1. Definitions and interpretation

Transcription

1 Schedule 4 Notes Terms of lssue 1. Definitions and interpretation 1.1 Definitions ln this Schedule 4: Accrued Unpaid lnterest means, in respect of a Note, the aggregate interest per Note that has accumulated and not been paid. Business Day means a day (other than a Saturday, Sunday or public holiday) on which commercial banks are open for business in Sydney, Australia. Change of Control occurs if a person who did not previously do so acquires, holds or gains Gontrol of the Company. Company means Calibre Group Limited ACN 100 2SS 623. Control has the meaning given to that term in section 50AA of the Corporations Act. Gonversion means the conversion of a Note in accordance with clause 5 and Converted and Convert have the same meaning. conversion Notes has the meaning given to that term in clause s.4(bxii). conversion Date has the meaning given to that term in clause s.4(bxiii). conversion Notice has the meaning given to that term in clause 5.4(b), Gorporations Act means the Corporations Act 2001 (Cth). Face Value means per Note. Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world. lnsolvency Event means the occurrence of any one or more of the following events in relalion to the Company or a Group Company: (a) an application is made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed, and the application is not withdrawn, struck out or dismissed within 21 days of it being made; (b) a liquidator or provisional liquidator is appointed and the appointment is not terminated within 21 days of its being made; (c) an administrator or a controller is appointed to any of its assets and the appointment is not terminated within 21 days of it being made; (d) it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors; 23 AU_Active0'l v3 SEETOG

2 (e) it proposes a winding-up or dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors; (f) it is insolvent as disclosed in its accounts, or othenruise states that it is insolvent, or it is presumed to be insolvent under an applicable law; (g) becomes an lnsolvent under Administration under the Corporations Act or action is taken which could result in that event and the proceeding is not dismissed within 21 days of the date action is taken; (h) it is taken to have failed to comply with a statutory demand as a result of s 459F(1) of the Corporations Act; a notice is issued under ss 601M or of the Corporations Act and not withdrawn or dismissed within 21 days; 0) a writ of execution is levied against it or a material part of its property which is not dismissed within 21 days; (k) it ceases to carry on business or threatens to do so; or (t) anything occurs under the law of any jurisdiction which has a substantially sirnilar effect to any of the above clauses of this definition. lnsolvency Redemption Date means the date the lnsolvency Redemption Notice is delivered to the Company pursuant to clause 4.4(a). fnsolvency Redemption Notice has the meaning given in clause 4.4(b). lssue Date means the date on which the Notes are issued by the Company to the Noteholder. Interest Rate means 16% per annum. Law includes any law, statute, regulation, ordinance, authorisation, ruling, judgement and any order or decree of any Government Agency in any jurisdiction. Maturity Date means the dale 3 years after the lssue Date of the Notes. Maturity Notice has the meaning given to that term in clause 6(c). Noteholder means the registered holder of Notes. Notes means the convertible notes issued by the Company in accordance with these Terms of lssue. Ordinary Shares means the ordinary shares in the capital of the Company. Outstanding Amount means the total Face Value plus all Accrued Unpaid lnterest (if any) in respect of all of the Noteholder's Notes. Permitted Security lnterest means: 24 AU_Active v3 SEETOG

3 (a) the security created or expressed to be created by the Company by the general security agreement between the Company and the Noteholder and the general security agreement between the Company and Margaret O'Connor; (b) the security created or expressed to be created by the Company by the Security Documents, as that term is defined in the SPA; (c) any Security lnterest granted by the Company in favour of NationalAustralia Bank Limited in its capacity as security trustee for any lender or group of lenders that have made or will make available financial accommodation to the Company; (d) any lien or statutory charge arising by operation of Law and in the ordinary course of the Company's trading activities so long as the debt it secures is paid when due or contested in good faith and appropriately provisioned; (e) any title retention arrangement entered into by the Company in the ordinary course of its trading activities on the supplier's standard or usual terms of sale (or on terms more favourable) in respect of which the debt secured is paid when due; (f) any deemed security interest under section 12(3) of the PPSA which does not in substance secure the payment of money or the performance of any obligation by the Company; (g) any netting or set-otf arrangement entered into by the Company in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of the Company, or in respect of any hedge transactions entered into by the Company; (h) any lease or hire purchase contract which is entered into on the lessor's usual terms (or on terms more favourable to the Company) in the ordinary course of the Company's ordinary business and provided that the liability is paid when due; 0) a right of set-off included in a commercial contract in the ordinary course of day to day trading that does not secure finance debt; a Security lnterest in respect of money deposited with a bank or financial institution where that deposit is cash cover permitted under this agreement, (k) a deemed security interest under section 12(3) of the PPSA or section 17(1)(b) of the NZ PPSA, which does not secure payment or performance of an obligation; and (l) any other Security lnterest to which the Noteholder consents in writing Redemption means the repayment in full of the Redemption Amount in accordance with clause 3(f) and Redeemed and Redeem have the same meaning. Redemption Amount means, for a Note which is redeemed, the Outstanding Amount as at the Redemption Date. Redemption Notes has the meaning given to that term in clause 4.3(bxii). Redemption Date has the meaning given to lhat term in clause 4.3(bxiii). Redemption Notice has the meaning given to that term in clause 4.3(b). 25 AU ActiveOl v3 SEETOG

4 Related Party in relation to the Noteholder means: (a) a shareholder or director of the Noteholder as at the lssue Date; (b) an entity the Noteholder controls, (c) an entity that controls the Noteholder; and (d) an entity that is controlled by an entity or person that controls the Noteholder, (where 'control' has the meaning given in s50m of the Corporations Act) Security has the meaning given in section 92(3) of the Corporations Act. Shareholder means a holder of Shares in the Company. Shares means shares in the capitalof the Company. SPA means the share purchase agreement relating to the sale and purchase of shares in Diona Pty Ltd ACN between John Joseph O'Connor, Margaret O'Connor and the Company dated 28 October 2015 as amended pursuant to a leiter of variation dated 28 September 2017 and a letter of variation dated 3 October Tax means taxes, levies, imposts. charges and duties (including stamp and transaction duties) imposed by any authority together with any related interest, penalties, fines and expenses in connection with them. Terms of lssue means these lerms of issue. 1.2 lnterpretation (a) Unless the context othemrise requires, if there is any inconsistency between the provisions of the Constitution and these Terms of lssue, then, to the maximum extent permitted by law, the provisions of these Terms of lssue will prevail. (b) lf a calculation is required under these Terms of lssue, unless the contrary intention is expressed, the calculation will be performed to two decimal places. (c) Where, under these Terms of lssue, the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the following Business Day. (d) All references to $ are to Australian dollars. 2. Status of Notes Save as stated in these Terms of lssues, each Note: (a) constitutes a direct and unconditional obligation of the Company to repay the Outstanding Amount; (b) has an issue price equalto the Face Value; and (c) ranks equally with all other unsecured, unsubordinated obligations of the Company. 26 AU_ActiveO v3 SEETOG

5 3. lnterest (a) lnterest accrues on each Note, from and including the lssue Date up to and including the date on which the Note is Converted or Redeemed in accordance with these Terms of lssue. (b) lnterest: accrues daily at the lnterest Rate; and (ii) is calculated on actual days elapsed and a year of 365 days. (c) Subject to clause 3(d), interest in respect of the Notes is payable annually in arrears commencing on the date that is 1 year after the lssue Date (lnterest Payment Date) and until the Notes are Redeemed or Converted in accordance with these Terms of lssue. (d) The Company may elect to defer payment of up to 100% of the interest on the Notes payable on the lnterest Payment Date (Deferred lnterest Payment) for up to 3 consecutive years, provided that each Deferred Interest Payment may only be deferred untilthe Maturity Date. (e) lnterest will not accrue on a Deferred lnterest Payment, (f) AllAccrued Unpaid lnterest must be paid: 4. Redemption 4.1 Early Redemption at the date the Notes are Redeemed or Converted; or (ii) Converted to Ordinary shares in accordance with clause 5.5 (if applicable). (a) Subject to clause 4.1(b), the Company must not Redeem any Notes held by the Noteholder without the consent of the Noteholder... (b) The Company may offer to the Noteholder the option to Redeem any or all of its Notes at any time prior to the Maturity Date. (c) Acceptance by the Noteholder of an offer under clause 4.1(b) must be in writing addressed to the Company. 4.2 Redemption on lnsolvency Event At any time prior to the Maturity Date, the Noteholder may Redeem any or all of the Notes on the occurrence of an lnsolvency Event. 4.3 Redemption Notice (a) ln the event the Noteholder accepts the option to Redeem its Notes under clause 4.1(b), the Company must deliver a valid Redemption Notice to the Noteholder. (b) A valid Redemption Notice (Redemption Notice) must: 27 AU_Active v3 SEETOG

6 be in writing; (ii) specify the number of Notes the Noteholder has accepted to be Redeemed (Redemption Notes); (iii) specify the proposed date for Redemption (Redemption Date); and (iv) be delivered to the Noteholder at least 10 Business Days, but not more than 45 Business Days, before the applicable Redemption Date. 4.4 lnsolvency Redemption Notice (a) lf the Noteholder wishes to Redeem any Notes pursuant to clause 4.2 the Noteholder must deliver a valid lnsolvency Redemption Notice to the Company. (b) A valid lnsolvency Redemption Notice (lnsolvency Redemption Notice) must: be in writing; and (ii) specify the number of Notes to be Redeemed on the lnsolvency Redemption Date. 4.5 Effect of Redemption On Redemption: (a) all rights conferred or restrictions imposed on the Notes will no longer have effect: and (b) the Company will cease to have any payment obligations under these Terms of lssue in respect of any such Notes that have been so Redeemed. 4.6 Redemption payment (a) lf the Company issues a valid Redemption Notice pursuant to clause 4.3, it must Redeem all Redemption Notes on the Redemption Date and pay the Noteholder the Redemption Amount. (b) lf the Noteholder issues a valid lnsolvency Redemption Notice pursuant to clause 4.4,, the Company must Redeem that number of Notes that has been specified in the lnsolvency Redemption Notice on the lnsolvency Redemption Date and pay the Noteholder the Redemption Amount. (c) On the Maturity Date, the Company must Redeem that number of Notes not the subject of Conversion under the Maturity Notice and pay the Noteholder the Redemption Amount. (d) Any money payable in respect of any Notes must be paid in cash in Australian dollars by. eleclronic bank transfer of cleared funds into the bank account nominated by the Noteholder in writing from time to time (or by cheque mailed to the registered address of the Noteholder if the Noteholder has failed to provide details of a registered bank account); or 28 AU_ActiveO v3 SEETOG

7 (ii) any other method requested by the Noteholder and approved by the Company, (e) For the purpose of making payments to the Noteholder, any fraction of a cent will be disregarded. 5. Conversion 5.1 Conversion prior to Maturity Date (a) Subject to clause 5.1(b), the Company must not Convert any Notes held by the Noteholder without the consent of the Noteholder. (b) Subject to clause 5.3(a), the Company may offer to the Noteholder the option to Convert any or all of its Notes at any time prior to the Maturlty Date. (c) Acceptance by the Noteholder of an offer under clause 5.1(b) must be in writing addressed to the Company. 5.2 Conversion on Change of Control (a) subject to clause 5.2(b), if a change of control occurs, the company musl Convert allthe outstanding Notes in accordance with clause S. (b) The Company must, prior to a Change of Control occurring, offer to the Noteholder the option to Redeem any or all of its Notes at least 45 Business Days before the anticipated date for completion of the Change of Control by delivering a valid Change of Control Notice. (c) A valid Change of Control Notice (Ghange of Control Notice) must ( ii) (iii) be in writing; specify the anticipated date for completion of the Change of Control; specify that the Noteholder may elect in writing to Redeem any or all of its Notes on completion of the Change of Control; (iv) specify that any election by the Noteholder to Redeem any or all of its Notes on the completion of the Change of Control must be notified in writing to the company within 20 Business Days of receipt of the change of Control Notice; (v) specify that if the Noteholder does not notify the Company in writing of its election to Redeem any or all of its Notes on the completion of the Change of Control, the Company will Convert such number not elected to be Redeemed or all of its Notes on the completion of the Change of Control. (d) lf a Change of Control is anticipated, then the Company must, in respect of all outstanding Notes: issue a conversion Notice to each Noteholder at least 10 Business Days before the anticipated date for completion of the change of control but specify the date for conversion as the anticipated date for completion of the Change of Control; and 29 AU_Active v3 SEFTOG

8 (ii) if applicable, issue a Redemption Notice to each Noteholder for that number of Notes that the Noteholder has elected to Redeem under s.2(cxiv) at least 10 Business Days before the anticipated date for completion of the change of control but specify the date for Redemption as the anticipated date for complelion of the Change of Control. (e) lf the Company issues a Conversion Notice or a Redemption Notice to Noteholders under clause 5.2(d) but the Change of Control does not complete for any reason, then the Company must give written notice of this fact to each Noteholder and the Company will not be obliged to proceed with the Conversion and if applicable, the Redemption. 5.3 Restriction on Gonversion (a) Subject to clause 5.3(b), the Company must not Convert a number of Notes that would result in the Noteholder, post-conversion, contravening section 606 of the Corporations Act. (b) Where approval has not already been obtained and a Conversion would result in the Noteholder, post-conversion, contravening section 606 of the Corporations Act, the Company is only required to issue the number of Ordinary Shares that would not result in a breach of section 606 of the Corporations Act in accordance with clause 5.5 and in respect of the remaining part of the Conversion, the Company must, at the election of the Noteholder, either: convene a general meeting within 3 months after the date of the relevant Conversion Notice to seek to obtain approval under section 611(7) of the Corporations Act by the requisite majority of ordinary shareholders for the issue of the balance of the Ordinary Shares pursuant to the Conversion; or (ii) on the Conversion Date (or, if approval is sought but not obtained pursuant to clause 5,3(bxi), within 5 Business Days of the relevant general meeting), pay the Redemption Amount in respect of the non-converted Notes to the Noteholders. (c) lf the Company does not obtain the requisite approval of Ordinary Shareholders at a meeting convened under clause 5.3(bxi), any Notes in respect of which Ordinary Shares have not been issued or the Redemption Amount has not been paid will continue to be held by the Noteholder under these terrns (including a continuing right to Distributions) and, the Company must: use reasonable endeavours to find a solution to pay the Redemption Amount in respect of the non-converted Notes to the Noteholders, including the consideration of a new issue of shares made for the purpose of the Redemption; and (ii) subject to the Company having othenruise previously paid the Redemption Amount in respect of the non-converted Notes, if at any time after the general meeting convened under clause 5.3(bxi) a Conversion of some or all of the non-converted Notes held by that Noteholder would no longer result in a breach of section 606 of the Corporations Act, Convert the relevant number of Notes held by that Noteholder that would no longer result in a breach of section 606 of the Corporations Act into Ordinary Shares, no laier than 2 Business Days after such a time arises. 30 AU_Acliveo v3 SEETOG

9 5.4 Conversion Notice (a) ln the event the Noteholder accepts the option to the Conversion of its Notes under clause 5.1(b), the Company must deliver a valid Conversion Notice to the Noteholder. (b) A valid Conversion Notice (Conversion Notice) must: be in writing; (ii) specify the number of Notes ihe Noteholder has accepted to be Converled (Conversion Notes); (iii) specify the proposed date for Conversion (Conversion Date); and (iv) be delivered to the Noteholder at least 10 Business Days, but not more than 45 Business Days, before the applicable Conversion Date. (c) A Conversion Notice is irrevocable once delivered to the Noteholder. 5.5 Effect of Gonversion (a) Subject to clause 5.6, on a Conversion Date, the number of Ordinary Shares to be issued to the Noteholder in the event of Conversion is to be calculated as follows (with the reference to 'day' being a reference to days elapsed since the lssue Date): Number of Ordinary Shares = where: Outstanding Amount Conversion Price Conversion Price means: Date of Gonversion Conversion Price Conversion from day 1 to day Conversion from day 92 to day Conversion from day 183 to day Conversion from day 274 lo day Conversion from day 366 to day Conversion from day 731 io day (b) A Conversion willtake effect at 5.00pm (Sydney time) on the Conversion Date or, if the conversion Date is not a Business Day, then at 5.00pm on the next Business Day 31 AU*Active0l v3 SEETOG

10 (c) Conversion is a variation of the status and rights attaching to a Note that does not require the consent of the Noteholder. lt does not constitute a cancellation, redemption or termination of the Note or the issue, allotment or creation of a new Share. (d) On Conversion, the Company must make appropriate changes to the register of members of the Company and issue substitute certificates in respect of the converted Note. (e) The Ordinary Shares resulting from conversion of the Note will rank equally in all respects with all existing Ordinary Shares on issue in the capital of the Company at the time. (0 (g) On Conversion, all rights conferred or restrictions imposed on the Note will no longer have effect, On Conversion, the Company will, other than under clause 3(c), cease to have any payment obligations under these Terms of lssue in respect of any such Notes that have been so Converted. 5.6 Entitlement to payment of lnterest on Conversion (a) At least 5 Business Days before a Conversion Date, the Noteholder must give written notice to the Company specifying whether they wish to receive all Accrued Unpaid lnterest entitled under clause 3(a) either: in cash; or (ii) in Ordinary Shares. (b) lf a Noteholder elects to receive cash under clause 5.6(aXii), then, for the purposes of the formula in clause 5.5(a), the Outstanding Amount shall not include the Accrued Unpaid lnterest and the amount equalto the Accrued Unpaid lnterest must be paid by the Company to the Noteholder in accordance with clause 3(f). 5.7 Reconstructionsandreorganisations ln the event of any consolidation, Share split, bonus issue, buyback, cancellation, recapitalisation or similar capital restructure of the Ordinary Shares, then on Conversion the Notes will be restructured in the same manner as the Ordinary Shares in order that the Noteholders are not adversely prejudiced, 6. Redemption or Conversion on Maturity Date (a) At least 30 Business Days before the Maturity Date, the Noteholder may Convert or Redeem any or all of its Notes on the Maturity Date by delivering a valid Maturity Notice to the Company. (b) lf the Noteholder does not deliver a valid Maturity Notice to the Company in accordance with clause 6(a), the Company must Redeem all outstanding Notes. (c) A valid Maturity Notice (Maturity Notice) must be in writing; 32 AU_Ac1iveOl v3 SEETOG

11 (ii) specify the number of Notes to be Converted; and (iii) if applicable, specify the number of Notes to be Redeemed. (d) At least 10 Business Days, but not more than 20 Business Days before the Maturity Date, the Company must: where the Noteholder has elected to Convert any such number of its Notes pursuant to clause 6(c)(ii), issue a Conversion Notice in accordance with clause 5.4, but specifying the date for Conversion as the Maturity Date; and (ii) if applicable, where the Noteholder has elected to Redeem any such number of its Notes pursuant to clause 6(c)(iii) or has not notified the Company pursuant to clause 6(c)(ii) that it wishes to Convert any of its Notes, issue a Redemption Notice in accordance with clause 4.3, but specifying the date for Redemption as the Maturity Date. 7. Return of note certificates (a) Following Redemption or Conversion, each Noteholder must promptly surrender to the Company the note certificate relating to all Notes Redeemed or Converted. (b) lf the note certificates are lost, stolen or destroyed, the relevant Noteholder must provide a statutory declaration setting out the circumstances of such loss, theft or destruction (together with such indemnity the Company may require in relation to the note certificate being lost, stolen or destroyed) made by: the Noteholder; or (ii) the director or the secretary of the company which held the Notes. 8. Payments and withholding The Company must make all payments due under these Terms of lssue without: (a) any set-off, counterclaim or condition; or (b) if a Law requires the Company to deduct an amount in respect of Taxes from a payment under these Terms of lssue such that the Noteholder would not actually receive on the due date the full amount provided for under these Terms of lssue, the Company must: deduct the amount for the Taxes from the amount that otherwise would have been paid to the Noteholder; and (ii) pay to the relevant authority an amount equal to the amount deducted in accordance with applicable law and give the original receipt received from the relevant authority to the Noteholder. L Conduct prior to Conversion or Redemption Until such time as all Notes are either Converted or Redeemed, the Company must not without the prior written consent of the Noteholder, reduce its share capital or allot or issue any shares or any securities or loan capital convertible into shares, or purchase, 33 AU_ActiveO l 90'l v3 SEETOG

12 buy back, redeem, retire or acquire any such shares or securities, or agree to do so, or create any Security lnterest over any such shares or securities or assets of the Company or any of its subsidiaries (except any Permitted Security lnterest). 34 AU_ActiveO v3 SEETOG