may be referred to throughout the form as a specifically named group if the membership of each group, with the names and addresses of members is clearly set out in paragraph 7 of the form. (2) See the definition of "associate" in section 9 of the Corporations Act (3) See the definition of "relevant interest" in sections 608 and 671B(7) of the Corporations Act (4) The voting shares of a company constitute one class unless divided into separate classes. (5) The total number of votes attached to all the voting shares in the company or voting interests in the scheme (if any) that the person or an associate has a relevant interest in. (6) The person s votes divided by the total votes in the body corporate or scheme multiplied by 100. (7) Include details of: any relevant agreement or other circumstances by which the relevant interest was acquired. If subsection 671B(4) applies, a copy of any document setting out the terms of any relevant agreement, and a statement by the person giving full and accurate details of any contract, scheme or arrangement, must accompany this form, together with a written statement certifying this contract, scheme or arrangement; and any qualification of the power of a person to exercise, control the exercise of, or influence the exercise of, the voting powers or disposal of the securities to which the relevant interest relates (indicating clearly the particular securities to which the qualification applies). See the definition of "relevant agreement" in section 9 of the Corporations Act (8) If the substantial holder is unable to determine the identity of the person (eg. if the relevant interest arises because of an option) write unknown. (9) Details of the consideration must include any and all benefits, moneys and other, that any person from whom a relevant interest was acquired has, or may, become entitled to receive in relation to that acquisition. Details must be included even if the benefit is conditional on the happening or not of a contingency. Details must be included of any benefit paid on behalf of the substantial holder or its associate in relation to the acquisitions, even if they are not paid directly to the person from whom the relevant interest was acquired v1/S2

3 Annexure A Voluntary Restriction Agreement (Sunset Power Pty Ltd) ERM Power Limited ACN This is Annexure A of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

4 Voluntary restriction deed ERM Power Limited ACN The party listed in item 1 of the Schedule v4 Voluntary restriction deed

5 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Mortgage Definitions Exercise of security 4 7 Permitted security interest Certain security interests permitted Holder to notify Company 5 8 Warranties Holder s warranties Breach of warranties 5 9 Consequences of breaching this document Enforcement Consequences of breach 5 10 Facsimile v4 Voluntary restriction deed

6 11 General Governing law and jurisdiction Counterparts Amendments and waivers 6 12 Notice Method of giving notice When is notice given Address for notices 7 Schedule Particulars (clause 1) 8 Execution v4 Voluntary restriction deed 2

7 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Background A B C The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day Listing Rules Restricted Period Securities Superior Proposal Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. means the period set out in item 2 of the Schedule. means the securities set out in item 3 of the Schedule. means competing Takeover Bid that has been publicly v4 Voluntary restriction deed

8 Term Takeover Bid Underwriters Definition announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5, 6 and 7, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid v4 Voluntary restriction deed 2

9 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement v4 Voluntary restriction deed 3

10 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Mortgage 6.1 Definitions The following definitions apply in this clause 6 and clause 7: Term Definition Arrow means Arrow Energy Limited ACN Arrow Generation means Arrow Generation Holdings Pty Ltd ACN Mortgage means the mortgage over shares between the Company, ERM Power Retail Pty Ltd ACN , Arrow, Arrow Generation and the Holder dated 16 July Exercise of security Notwithstanding anything in this document, the restrictions in clause 2 of this document on dealing in the Securities do not apply to any dealing by Arrow, Arrow Generation or their assignees (the Mortgagee) in connection with: a transfer of the Securities to a person entitled to the benefit of the Mortgage or a person acting as agent, trustee, or nominee for the Mortgagee as a result (in any case) of the exercise of the Mortgagee s rights under that Mortgage or the underlying facility agreement or other agreement which contains the obligations which are secured by the Mortgage; or a transfer of the Securities to a person who purchases the Securities from the Holder, the Mortgagee or a person acting as agent, trustee or nominee for the Mortgagee as a result (in any case) of the exercise of the Mortgagee s rights under the Mortgage or the underlying facility agreement or other agreement which contains the obligations which are secured by the Mortgage, nor do they restrict the Holder from doing anything reasonably required to ensure that it complies with its obligations under the Mortgage. 7 Permitted security interest 7.1 Certain security interests permitted Notwithstanding anything in this document, the restrictions in clause 2 of this document do not apply to restrict the grant of a security interest over the Securities by the Holder, or the exercise by any person of any rights pursuant to such security, where the interest secures: v4 Voluntary restriction deed 4

11 a loan the purpose of which is to permit the Holder (or a related entity) to fund participation in any issue of shares by the Company; or a loan to fund the Holder s (or a related entity s) potential acquisition of, or participation in the sale process of, whether along or with others, Gentrader contracts in respect of which the New South Wales government has sought expressions of interest (subject to approval by the board of the Company), subject to the following conditions: (c) the Mortgage must have been released; (d) the total value of the facility must not exceed $20,000,000; (e) the facility must, in the Company s opinion, be provided by a bona fide third party lender; and (f) the maximum loan to value ratio under the facility must not exceed 25%. 7.2 Holder to notify Company Before it grants a security interest over the Securities pursuant to clause 7.1, the Holder must notify the Company immediately in writing, setting out details of the proposed security interest, the underlying facility agreement (including the lender) and the likely loan to value ratio. 8 Warranties 8.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 8.2 Breach of warranties A breach of the warranties in clause 8.1 is a breach of this document. 9 Consequences of breaching this document 9.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 9.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and v4 Voluntary restriction deed 5

12 the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 10 Facsimile The parties agree that an executed facsimile copy of this document will be binding on all parties. 11 General 11.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company under clause 5 must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 12 Notice 12.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient v4 Voluntary restriction deed 6

13 12.2 When is notice given A notice, consent or communication delivered under clause 12.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: Sunset Power Pty Ltd ACN as trustee for the St Baker Family Trust Level 6, 135 Wickham Tce Spring Hill QLD 4000 Fax: (07) tstbaker@ermpower.com.au Company: Company Secretary Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v4 Voluntary restriction deed 7

14 Schedule Particulars (clause 1) 1 Holder Sunset Power Pty Ltd ACN as trustee for the St Baker Family Trust 2 Restricted Period (the period during which the Securities are restricted) of Level 6, 135 Wickham Tce, Spring Hill QLD From the date of listing of the Company on ASX until the date that is 3 business days after the release of the Company s full year results for the period ending 30 June Particulars of Securities 20,438,364 ordinary shares in the issued capital of the Company v4 Voluntary restriction deed 8

15 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by Sunset Power Pty Ltd ACN as trustee for the St Baker Family Trust by: Signature of Trevor St Baker who signs in the capacity of sole secretary and sole director v4 Voluntary restriction deed 9

16 Annexure B Voluntary Restriction Agreement (Entities controlled by Trevor St Baker other than Sunset Power Pty Ltd) ERM Power Limited ACN This is Annexure B of 11 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

17 Voluntary restriction deed ERM Power Limited ACN The party listed in item 1 of the Schedule v1 Voluntary restriction deed

18 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Permitted security interest Certain security interests permitted Holder to notify Company 4 7 Warranties Holder s warranties Breach of warranties 5 8 Consequences of breaching this document Enforcement Consequences of breach 5 9 Facsimile General Governing law and jurisdiction Counterparts v1 Voluntary restriction deed

19 10.3 Amendments and waivers 5 11 Notice Method of giving notice When is notice given Address for notices 6 Schedule Particulars (clause 1) 7 Execution v1 Voluntary restriction deed 2

20 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Background A B C The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day Listing Rules Restricted Period Securities Superior Proposal Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. means the period set out in item 2 of the Schedule. means the securities set out in item 3 of the Schedule. means competing Takeover Bid that has been publicly v1 Voluntary restriction deed

21 Term Takeover Bid Underwriters Definition announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 6, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid v1 Voluntary restriction deed 2

22 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement v1 Voluntary restriction deed 3

23 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Permitted security interest 6.1 Certain security interests permitted Notwithstanding anything in this document, the restrictions in clause 2 of this document do not apply to restrict the grant of a security interest over the Securities by the Holder, or the exercise by any person of any rights pursuant to such security, where the interest secures: a loan the purpose of which is to permit the Holder (or a related entity) to fund participation in any issue of shares by the Company; or a loan to fund the Holder s (or a related entity s) potential acquisition of, or participation in the sale process of, whether along or with others, Gentrader contracts in respect of which the New South Wales government has sought expressions of interest (subject to approval by the board of the Company), subject to the following conditions: (c) the total value of the facility must not exceed $20,000,000; (d) the facility must, in the Company s opinion, be provided by a bona fide third party lender; and (e) the maximum loan to value ratio under the facility must not exceed 25%. 6.2 Holder to notify Company Before it grants a security interest over the Securities pursuant to clause 6.1, the Holder must notify the Company immediately in writing, setting out details of the proposed security interest, the underlying facility agreement (including the lender) and the likely loan to value ratio. 7 Warranties 7.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document v1 Voluntary restriction deed 4

24 7.2 Breach of warranties A breach of the warranties in clause 7.1 is a breach of this document. 8 Consequences of breaching this document 8.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 8.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 9 Facsimile The parties agree that an executed facsimile copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld) v1 Voluntary restriction deed 5

25 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to that person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: [#insert details] Company: Company Secretary Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v1 Voluntary restriction deed 6

26 Schedule Particulars (clause 1) 1 Holder [#insert name] of [#insert address] 2 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company v1 Voluntary restriction deed 7

27 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary [#insert appropriate execution clause] v1 Voluntary restriction deed 8

28 Annexure C Voluntary Restriction Agreement (Senior management FY2012 escrow) ERM Power Limited ACN This is Annexure C of 11 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

29 Voluntary restriction deed ERM Power Limited ACN The party listed in item 1 of the Schedule v1 Voluntary restriction deed

30 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 4 8 Facsimile General Governing law and jurisdiction Counterparts Amendments and waivers 5 10 Notice Method of giving notice v1 Voluntary restriction deed

31 10.2 When is notice given Address for notices 6 Schedule Particulars (clause 1) 7 Execution v1 Voluntary restriction deed 2

32 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Background A B C The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day Listing Rules Restricted Period Securities Superior Proposal Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. means the period set out in item 2 of the Schedule. means the securities set out in item 3 of the Schedule. means competing Takeover Bid that has been publicly v1 Voluntary restriction deed

33 Term Takeover Bid Underwriters Definition announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 6, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid v1 Voluntary restriction deed 2

34 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement v1 Voluntary restriction deed 3

35 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Options Nothing in this document restricts the Holder from exercising any options over shares in the Company in which case the Holder agrees that the restrictions in clause 2 apply to the ordinary shares issued or transferred on exercise of those options, subject to clauses 3, 4 and 5. 7 Warranties 7.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 7.2 Breach of warranties A breach of the warranties in clause 7.1 is a breach of this document. 8 Consequences of breaching this document 8.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 8.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules v1 Voluntary restriction deed 4

36 9 Facsimile The parties agree that an executed facsimile copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to that person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: v1 Voluntary restriction deed 5

37 if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: [#insert details] Fax: [#insert] [#insert] Company: Company Secretary Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v1 Voluntary restriction deed 6

38 Schedule Particulars (clause 1) 1 Holder [#insert name] of [#insert address] 2 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company and, in accordance with clause 6, any ordinary shares in the capital of the Company issued or transferred to the Holder on the exercise of an option. [#insert] options over shares in the capital of the Company v1 Voluntary restriction deed 7

39 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary [#insert appropriate execution clause] v1 Voluntary restriction deed 8

40 Annexure D Voluntary Restriction Agreement (Senior management 25% released after FY2011) ERM Power Limited ACN This is Annexure D of 11 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

41 Voluntary restriction deed ERM Power Limited ACN The party listed in item 1 of the Schedule v1 Voluntary restriction deed

42 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 4 8 Facsimile General Governing law and jurisdiction Counterparts Amendments and waivers 5 10 Notice Method of giving notice v1 Voluntary restriction deed

43 10.2 When is notice given Address for notices 6 Schedule Particulars (clause 1) 7 Execution v1 Voluntary restriction deed 2

44 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Background A B C The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term Associated Restriction Deed ASX Bidder Business Day Definition means a restriction deed entered into by the Company, the Holder (or an associate of the Holder) or the trustee of an employee or executive incentive scheme of the Company (or all of them) on or about the date of this document which restricts the disposal of securities of the Company by the registered holder on similar terms to those set out in this document. means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made v1 Voluntary restriction deed

45 Term IPO Prospectus Listing Rules Restricted Period Securities Superior Proposal Takeover Bid Underwriters Definition means the disclosure document for an initial public offering of shares in the capital of the Company to be dated on or about 17 November means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. means the period set out in item 2 of the Schedule. means the securities set out in item 3 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 6, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities v1 Voluntary restriction deed 2

46 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; v1 Voluntary restriction deed 3

47 (iii) (iv) (v) the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Options Nothing in this document restricts the Holder from exercising any options over shares in the Company in which case the Holder agrees that the restrictions in clause 2 apply to the ordinary shares issued or transferred on exercise of those options, subject to clauses 3, 4 and 5. 7 Warranties 7.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 7.2 Breach of warranties A breach of the warranties in clause 7.1 is a breach of this document. 8 Consequences of breaching this document 8.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 8.2 Consequences of breach If the Holder breaches this document, each of the following applies: v1 Voluntary restriction deed 4

48 the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 9 Facsimile The parties agree that an executed facsimile copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to that person s address; or v1 Voluntary restriction deed 5

49 (iv) sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: [#insert details] Fax: [#insert] [#insert] Company: Company Secretary Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v1 Voluntary restriction deed 6

50 Schedule Particulars (clause 1) 1 Holder [#insert name] of [#insert address] 2 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June However, 25% of the Securities (rounded down to the nearest whole number) will be released from the restrictions set out in this document on the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June 2011 provided that: the Company s financial forecasts for the period ending 30 June 2011 as set out in the IPO Prospectus are met; and the Company s profit guidance for the year ending 30 June 2012 meets or exceeds the Company s financial forecasts for the period ending 30 June 2012 as set out in the IPO Prospectus. For the avoidance of doubt, if the Company determines, in its absolute discretion, that the above conditions have not been satisfied, no Securities will be released from the restrictions set out in this document until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June If the Holder (or an associate of the Holder) has entered into an Associated Restriction Deed and the conditions set out above are satisfied, the Holder may elect the composition of Securities or securities the subject of an Associated Restriction Deed to be released (Non-Restricted Securities) provided that the total number of Non- Restricted Securities does not exceed 25% of the total securities that are restricted under this document or an Associated Restriction Deed. 3 Particulars of Securities [#insert] ordinary shares in the issued capital of the Company and, in accordance with clause 6, any ordinary shares in the capital of the Company issued or transferred to the Holder on the exercise of an option. [#insert] options over shares in the capital of the Company v1 Voluntary restriction deed 7

51 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary [#insert appropriate execution clause] v1 Voluntary restriction deed 8

52 Annexure E Voluntary Restriction Agreement (Other shareholders) ERM Power Limited ACN This is Annexure E of 11 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

53 Voluntary restriction deed ERM Power Limited ACN The party listed in item 1 of the Schedule v1 Voluntary restriction deed

54 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 4 8 Facsimile General Governing law and jurisdiction Counterparts Amendments and waivers 5 10 Notice Method of giving notice v1 Voluntary restriction deed

55 10.2 When is notice given Address for notices 6 Schedule Particulars (clause 1) 7 Execution v1 Voluntary restriction deed 2

56 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Background A B C The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day Listing Rules Restricted Period Securities Superior Proposal Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. means the period set out in item 2 of the Schedule. means the securities set out in item 3 of the Schedule. means competing Takeover Bid that has been publicly v1 Voluntary restriction deed

57 Term Takeover Bid Underwriters Definition announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4 and 5, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid v1 Voluntary restriction deed 2

58 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement v1 Voluntary restriction deed 3

59 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Warranties 6.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 6.2 Breach of warranties A breach of the warranties in clause 6.1 is a breach of this document. 7 Consequences of breaching this document 7.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 7.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 8 Facsimile The parties agree that an executed facsimile copy of this document will be binding on all parties v1 Voluntary restriction deed 4

60 9 General 9.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts. 9.2 Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument. 9.3 Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 10 Notice 10.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to that person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 10.1 is given and received: if it is hand delivered or sent by fax or (i) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or v1 Voluntary restriction deed 5

61 (ii) after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: [#insert details] Fax: [#insert] [#insert] Company: Company Secretary Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v1 Voluntary restriction deed 6

62 Schedule Particulars (clause 1) 1 Holder [#insert name] of [#insert address] 2 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company v1 Voluntary restriction deed 7

63 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary [#insert appropriate execution clause] v1 Voluntary restriction deed 8

64 Annexure F Voluntary Restriction Agreement (Senior management FY2012 escrow - ERM Power Share Plan Managers Pty Ltd) ERM Power Limited ACN This is Annexure F of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

65 Voluntary restriction deed ERM Power Limited ACN The parties listed in items 1 and 2 of the Schedule v1 Voluntary restriction deed

66 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 4 8 Consent, Undertaking and Release Consent Undertaking Release 5 9 Facsimile General Governing law and jurisdiction v1 Voluntary restriction deed

67 10.2 Counterparts Amendments and waivers 5 11 Notice Method of giving notice When is notice given Address for notices 6 Schedule Particulars (clause 1) 8 Execution v1 Voluntary restriction deed 2

68 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Beneficial Owner The party listed in item 2 of the Schedule of the address listed in item 2 of the Schedule Background A B C D The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. The Beneficial Owner consents and agrees to the matters contained in this document. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day DESP Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the Company s Deferred Employee Share Plan Trust pursuant to which the Holder holds the Securities for the benefit v1 Voluntary restriction deed

69 Term Listing Rules Definition of the Beneficial Owner. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. Released Securities has the meaning given in clause 8.2. Restricted Period Securities Superior Proposal Takeover Bid Underwriters means the period set out in item 3 of the Schedule. means the securities set out in item 4 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 8, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities v1 Voluntary restriction deed 2

70 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may, at the direction of the Beneficial Owner, enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; v1 Voluntary restriction deed 3

71 (ii) (iii) (iv) (v) a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Warranties 6.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 6.2 Breach of warranties A breach of the warranties in clause 6.1 is a breach of this document. 7 Consequences of breaching this document 7.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 7.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and v1 Voluntary restriction deed 4

72 the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 8 Consent, Undertaking and Release 8.1 Consent The Beneficial Owner consents to the matters contained in this document and agrees to hold harmless the Holder in performing its obligations under this document. 8.2 Undertaking The Beneficial Owner and the Company agree that if, during the Restricted Period, the Beneficial Owner requests the Holder to withdraw any of the Securities from the DESP (Released Securities), this document (other than this clause 8) will continue to apply to the Released Securities as if the Beneficial Owner had the same rights and obligations as the Holder on the date of this document. 8.3 Release The Company releases and holds harmless the Holder from all obligations under this document in relation to the Released Securities. 9 Facsimile The parties agree that an executed facsimile or copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld) v1 Voluntary restriction deed 5

73 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: ERM Power Employee Share Plan Managers Pty Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v1 Voluntary restriction deed 6

74 Company: Company Secretary ERM Power Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) Beneficial Owner: [#insert] Fax: [#insert] [#insert] v1 Voluntary restriction deed 7

75 Schedule Particulars (clause 1) 1 Holder ERM Power Employee Share Plan Managers Pty Limited 2 Beneficial Owner [#insert] of Level 5 Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 of [#insert] 3 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company v1 Voluntary restriction deed 8

76 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by ERM Power Employee Share Plan Managers Pty Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by [#insert name] in the presence of: Signature of [#insert name] Signature of witness Name of witness (print) v1 Voluntary restriction deed 9

77 Annexure G Voluntary Restriction Agreement (Senior management 25% released after FY2011 ERM Power Employee Share Plan Managers Pty Ltd) ERM Power Limited ACN This is Annexure G of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

78 Voluntary restriction deed ERM Power Limited ACN The parties listed in items 1 and 2 of the Schedule v1 Voluntary restriction deed

79 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 3 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 5 8 Consent, Undertaking and Release Consent Undertaking Release 5 9 Facsimile General Governing law and jurisdiction v1 Voluntary restriction deed

80 10.2 Counterparts Amendments and waivers 6 11 Notice Method of giving notice When is notice given Address for notices 6 Schedule Particulars (clause 1) 8 Execution v1 Voluntary restriction deed 2

81 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Beneficial Owner The party listed in item 2 of the Schedule of the address listed in item 2 of the Schedule Background A B C D The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. The Beneficial Owner consents and agrees to the matters contained in this document. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term Associated Restriction Deed ASX Definition means a restriction deed entered into by the Company, the Beneficial Owner (or an associate of the Beneficial Owner) or the trustee of an employee or executive incentive scheme of the Company (or all of them) on or about the date of this document which restricts the disposal of securities of the Company held by the registered holder on similar terms to those set out in this document. means ASX Limited ACN or the securities exchange operated by it (as the case requires) v1 Voluntary restriction deed

82 Term Bidder Business Day DESP IPO Prospectus Listing Rules Definition has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the Company s Deferred Employee Share Plan Trust pursuant to which the Holder holds the Securities for the benefit of the Beneficial Owner. means the disclosure document for an initial public offering of shares in the capital of the Company to be dated on or about 17 November means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. Released Securities has the meaning given to that term in clause 8.2. Restricted Period Securities Superior Proposal Takeover Bid Underwriters means the period set out in item 3 of the Schedule. means the securities set out in item 4 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 8, during the Restricted Period the Holder must not: sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; v1 Voluntary restriction deed 2

83 (c) create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may, at the direction of the Beneficial Owner, enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; v1 Voluntary restriction deed 3

84 (c) require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Warranties 6.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 6.2 Breach of warranties A breach of the warranties in clause 6.1 is a breach of this document. 7 Consequences of breaching this document 7.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document v1 Voluntary restriction deed 4

85 7.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 8 Consent, Undertaking and Release 8.1 Consent The Beneficial Owner consents to the matters contained in this document and agrees to hold harmless the Holder in performing its obligations under this document. 8.2 Undertaking The Beneficial Owner and the Company agree that if, during the Restricted Period, the Beneficial Owner requests the Holder to withdraw any of the Securities from the DESP (Released Securities), this document (other than this clause 8) will continue to apply to the Released Securities as if the Beneficial Owner had the same rights and obligations as the Holder on the date of this document. 8.3 Release The Company releases and holds harmless the Holder from all obligations under this document in relation to the Released Securities. 9 Facsimile The parties agree that an executed facsimile or copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument v1 Voluntary restriction deed 5

86 10.3 Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: v1 Voluntary restriction deed 6

87 Holder: ERM Power Employee Share Plan Managers Pty Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) Company: Company Secretary ERM Power Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) Beneficial Owner: [#insert] Fax: [#insert] [#insert] v1 Voluntary restriction deed 7

88 Schedule Particulars (clause 1) 1 Holder ERM Power Employee Share Plan Managers Pty Limited 2 Beneficial Owner [#insert] of Level 5 Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 of [#insert] 3 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June However, 25% of the Securities (rounded down to the nearest whole number) will be released from the restrictions set out in this document on the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June 2011 provided that, and conditional on: the Company s financial forecasts for the period ending 30 June 2011 as set out in the IPO Prospectus are met; and the Company s profit guidance for the period ending 30 June 2012 meets or exceeds the Company s financial forecasts for the year ending 30 June 2012 as set out in the IPO Prospectus. For the avoidance of doubt, if the Company determines, in its absolute discretion, that the above conditions have not been satisfied, no Securities will be released from the restrictions set out in this document until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June If the Beneficial Owner (or an associate of the Beneficial Owner) has entered into an Associated Restriction Deed and the conditions set out above are satisfied, the Beneficial Owner may elect the composition of Securities or securities the subject of an Associated Restriction Deed to be released (Non-Restricted Securities) provided that the total number of Non-Restricted Securities does not exceed 25% of the total securities that are restricted under this document or an Associated Restriction Deed. 4 Particulars of Securities [#insert] ordinary shares in the issued capital of the Company v1 Voluntary restriction deed 8

89 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by ERM Power Employee Share Plan Managers Pty Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by [#insert name] in the presence of: Signature of [#insert name] Signature of witness Name of witness (print) v1 Voluntary restriction deed 9

90 Annexure H Voluntary Restriction Agreement (Other shareholders ERM Power Employee Share Plan Managers Pty Ltd) ERM Power Limited ACN This is Annexure H of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

91 Voluntary restriction deed ERM Power Limited ACN The parties listed in items 1 and 2 of the Schedule v1 Voluntary restriction deed

92 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 2 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 4 8 Consent, Undertaking and Release Consent Undertaking Release 5 9 Facsimile General Governing law and jurisdiction v1 Voluntary restriction deed

93 10.2 Counterparts Amendments and waivers 5 11 Notice Method of giving notice When is notice given Address for notices 6 Schedule Particulars (clause 1) 8 Execution v1 Voluntary restriction deed 2

94 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Beneficial Owner The party listed in item 2 of the Schedule of the address listed in item 2 of the Schedule Background A B C D The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. The Beneficial Owner consents and agrees to the matters contained in this document. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day DESP Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means the Company s Deferred Employee Share Plan Trust pursuant to which the Holder holds the Securities for the benefit v1 Voluntary restriction deed

95 Term Listing Rules Definition of the Beneficial Owner. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. Released Securities has the meaning given in clause 8.2. Restricted Period Securities Superior Proposal Takeover Bid Underwriters means the period set out in item 3 of the Schedule. means the securities set out in item 4 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 8, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities v1 Voluntary restriction deed 2

96 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may, at the direction of the Beneficial Owner, enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; v1 Voluntary restriction deed 3

97 (ii) (iii) (iv) (v) a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Warranties 6.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 6.2 Breach of warranties A breach of the warranties in clause 6.1 is a breach of this document. 7 Consequences of breaching this document 7.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 7.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and v1 Voluntary restriction deed 4

98 the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 8 Consent, Undertaking and Release 8.1 Consent The Beneficial Owner consents to the matters contained in this document and agrees to hold harmless the Holder in performing its obligations under this document. 8.2 Undertaking The Beneficial Owner and the Company agree that if, during the Restricted Period, the Beneficial Owner requests the Holder to withdraw any of the Securities from the DESP (Released Securities), this document (other than this clause 8) will continue to apply to the Released Securities as if the Beneficial Owner had the same rights and obligations as the Holder on the date of this document. 8.3 Release The Company releases and holds harmless the Holder from all obligations under this document in relation to the Released Securities. 9 Facsimile The parties agree that an executed facsimile or copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld) v1 Voluntary restriction deed 5

99 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: ERM Power Employee Share Plan Managers Pty Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au v1 Voluntary restriction deed 6

100 Company: Company Secretary ERM Power Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) Beneficial Owner: [#insert] Fax: [#insert] [#insert] v1 Voluntary restriction deed 7

101 Schedule Particulars (clause 1) 1 Holder ERM Power Employee Share Plan Managers Pty Limited 2 Beneficial Owner [#insert] of Level 5 Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 of [#insert] 3 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company v1 Voluntary restriction deed 8

102 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by ERM Power Employee Share Plan Managers Pty Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by [#insert name] in the presence of: Signature of [#insert name] Signature of witness Name of witness (print) v1 Voluntary restriction deed 9

103 Annexure I Voluntary Restriction Agreement (Senior management FY2012 escrow Trinity Management Pty Ltd) ERM Power Limited ACN This is Annexure I of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

104 Voluntary restriction deed ERM Power Limited ACN The parties listed in items 1 and 2 of the Schedule v1 Voluntary restriction deed

105 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 3 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 5 8 Consent, Undertaking and Release Consent Undertaking Release 5 9 Facsimile General Governing law and jurisdiction v1 Voluntary restriction deed

106 10.2 Counterparts Amendments and waivers 6 11 Notice Method of giving notice When is notice given Address for notices 7 Schedule Particulars (clause 1) 8 Execution v1 Voluntary restriction deed 2

107 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Beneficial Owner The party listed in item 2 of the Schedule of the address listed in item 2 of the Schedule Background A B C D The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. The Beneficial Owner consents and agrees to the matters contained in this document. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made v1 Voluntary restriction deed

108 Term Incentive Plan IPO Prospectus Listing Rules Definition means any executive or employee incentive scheme of the Company (including the Company s Executive Long Term Incentive Share Trust (LTIST), the Company s Employee Short Term Incentive Share Trust (STIST) and the Company s Executive Long Term Incentive Option Trust (LTIOT)) of which the Holder is the trustee and the Beneficial Owner holds units which represent an entitlement to shares in the Company or options over shares in the Company, including the Securities. means the disclosure document for an initial public offering of shares in the capital of the Company dated on or about 17 November means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. Released Securities has the meaning given in clause 9.2. Restricted Period Securities Superior Proposal Takeover Bid Underwriters means the period set out in item 3 of the Schedule. means the securities set out in item 4 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5, 6 and 9, during the Restricted Period the Holder must not: sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or v1 Voluntary restriction deed 2

109 (c) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may, at the direction of the Beneficial Owner, enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; v1 Voluntary restriction deed 3

110 (c) automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Options Nothing in this document restricts the Beneficial Owner from procuring the exercise of any options over shares in the Company in which case the Beneficial Owner agrees that the restrictions in clause 2 apply to the ordinary shares issued or transferred on exercise of those options, subject to clauses 3, 4, and 5. 7 Warranties 7.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 7.2 Breach of warranties A breach of the warranties in clause 7.1 is a breach of this document v1 Voluntary restriction deed 4

111 8 Consequences of breaching this document 8.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 8.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 9 Consent, Undertaking and Release 9.1 Consent The Beneficial Owner consents to the matters contained in this document and agrees to hold harmless the Holder in performing its obligations under this document. 9.2 Undertaking The Beneficial Owner and the Company agree that if, during the Restricted Period, the Beneficial Owner requests the Holder to withdraw any of the Securities from an Incentive Plan (Released Securities), this document (other than this clause 9) will continue to apply to the Released Securities as if the Beneficial Owner had the same rights and obligations as the Holder on the date of this document. 9.3 Release The Company releases and holds harmless the Holder from all obligations under this document in relation to the Released Securities. 10 Facsimile The parties agree that an executed facsimile or copy of this document will be binding on all parties. 11 General 11.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts v1 Voluntary restriction deed 5

112 11.2 Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 12 Notice 12.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 12.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting v1 Voluntary restriction deed 6

113 12.3 Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: Trinity Management Pty Ltd ACN Level 4, 302 Collins Street Melbourne, Victoria, 3000 Fax: (03) admin@tmgadmin.com Company: Company Secretary ERM Power Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au Beneficial Owner: [#insert] Fax: [#insert] [#insert] v1 Voluntary restriction deed 7

114 Schedule Particulars (clause 1) 1 Holder Trinity Management Pty Ltd ACN of Level 4, 302 Collins Street, Melbourne, Victoria, Beneficial Owner [#insert] of [#insert] 3 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company (being [#insert] ordinary shares held in the STIST and [#insert] ordinary shares held in the LTIST) and, in accordance with clause 6, any ordinary shares in the capital of the Company issued or transferred to the Beneficial Owner on the exercise of an option. [#insert] options over shares in the capital of the Company held in the LTIOT v1 Voluntary restriction deed 8

115 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by Trinity Management Pty Ltd ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by [#insert name] in the presence of: Signature of [#insert name] Signature of witness Name of witness (print) v1 Voluntary restriction deed 9

116 Annexure J Voluntary Restriction Agreement (Senior management 25% release after FY2011 Trinity Management Pty Ltd) ERM Power Limited ACN This is Annexure J of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

117 Voluntary restriction deed ERM Power Limited ACN The parties listed in items 1 and 2 of the Schedule v1 Voluntary restriction deed

118 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 3 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 5 7 Consequences of breaching this document Enforcement Consequences of breach 5 8 Consent, Undertaking and Release Consent Undertaking Release 5 9 Facsimile General Governing law and jurisdiction v1 Voluntary restriction deed

119 10.2 Counterparts Amendments and waivers 6 11 Notice Method of giving notice When is notice given Address for notices 7 Schedule Particulars (clause 1) 8 Execution v1 Voluntary restriction deed 2

120 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Beneficial Owner The party listed in item 2 of the Schedule of the address listed in item 2 of the Schedule Background A B C D The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. The Beneficial Owner consents and agrees to the matters contained in this document. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term Associated Restriction Deed ASX Definition means a restricted deed entered into by the Company, the Beneficial Owner (or an associate of the Beneficial Owner) or the trustee of an employee or executive incentive scheme of the Company (or all of them) on or about the date of this document which restricts the disposal of securities of the Company by the registered holder on similar terms to those set out in this document. means ASX Limited ACN or the securities exchange operated by it (as the case requires) v1 Voluntary restriction deed

121 Term Bidder Business Day Incentive Plan IPO Prospectus Listing Rules Definition has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means any executive or employee incentive scheme of the Company (including the Company s Executive Long Term Incentive Share Trust (LTIST), the Company s Employee Short Term Incentive Share Trust (STIST) and the Company s Executive Long Term Incentive Option Trust (LTIOT)) of which the Holder is the trustee and the Beneficial Owner holds units which represent an entitlement to shares in the Company or options over shares in the Company, including the Securities. means the disclosure document for an initial public offering of shares in the capital of the Company to be dated on or about 17 November means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. Released Securities has the meaning given to that term in clause 9.2. Restricted Period Securities Superior Proposal Takeover Bid Underwriters means the period set out in item 3 of the Schedule. means the securities set out in item 4 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns v1 Voluntary restriction deed 2

122 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5, 6 and 9, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities. 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied v1 Voluntary restriction deed 3

123 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may, at the direction of the Beneficial Owner, enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Options Nothing in this document restricts the Beneficial Owner from procuring the exercise of any options over shares in the Company in which case the Beneficial Owner agrees that the restrictions in clause 2 apply to the ordinary shares issued or transferred on exercise of those options, subject to clauses 3, 4, and v1 Voluntary restriction deed 4

124 7 Warranties 7.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 7.2 Breach of warranties A breach of the warranties in clause 7.1 is a breach of this document. 8 Consequences of breaching this document 8.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 8.2 Consequences of breach If the Holder breaches this document, each of the following applies: the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 9 Consent, Undertaking and Release 9.1 Consent The Beneficial Owner consents to the matters contained in this document and agrees to hold harmless the Holder in performing its obligations under this document. 9.2 Undertaking The Beneficial Owner and the Company agree that if, during the Restricted Period, the Beneficial Owner requests the Holder to withdraw any of the Securities from an Incentive Plan (Released Securities), this document (other than this clause 9) will continue to apply to the Released Securities as if the Beneficial Owner had the same rights and obligations as the Holder on the date of this document v1 Voluntary restriction deed 5

125 9.3 Release The Company releases and holds harmless the Holder from all obligations under this document in relation to the Released Securities. 10 Facsimile The parties agree that an executed facsimile or copy of this document will be binding on all parties. 11 General 11.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld). 12 Notice 12.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has v1 Voluntary restriction deed 6

126 12.2 When is notice given been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient. A notice, consent or communication delivered under clause 12.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: Holder: Trinity Management Pty Ltd ACN Level 4, 302 Collins Street Melbourne, Victoria, 3000 Fax: (03) admin@tmgadmin.com Company: Company Secretary ERM Power Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) sirwin@ermpower.com.au Beneficial Owner: [#insert] Fax: [#insert] [#insert] v1 Voluntary restriction deed 7

127 Schedule Particulars (clause 1) 1 Holder Trinity Management Pty Ltd ACN of Level 4, 302 Collins Street, Melbourne, Victoria, Beneficial Owner [#insert] of [#insert] 3 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June However, 25% of the Securities (rounded down to the nearest whole number) will be released from the restrictions set out in this document on the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June 2011 provided that: the Company s financial forecasts for the period ending 30 June 2011 as set out in the IPO Prospectus are met; and the Company s profit guidance for the period ending 30 June 2012 meets or exceeds the Company s financial forecasts for the year ending 30 June 2012 as set out in the IPO Prospectus. For the avoidance of doubt, if the Company determines, in its absolute discretion, that the above conditions have not been satisfied, no Securities will be released from the restrictions set out in this document until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June If the Beneficial Owner (or an associate of the Beneficial Owner) have entered into an Associated Restriction Deed, and the conditions set out above are satisfied, the Beneficial Owner may elect the composition of Securities or securities the subject of an Associated Restriction Deed to be released (Non-Restricted Securities) provided that the total number of Non-Restricted Securities does not exceed 25% of the total securities that are restricted under this document or an Associated Restriction Deed. 4 Particulars of Securities [#insert] ordinary shares in the issued capital of the Company (being [#insert] ordinary shares held in the STIST and [#insert] ordinary shares held in the LTIST) and, in accordance with clause 6, any ordinary shares in the capital of the Company issued or transferred to the Beneficial Owner on the exercise of an option. [#insert] options over shares in the capital of the Company held in the LTIOT v1 Voluntary restriction deed 8

128 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by Trinity Management Pty Ltd ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by [#insert name] in the presence of: Signature of [#insert name] Signature of witness Name of witness (print) v1 Voluntary restriction deed 9

129 Annexure K Voluntary Restriction Agreement (Other shareholders Trinity Management Pty Ltd) ERM Power Limited ACN This is Annexure K of 12 pages referred to in Form 603 (Notice of initial substantial holder). Peter Jans Company Secretary Date: 10 December 2010

130 Voluntary restriction deed ERM Power Limited ACN The parties listed in items 1 and 2 of the Schedule v1 Voluntary restriction deed

131 Table of contents Parties Background Agreed terms Definitions and interpretation Definitions Interpretation 2 2 Restrictions Holder activity during Restricted Period Holding lock 3 3 Takeover Bid Release during Takeover Bid Return of holding lock 3 4 Merger Release during merger Return of holding lock 3 5 Pre-bid Acceptance Agreements Entry into Pre-bid Acceptance Agreements Limited release 4 6 Warranties Holder s warranties Breach of warranties 4 7 Consequences of breaching this document Enforcement Consequences of breach 4 8 Consent, Undertaking and Release Consent Undertaking Release 5 9 Facsimile General Governing law and jurisdiction v1 Voluntary restriction deed

132 10.2 Counterparts Amendments and waivers 5 11 Notice Method of giving notice When is notice given Address for notices 6 Schedule Particulars (clause 1) 8 Execution v1 Voluntary restriction deed 2

133 Voluntary restriction deed Dated Parties Company ERM Power Limited ACN of Level 5, Riverside Centre, 123 Eagle Street, Brisbane QLD 4000 Holder The party listed in item 1 of the Schedule of the address listed in item 1 of the Schedule Beneficial Owner The party listed in item 2 of the Schedule of the address listed in item 2 of the Schedule Background A B C D The Company has issued securities to the Holder. The Holder holds the securities as set out in this document. The Holder has agreed to enter into this document voluntarily for the benefit of the Company. The Beneficial Owner consents and agrees to the matters contained in this document. Agreed terms 1 Definitions and interpretation 1.1 Definitions In this document, terms defined in the Listing Rules have the same meanings when used in this document, and: Term ASX Bidder Business Day Incentive Plan Definition means ASX Limited ACN or the securities exchange operated by it (as the case requires). has the meaning given to that term in the Corporations Act 2001 (Cth). means a day that is not a Saturday, Sunday or public holiday in the place where an act is to be performed, notice received or a payment is to be made. means any executive or employee incentive scheme of the Company (including the Company s Executive Long Term v1 Voluntary restriction deed

134 Term Listing Rules Definition Incentive Share Trust (LTIST) and the Company s Employee Short Term Incentive Share Trust (STIST)) of which the Holder is trustee and in which the Beneficial Owner holds units which represent an entitlement to shares in the Company, including the Securities. means the listing rules of ASX which govern, among other things, the admission of entities to the official list of ASX, disclosure and some aspects of a listed company s conduct. Released Securities has the meaning given in clause 8.2. Restricted Period Securities Superior Proposal Takeover Bid Underwriters means the period set out in item 3 of the Schedule. means the securities set out in item 4 of the Schedule. means competing Takeover Bid that has been publicly announced and that, taking into account all aspects of the competing Takeover Bid, is: reasonably capable of being completed; and values each Security higher than under any other Takeover Bid that is on offer at the relevant time. has the meaning given to that term in the Corporations Act 2001 (Cth). means Macquarie Capital Advisers Limited ACN , RBS Equity Capital Markets (Australia) Limited ACN and RBS Morgans Corporate Limited ACN Interpretation In this document: a singular word includes the plural and vice versa; and a reference to a party to this document or any other document or agreement includes the party s successors, permitted substitutes and permitted assigns. 2 Restrictions 2.1 Holder activity during Restricted Period Subject to clauses 3, 4, 5 and 8, during the Restricted Period the Holder must not: (c) sell, transfer, or otherwise dispose of, or agree or offer to sell, transfer or otherwise dispose of, the Securities; create, or agree to create, any security interests in the Securities; or do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Securities v1 Voluntary restriction deed 2

135 2.2 Holding lock If the Securities are kept on an issuer sponsored subregister, the Holder agrees to the application of a holding lock to the Securities. 3 Takeover Bid 3.1 Release during Takeover Bid The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if: a Takeover Bid is made to acquire all of the issued ordinary shares of the Company; and holders of at least half of the Securities in the bid class that are not subject to escrow have accepted the Takeover Bid. 3.2 Return of holding lock If the Takeover Bid does not become unconditional, the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 4 Merger 4.1 Release during merger The Company must release all or any part of the Securities from the restrictions in clause 2 by notice in writing to the Holder if the Securities are proposed to be transferred or cancelled as part of a merger by way of scheme of arrangement under part 5.1 Corporations Act 2001 (Cth). 4.2 Return of holding lock If the merger by scheme of arrangement is not carried out the Holder and the Company agree for holding locks in respect of the Securities to be reapplied. 5 Pre-bid Acceptance Agreements 5.1 Entry into Pre-bid Acceptance Agreements The Holder may, at the direction of the Beneficial Owner, enter into, and perform its obligations under, an agreement with a potential Bidder whereby the Holder agrees to accept the offer made to it under a Takeover Bid for all of the issued ordinary shares of the Company (Offer) within a period of time after the offer period begins (Pre-Bid Acceptance Agreement), provided that the terms thereof must: (c) be subject to a condition precedent that the Bidder publicly propose the Offer within 5 Business Days after the date of the Pre-Bid Acceptance Agreement; require the Holder to accept the Offer for all or any part of the Securities no earlier than 10 Business Days after the offer period begins; automatically terminate if: v1 Voluntary restriction deed 3

136 (i) (ii) (iii) (iv) (v) the Bidder does not dispatch offers under the Offer within two months after the date on which the Bidder publicly announces that it intends to make the Offer; a superior proposal (being one that, taking into account all aspects of the proposal, is reasonably capable of being completed and represents superior value to members of the Company) is made before the Holder accepts the Offer; the Bidder s offers under the Offer lapse (without being free of all conditions); a court or the Takeovers Panel decides that all or any part of the transaction contemplated by the Pre-bid Acceptance Agreement is unlawful or constitutes unacceptable circumstances; or on the date which is three months after the date of the Pre-bid Acceptance Agreement. 5.2 Limited release Subject to clause 5.2 and the Pre-bid Acceptance Agreement satisfying the requirements of clause 5.1, the Company must release those Securities which are the subject of the Offer and the Pre-bid Acceptance Agreement from the restrictions in clause 2 and do all other things necessary in time to permit the Holder to comply with its obligation to accept the Offer under the Pre-bid Acceptance Agreement. The release contained in this clause 5.2 is a limited release and only releases the Holder from the restrictions in clause 2 for the sole purpose of accepting the Offer. 6 Warranties 6.1 Holder s warranties The Holder warrants to the Company that: before the Restricted Period begins, the Holder has not done, or omitted to do, any act which would breach clause 2 if done or omitted to be done during the Restricted Period; and the Holder has power to enter into and perform its obligations under this document. 6.2 Breach of warranties A breach of the warranties in clause 6.1 is a breach of this document. 7 Consequences of breaching this document 7.1 Enforcement If the Company anticipates that the Holder may breach this document, the Company may take steps necessary to prevent the breach or to enforce the document. 7.2 Consequences of breach If the Holder breaches this document, each of the following applies: v1 Voluntary restriction deed 4

137 the Company may take the steps necessary to enforce the document or to rectify the breach; and the Company may (in addition to other rights and remedies of the Company), refuse to acknowledge, deal with, accept or register any sale, assignment, transfer or conversion of any of the Securities unless the Company is prohibited from doing so by the Listing Rules. 8 Consent, Undertaking and Release 8.1 Consent The Beneficial Owner consents to the matters contained in this document and agrees to hold harmless the Holder in performing its obligations under this document. 8.2 Undertaking The Beneficial Owner and the Company agree that if, during the Restricted Period, the Beneficial Owner requests the Holder to withdraw any of the Securities from an Incentive Plan (Released Securities), this document (other than this clause 8) will continue to apply to the Released Securities as if the Beneficial Owner had the same rights and obligations as the Holder on the date of this document. 8.3 Release The Company releases and holds harmless the Holder from all obligations under this document in relation to the Released Securities. 9 Facsimile The parties agree that an executed facsimile or copy of this document will be binding on all parties. 10 General 10.1 Governing law and jurisdiction Queensland law governs this document. Each party irrevocably submits to the exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts Counterparts This document may be signed in any number of counterparts. All counterparts together make one instrument Amendments and waivers This document may only be amended by written agreement between all parties. Any waiver of the restrictions in clause 2 by the Company must first be approved by the Underwriters in writing (such approval not to be unreasonably withheld) v1 Voluntary restriction deed 5

138 11 Notice 11.1 Method of giving notice A notice, consent or communication under this document is only effective if it is: (c) in writing, signed by or on behalf of the person giving it; addressed to the person to whom it is to be given; and given as follows: (i) (ii) (iii) (iv) delivered by hand to that person s address; sent by prepaid mail (and by prepaid airmail if the person is overseas) to that person s address; sent by to the person s address; or sent by fax to that person s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient When is notice given A notice, consent or communication delivered under clause 11.1 is given and received: if it is hand delivered or sent by fax or (i) (ii) by 5.00pm (local time in the place of receipt) on a Business Day on that day; or after 5.00pm (local time in the place of receipt) on a Business Day, or at any time on a day that is not a Business Day on the next Business Day; and if it is sent by post: (i) (ii) within Australia three Business Days after posting; or to or from a place outside Australia seven Business Days after posting Address for notices A person s address, fax number and address are those set out below, or as the person notifies the sender: v1 Voluntary restriction deed 6

139 Holder: Trinity Management Pty Ltd ACN Level 4, 302 Collins Street Melbourne, Victoria, 3000 Fax: (03) Company: Company Secretary ERM Power Limited Level 5, Riverside Centre 123 Eagle Street, Brisbane QLD 4000 Fax: (07) Beneficial Owner: [#insert] Fax: [#insert] [#insert] v1 Voluntary restriction deed 7

140 Schedule Particulars (clause 1) 1 Holder Trinity Management Pty Ltd ACN of Level 4, 302 Collins Street, Melbourne, Victoria, Beneficial Owner [#insert] of [#insert] 3 Restricted Period (the period during which the Securities are restricted) From the date of listing of the Company on ASX until the date that is 3 Business Days after the release of the Company s full year results for the period ending 30 June Particulars of Securities [#insert] ordinary shares in the issued capital of the Company (being [#insert] ordinary shares held in the LTIST and [#insert] ordinary shares held in the STIST) v1 Voluntary restriction deed 8

141 Execution EXECUTED as a deed Signed sealed and delivered by ERM Power Limited ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by Trinity Management Pty Ltd ACN by: Director Director/Secretary Full name of Director Full name of Director/Secretary Signed sealed and delivered by [#insert name] in the presence of: Signature of [#insert name] Signature of witness Name of witness (print) v1 Voluntary restriction deed 9